author: FAULKNER, Justice.

text:
    B.V. CLEMONS v. FAIRVIEW MEDICAL CENTER, INC., and Sylvester L. Reeder, III, Administrator of Fairview Medical Center, Inc.
    82-749.
    Supreme Court of Alabama.
    April 6, 1984.
    Tyrone C. Means of Massey, Means & Thomas, Montgomery, for appellant.
    Solomon S. Seay, Jr., Montgomery, for appellees.
   FAULKNER, Justice.

B.V. Clemons brought this action for in-junctive relief, seeking to require Fairview Medical Center to reinstate his medical staff privileges at the hospital. Fairview and its administrator filed a motion to dismiss, asserting, inter alia, that the complaint failed to state a claim on which relief could be granted. After a hearing on plaintiff’s application for a temporary restraining order, the trial court entered an order granting the defendants’ motion to dismiss. Clemons appeals, and we reverse.

Although the trial court’s order purported to grant the defendants’ motion to dismiss, we note that the court considered matters outside the pleadings in making its decision. If, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to and not excluded by the trial court, the motion is properly treated as a motion for summary judgment. Rule 12(b), A.R.Civ.P. An appellate court will uphold the granting of a summary judgment when there exists no genuine issue of material fact and a party, in this case the defendant, is entitled to prevail as a matter of law. Green v. Bradley Construction, Inc., 431 So.2d 1226 (Ala.1983).

This case involves the interpretation of Fairview’s medical staff by-laws and the question of their application, vel non, to the plaintiff’s clinical privileges at the hospital. The by-laws provide a comprehensive procedure governing the granting, modification, and termination of clinical privileges at the hospital. The terms “medical staff privileges” and “clinical privileges” refer simply to the right of an individual to treat patients at Fairview. Fairview’s medical staff, then, consists of the practitioners who have been granted clinical privileges in the manner prescribed in the by-laws.

The facts are basically undisputed. Clemons, a licensed physical therapist, entered into a contract with Fairview in 1980 granting him the exclusive right to provide specified services to patients at the hospital. In exchange for the exclusive right to provide physical therapy services at the hospital, Clemons agreed to allow the hospital to bill Clemons’s patients for his services and to keep a portion of the funds collected. In order for Clemons to be eligible to treat patients at Fairview, it was necessary for him to obtain clinical privileges. He submitted an application for membership on the medical staff, along with a letter stating that he was making application for the privilege of practicing physical therapy at Fairview. By return mail, Fair-view advised Clemons that the board of directors had approved his appointment to the medical staff at the hospital. Enclosed with the letter was a copy of the by-laws and rules and regulations of the medical staff. Clemons treated all of Fairview’s patients requiring his services until his contract expired on June 30, 1982. At that time the contract was awarded to another physical therapist. Although his contract had expired, Clemons took the position that, as a member of the Fairview medical staff, he was still entitled to treat patients at the hospital. Presumably, Clemons could treat any patients who, either on their own or through their physician, requested his services. Clemons would, then, bill his patients directly. On December 3, 1982, however, Fairview sent Clemons a letter stating that, after a review of the medical staff by-laws, it had determined that physical therapists were not eligible for membership on the medical staff. Clemons’s initial appointment to the staff was, therefore, Fairview said, an error, and by the letter Fairview purported to terminate Clemons’s medical staff privileges.

On appeal Clemons argues that the termination of his medical staff privileges was a violation of the provisions of the medical staff by-laws. He takes the position that the by-laws constituted a contract between him and the hospital which Fairview breached by terminating his membership on the staff without providing him a hearing as is provided for in the by-laws.

The hospital argues that Clemons was not entitled to the due process safeguards set out in the by-laws because he was never entitled to become a member of the medical staff. The by-laws provide that membership on the medical staff “shall be extended only to professional competent practitioners” who meet the qualifications set out in the by-laws. The term “practitioner” is defined as an appropriately licensed physician, dentist, or podiatrist. Since Clemons is neither a physician, a dentist, nor a podiatrist, the hospital argues that he was not eligible to join the medical staff and, therefore, was not entitled to enjoy medical staff privileges.

Although, in our examination of the bylaws, we note that the term “practitioner” is used throughout the document, we also note that the by-laws govern the granting of clinical privileges to physical therapists as well. Physical therapists are members of a class referred to in the by-laws as “allied health professionals.” Article IV of the by-laws is entitled “Categories Of The Medical Staff.” It contains four sections, one of which sets forth the criteria for determining the eligibility of allied health professionals to treat patients at the hospital. In addition to the inherent ambiguity of the by-laws, which purport to apply only to physicians, dentists and podiatrists, yet govern the clinical privileges of those who treat patients under the supervision of physicians as well, the testimony at the hearing supported Clemons’s assertion that he and the hospital agreed that his clinical privileges were to be governed by the medical staff by-laws. The assistant administrator of the hospital, Robert Taylor, testified that it had been the practice of the hospital in the past to treat the allied health professional staff as a part of the medical staff. On questioning by plaintiff’s attorney, Mr. Taylor testified:

“Q. [The] allied health professional staff, sir, is governed by the medical staff and the medical staff bylaws; isn’t that correct?
“A. Yes.
"Q. Now, under your reading and your interpretation of the by-laws, must an allied health professional have clinical privileges in order to practice his profession at Fairview Medical Center?
“A. Yes.”

On examination by the defendant’s attorney, Mr. Taylor was questioned about the basis for his construction of the by-laws with regard to allied health professionals.

“Q. Now, you threw a term at me, Robert, that I do not find anywhere— allied health professional staff. Where did you get that term from?
“A. Okay. I can only go on what has been the practice. The allied health professionals have been considered the allied health professional staff of the medical staff.
“Q. Is there any place in the [by-laws] or any other document that you are familiar with that makes any provision for an allied health professional staff?
“A. It is covered under the categories of the medical staff, and it is listed as number four, as allied health professional.”

In our opinion the defendants were not entitled to a judgment as a matter of law. The by-laws themselves are ambiguous with regard to their applicability to the plaintiff. Furthermore, there was evidence which would support a conclusion that the hospital made representations to Clemons when he began practicing at the hospital that he would be treated as a member of the medical staff and that he was accorded membership on the staff for over two years before the hospital reinterpreted the bylaws. Whether the hospital should now be allowed to rely on another interpretation of the by-laws is a question which should be determined after a full hearing on the merits.

In Medical & Surgical Society of Montgomery County v. Weatherly, 75 Ala. 248 (1883) (subsequent proceedings reported at 76 Ala. 567), this Court ruled that a medical society could be compelled to reinstate a member whose membership was terminated in a manner contrary to the provisions of the society’s constitution and by-laws. Plaintiff’s complaint, therefore, stated a claim on which relief can be granted. The record, when viewed most favorably toward the plaintiff, who is the non-movant, does not support a conclusion that the defendants were entitled to a judgment as a matter of law. The trial court’s order is reversed and the ease is hereby remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: BRADLEY, Judge. ,

license: Public Domain

text:
    Gill C. McKINNEY and Rhonda McKinney v. KIMBERLY-CLARK CORPORATION and Douglas Wesson.
    Civ. 3323-X.
    Court of Civil Appeals of Alabama.
    Sept. 22, 1982.
    Rehearing Denied Oct. 27, 1982.

      B. Greg Wood of Love, Love, Lawrence & Wood and Jack A. Wallace, Talladega, for appellant.
    B. Clark Carpenter, Jr. of Wooten, Boy-ett, Thornton, Carpenter & O’Brien, Tal-ladega, for appellee.
   BRADLEY, Judge. ,

This is a malicious prosecution case.

On August 29, 1977 Douglas Wesson, a security guard for Kimberly-Clark Corporation who was working the night shift, saw a Chevrolet Blazer truck with the door open on the driver’s side as he patrolled the staff house area near the Kimberly-Clark golf course at Talladega. Wesson noticed that a man was stooped inside the vehicle rummaging around and that an Oldsmobile Cutlass was parked directly behind the Blazer. Wesson got out of his vehicle and approached the Blazer from a distance of fifteen to twenty feet. The man who had been stooped inside the Blazer also moved toward Wesson until they came within two to three feet of one another. At that time a brief conversation took place between them in which the man told Wesson that he had been waiting for another individual and that his wife had been ill. Wesson took out his walkie-talkie and radioed headquarters at Kimberly-Clark for help. Subsequently, the other man pulled a gun and told Wesson to “hold it.” The man from the Blazer took Wesson’s walkie-talkie and headed back to the Cutlass. He drove the car directly toward Wesson. Wesson threw a piece of pulpwood log at the car, striking the driver on the head. The man in the Cutlass drove toward Talladega with Wesson unsuccessfully giving chase.

Wesson reported the incident to his supervisor and the personnel department at Kimberly-Clark. On the next evening he saw Gill McKinney, who was also a Kimberly-CIark employee, at work and recognized him as the man who had been involved in the incident at the staff house. Shortly after the Labor Day shutdown, Wesson looked through employment records and identified McKinney as the man who had been involved in the incident. Wesson signed arrest warrants charging McKinney with breaking into an automobile and unlawfully presenting a firearm.

McKinney, who had been on a ninety-day probationary status as a Kimberly-Clark employee, was fired. On November 14, 1977 the District Court of Talladega County found McKinney guilty on the pistol charge, and he appealed his conviction to the circuit court. He was later indicted by the grand jury on the charge of burglary of an automobile but was subsequently acquitted. Thereafter, the charge of unlawfully presenting a firearm was nol-prossed.

On January 24, 1980 Gill McKinney and his wife, Rhonda, filed a complaint against Wesson and Kimberly-Clark Corporation seeking damages for false imprisonment and malicious prosecution. Later the plaintiffs voluntarily struck the false imprisonment count. On November 30, 1981 at the beginning of the trial, the defendants filed a motion in limine and a motion to strike, seeking to exclude evidence that McKinney had lost his job at Kimberly-Clark as a result of the incident at the staff house. Both motions were granted. The defendants filed motions for directed verdicts at the close of the McKinneys’ case and at the close of all of the evidence. Both motions were overruled. On December 2, 1981 the jury assessed damages at one dollar each against Kimberly-Clark and Wesson. No post-trial motions were filed.

The plaintiffs have appealed to this court contending that the trial court erred in granting the motion in limine and the motion to strike which excluded evidence of McKinney’s firing at Kimberly-Clark. The defendants have cross-appealed, claiming that the trial court should have granted their motions for directed verdict.

Plaintiffs first argue that the court improperly excluded evidence of McKinney’s firing at Kimberly-Clark. Such evidence, they say, is relevant to the issue of damages in the malicious prosecution action. Defendants reply that McKinney’s employment was terminable at will and that he could be discharged for any reason; hence such evidence would not be relevant in the present action. They further argue that the plaintiffs have not properly preserved this issue for appeal.

The defendants say that since the McKinneys never tried to offer the evidence excluded by the motion in limine, they cannot now argue the issue on appeal. We disagree. In reviewing the record we note that the McKinneys not only took exception to the grant of the motion in limine, but they also asked Gill McKinney, during his testimony, when he worked for Kimberly-Clark. The defendants objected, and the objection was sustained. At that point the attorneys held a conference out of the hearing of the jury. The defendants’ attorney stated that the court had already granted a motion in limine to exclude such evidence and stated that the defendants would ask the court to take any necessary action if the McKinneys made further attempts to introduce evidence contrary to the court’s ruling. We believe that the McKinneys properly preserved this issue for appeal.

Defendants say, in answer to plaintiffs’ argument that the trial court improperly excluded evidence that Gill McKinney had been fired without cause, that one who is employed at will may be terminated at any time with or without cause. In Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977), our supreme court said that an employee at will may be fired for “a good reason, a wrong reason, or no reason.” Moreover, it does not matter whether the discharge by the employer was malicious or done for other improper reasons. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). Thus, an employee at will is precluded from bringing an action for wrongful discharge against his former employer.

In the instant case the record shows that Gill McKinney was employed on a ninety-day probationary status and that at the time of his firing he was still within this period. However, we do not believe that the rule of law enunciated in Hinrichs, supra, and Comerford, supra, is controlling in the case at bar. Both of those cases stand for the proposition that an employee may not bring a wrongful discharge action against a former employer for dismissal under a contract at will. In this case, we are not faced with a breach of a contract of employment, but rather a tort action based on a theory of malicious prosecution.

In Slovensky v. Birmingham News Co., 358 So.2d 474 (Ala.Civ.App.1978), we said that “the action arising from an employee’s wrongful discharge is in contract and not in tort, unless the discharge is accompanied by other wrongful conduct amounting to a tort or involved a breach of duty imposed by law.” (Citations omitted.) The fact that the McKinneys have based their claim on a malicious prosecution theory removes the action from the realm of contract in which an employee is prohibited from suing his employer for wrongful discharge and places it squarely in tort.

In a malicious prosecution action, “[t]he plaintiff may recover all compensatory damages caused by the malicious prosecution.” C. Gamble & D. Corley, Alabama Law of Damages § 36-39 (1982). The plaintiffs claim that evidence of Gill McKinney’s loss of employment at Kimberly-Clark was relevant to the issue of damages in the malicious prosecution action. Even though Gill McKinney would be prohibited from suing his employer for wrongful discharge, we agree that the loss of employment is an element of damages to be considered by the jury in a malicious prosecution suit. Although we have found no case in Alabama precisely on point, the law of other jurisdictions clearly indicates that loss of employment which is proximately caused by the malicious prosecution should be considered in assessing damages. See Koris v. Norfolk & W. Ry. Co., 30 Ill. App.3d 1055, 333 N.E.2d 217 (1975); Sonnichsen v. Streeter; 4 Conn.Cir.Ct. 659, 239 A.2d 63 (1967). Therefore, we hold that the motion in limine was improperly granted.

The McKinneys also contend that the trial court erred in granting the defendants’ motion to strike their claim for compensatory damages based on Gill McKinney’s loss of employment. Their argument is based on the contention that since the motion was not filed until the first day of trial, it was not timely filed under rule 12(f), Alabama Rules of Civil Procedure. Rule 12(f) requires that a motion to strike must be “made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 30 days after the service of the pleadings upon him.” However, the rule also allows the trial court to strike materials from the pleadings on its “own initiative at any time.” Even though the trial court had the power to strike allegations in the pleadings concerning Gill McKinney’s firing ex mero motu, we believe that in this case its action was improper. As we have already stated, loss of employment is relevant to the issue of damages in a malicious prosecution action; and for this reason, it was improper for the trial court to strike allegations concerning Gill McKinney’s firing at Kimberly-Clark. See Koris, supra; Sonniehsen, supra.

The defendants in their cross-appeal argue that the trial court should have granted their motion for directed verdict. The record shows that they failed to file a motion for j.n.o.v. or a motion for a new trial. In several recent cases our courts have held that an appellate court is precluded from reviewing the sufficiency of the evidence in the absence of a timely post-trial motion for j.n.o.v. Great Atlantic & Pacific Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979); Deatherage v. Walker, 387 So.2d 845 (Ala.Civ.App.1980). As a result of defendants’ failure to file timely post-trial motions, this issue has not been preserved for review.

For the foregoing reasons, we find that the trial court improperly granted the motion in limine and the motion to strike.

REVERSED AND REMANDED.

WRIGHT, P.J., and HOLMES, J., concur.


author: ADAMS, Justice. TORBERT, Chief Justice BEATTY, Justice

text:
    Ex parte KIMBERLY-CLARK CORPORATION and Doug Wesson. (In re Gill C. McKINNEY and Rhonda McKinney v. KIMBERLY-CLARK CORPORATION and Douglas Wesson).
    82-125.
    The Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Dec. 22, 1983.
    Clark Carpenter of Wooten, Boyett, Thornton, Carpenter & O’Brien, Talladega, for petitioners.
    B. Greg Wood of Wood, Hollingsworth & Willis and Jack A. Wallace, Talladega, for respondents.
   ADAMS, Justice.

We granted the petition for writ of cer-tiorari in this case to consider the following issue:

Did the circuit court err in granting the motion in limine which prevented plaintiff from introducing evidence of loss of wages as one element of damages in his malicious prosecution action?

The Court of Civil Appeals found error regarding this issue. After careful consideration, we affirm that court’s decision.

The facts of the case are set out in the opinion of the Court of Civil Appeals. We see no need to repeat them, but proceed directly to a discussion of the issue. The petitioners, Kimberly-Clark and Doug Wesson, argue that they are protected from liability for damages resulting from the loss of Gill McKinney’s job because he was an employee at will, and, thus, could have his employment terminated at any time for any reason. They note that this means a good reason, a wrong reason, or no reason. See Martin v. Tapley, 360 So.2d 708 (Ala. 1978); Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977). Petitioners argue that because Kimberly-Clark could terminate McKinney’s contract for any or no reason, the evidence of such termination is irrelevant in a malicious prosecution action in which Kimberly-Clark is a defendant.

The problem with this argument, as pointed out by the court below, is that this is not an action for wrongful termination of employment, but one for malicious prosecution. The jury found that the petitioners had maliciously prosecuted McKinney. Kimberly-Clark stipulated that Wesson had been acting as its agent in instituting criminal proceedings against McKinney. While it is clear from the cases referred to above, as well as numerous other Alabama cases, that Kimberly-Clark had a legal right to terminate McKinney’s employment, it had no such right to maliciously prosecute him through its agent.

We agree with the Court of Civil Appeals that loss of employment may be an element of damages in a malicious prosecution case. In addition to the authorities referred to by that court, we note that Prosser states the general rule that the plaintiff in a malicious prosecution case may recover “for any specific financial loss, such as the loss of present or prospective employment, which can be proved with reasonable certainty to have been caused by the prosecution, provided that it is regarded as a foreseeable, or normal, consequence of the criminal proceeding.” W. Prosser, Handbook of the Law of Torts § 119 (4th ed. 1971).

Although Alabama law gives an employer the legal right to maliciously terminate the employment of an employee at will, we decline to extend that right so as to allow the employer also to maliciously prosecute such an employee without being liable for all the elements of damages allowed in any other malicious prosecution case. Therefore, we hold that the plaintiff in a malicious prosecution case against the plaintiff’s employer should be allowed to introduce evidence that his or her loss of employment was caused by the malicious prosecution, and that it was a forseeable, normal or natural consequence thereof. Of course, the plaintiff must also prove the damages resulting from the termination.

For the foregoing reasons, we affirm the judgment of the Court of Civil Appeals, 449 So.2d 790.

AFFIRMED.

FAULKNER, JONES, SHORES and EM-BRY, JJ., concur.

TORBERT, C.J., concurs specially.

MADDOX, ALMON and BEATTY, JJ., dissent.

TORBERT, Chief Justice

(concurring specially).

I concur specially in order to draw attention to the unusual facts in this case and the evidentiary difficulties inherent in plaintiff’s theory of recovery for loss of employment.

An employer can discharge an employee, hired under a contract at will, for any reason, including a malicious one, and the employee cannot recover for wrongful termination of employment. See, e.g,, Hinrichs v. Tranquilaire Hosp., 352 So.2d 1130 (Ala.1977). Yet, loss of employment can constitute an element of damage in a malicious prosecution claim. See Restatement (Second) of Torts § 671 (1965). See generally C. Gamble & D. Corley, Alabama Law of Damages §§ 36-39 (1982).

This case is confusing because it does not involve the usual facts which give rise to a malicious prosecution action. Typically, A maliciously prosecutes B. As a result, B’s employer, company C, discharges him. In the subsequent suit by B against A, B may recover for his loss of employment with C. In the present action, Kimberly-Clark Corporation is both the employer and the malicious prosecutor. This factual twist appears to create a conflict between these doctrines. If plaintiff is permitted to recover against Kimberly-Clark, we would appear to be approving an exception to the rule that an employee at will cannot recover for wrongful termination. By the same token, if plaintiff is not allowed to recover employment damages, then we would be denying him just compensation merely to prevent the appearance of conflict with the employee termination doctrine.

The solution to this dilemma is to consider whether plaintiff, in this case, can prove that his loss of employment was caused by Kimberly-Clark’s malicious prosecution. Although the facts which gave rise to criminal charges were the same as those which led to plaintiff’s termination, the actual filing of criminal charges (the gravamen of the malicious prosecution action) probably did not cause plaintiff’s termination. In virtually every case where the employer and malicious prosecutor are the same, the employee will be unable to prove that his termination was caused by the filing of criminal charges. It seems unlikely that a company would file criminal charges against an employee and still retain his services.

Although plaintiff probably cannot demonstrate in this action that the prosecution caused his termination, the loss of employment is a proper element of damage in a malicious prosecution case. Since plaintiff was not given an opportunity to present evidence aimed at proving that the malicious prosecution caused his loss of employment, I concur in remanding this case to the trial court for further proceedings.

BEATTY, Justice

(dissenting):

The majority’s decision represents the beginning of the end for the contract at will. The result here is a curious one. The majority recognizes that an employee hired under a contract at will may be terminated by the employer for any reason. It then proceeds to conclude that somehow a malicious prosecution form of action against the employer imposes a legal responsibility on that employer to pay the “lost wages” to the discharged employee. In other words, the form of action selected somehow allows the employee at will to recover wages which the employee clearly could not have earned simply because he had been discharged by an employer who had the legal right to terminate his employment for any reason.

Until this decision, under a contract at will an employer could discharge an employee for any reason, even a malicious reason. Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980); Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977); Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). That is to say, the employer had the absolute and unequivocal legal right to terminate his obligation to pay wages to that employee. Thereafter, the employer did not owe the employee any wages and, so, no “lost wages” could accrue. And, of course, none could be recovered by an employee who alleged that the employer had maliciously discharged him. There being no “lost wages” to be collected, it follows that none could be made an element of damages in any lawsuit.

The special concurrence attempts to modify the thrust of the majority’s opinion by introducing an element of “proximate cause” so that after the employer “proximately caused” the discharge, he could be required to pay lost wages. This position is as ludicrous as that of the majority. The employer of an employee at will, having exercised his perfectly legal option to stop any commitment for future wages, cannot be required to pay “lost wages” which could never have existed. But, since the majority would require the employer to pay such wages, the majority has simply rewritten the contract for the parties, the consequences being that the contract for employment at will becomes a contract for an employment at term during which fictitious “lost wages” have accrued.

From this, it follows that the contract at will doctrine has, to a serious extent, been abrogated.

MADDOX and ALMON, JJ., concur.


author: SAM TAYLOR, Judge.

text:
    Patrick BATTEASTE v. STATE.
    1 Div. 559.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 16, 1983.
    John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   SAM TAYLOR, Judge.

On January 3, 1983, Patrick Batteaste was found guilty of robbery in the first degree by a Mobile Circuit Court jury. He was sentenced to life imprisonment.

Appellant’s only issue on appeal involves a request made to the court by the jury a few minutes after it first retired to deliberate.

At trial, the victim testified that the individual who robbed him had had a scar on the left side of his face. The defendant chose not to take the stand but was, of course, present in the courtroom during the trial.

The record reveals that a short while after the jury began its deliberations; the following transpired:

“(Jury notification to bailiff)
“THE COURT: The jury is out of the room. The jury has sent an inquiry to me as to whether or not they can see the defendant’s face. They want to see if he has got a scar on his face; those were the exact words. What’s the position of the State?
“MS. BEDWELL: Judge, I don’t have any objection to it.
“THE COURT: What about it?
“MR. BERTOLOTTI: Judge, the evidence is closed. It is all in. To allow the introduction of additional evidence at this point, I think it would be—
“THE COURT: That’s not evidence, is it?
“MS. BEDWELL: I don’t think so, Judge.
“MR. BERTOLOTTI: I think it is evidence.
“THE COURT: Well, I am going to do it anyhow. I am going to overrule your objection.
“MR. BERTOLOTTI: Judge, I am strongly objecting that the evidence is all in. It is closed.
“THE COURT: All right. Overrule objection. Bring the jury in.
“(Jury present)
“THE COURT: Ladies and gentlemen of the jury, your question has been transmitted to me. I understand it is, you want to look at the defendant’s face; is that correct?
“(Jurors nodding in the affirmative)
“THE COURT: No one may ask the defendant any questions, but the Court wants the defendant to come over here and stand and turn both sides of his face to the jury.
“MR. BERTOLOTTI: Go stand over there. Turn both sides of your face to the jury, Pat.
“(Defendant complies)
“MR. BERTOLOTTI: Show them the other side. Show them both — Show them the other side of your face now.
“THE COURT: Turn the other side now. “(Defendant complies)
“MR. BERTOLOTTI: Is that-all, Judge?
“THE COURT: All right. You can be seated. All right. Ladies and gentlemen, you can return to the jury room and resume your deliberations. The defendant has exception to the Court's ruling.
“(Jury retires for further deliberations at 3:30 p.m.)”

At 3:55 p.m., the jury found the defendant guilty as charged in the indictment.

Appellant claims that since no evidence was presented at trial on the issue of whether or not he had a facial scar, the view given to the jury of his face constituted new evidence and amounted to an improper reopening of the case.

It is true that cases construing § 15-14-4, Code of Alabama 1975, have held that while it is within the court’s discretion to reopen a case and present evidence any time prior to the close of final arguments, to do so after submission of the case to the jury is error. Jolly v. State, 405 So.2d 76 (Ala.Cr.App.1981).

However, we find that the trial court’s acquiescence to the jury’s request did not amount to a reopening of the evidence in the case. The appellant was present throughout the trial. It is impossible to suppose that during that time his face was never visible to any members of the jury. The opportunity given to the members of the jury to see the appellant’s face again did not convey any information to them that was not available during trial. Jolly, supra. Merriweather v. State, 364 So.2d 374 (Ala.Cr.App.) cert. denied, Ex parte Merriweather, 364 So.2d 377 (Ala.1978).

Thus, we find no merit in the issue raised by appellant and the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice. MADDOX, Justice.

text:
    Ex parte Patrick BATTEASTE. (Re: Patrick Batteaste v. State of Alabama)
    82-1191.
    The Supreme Court of Alabama.
    Feb. 3, 1984.
    Rehearing Denied, Opinion Modified, March 9, 1984.

      John Bertolotti, Jr., Mobile, for petitioner.
    J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
   MADDOX, Justice.

We granted certiorari to review the decision of the Court of Criminal Appeals, 449 So.2d 797, in which the court decided the trial judge did not err when he permitted the jury, over objection of the defendant, to view the defendant’s face to see if he had a scar on it.

The Court of Criminal Appeals, while acknowledging that it is error to reopen a case and allow presentation of evidence after a case has been submitted to the jury, nevertheless found that granting the jury’s request to view the appellant’s scar did not amount to a reopening of the evidence because the appellant had been present throughout the trial and thus the court’s action did not convey any information to the jurors not available during the trial. See Jolly v. State, 405 So.2d 76 (Ala.Cr. App.1981).

We disagree with the court’s rationale, because where, as here, the evidence relates to the person of the accused, the principle of law in Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972), is controlling. In Harnage, the Court ruled that a jury request to view the hands of the defendant, who was charged with murder by strangulation, came too late because the case had already been presented to the jury and any member of the jury had had the opportunity to observe the defendant’s hands during the trial, particularly while the defendant was testifying in his own behalf. 290 Ala. at 144, 274 So.2d at 354.

Consequently, the judgment is reversed and the cause remanded to the Court of Criminal Appeals.

REVERSED AND REMANDED.

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

ON APPLICATION FOR REHEARING

MADDOX, Justice.

OPINION MODIFIED, APPLICATION FOR REHEARING OVERRULED.

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


text:
    Patrick BATTEASTE v. STATE.
    1 Div. 559.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
   AFTER REMANDMENT

SAM TAYLOR, Judge.

After remand by the Supreme Court of Alabama, this case is reversed and remanded, upon the mandate of Ex parte Batteaste, 449 So.2d 798 (Ala.1984).

REVERSED AND REMANDED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Garcila DAWSON v. STATE.
    3 Div. 793.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

Appellant, Garcila Dawson, was indicted by a one-count indictment charging that he intentionally murdered Ronnie Hardy in violation of § 13A-6-2, Code of Alabama 1975. He was convicted of murder and sentenced to a term of twenty years’ imprisonment.

We need only address Dawson’s first contention of error. He argues that the trial court erred in giving the following charge to the jury in which the jury was instructed they could convict Dawson if they found he acted “recklessly:”

“A person commits the crime of murder, if, with the intent to cause the death of another person, he causes the death of that other person, or of anyone else, or under circumstances manifesting extreme indifference to human life, somebody recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person....
“I will go through it again. A person commits the crime of murder if, with the intent, somebody acts with intent when he acts with a purpose of accomplishing that which he accomplishes. So a person commits the crime of murder if, with a purpose to cause the death of somebody, he causes the death of that person, or of anyone, or under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of somebody other than himself. And recklessly — the law says somebody acts recklessly when he is aware of, and consciously disregards a substantial and unjustifiable risk that the result will occur, or that the circumstances exist. And, that is recklessly.”

Dawson contends that, because the indictment alleges that he acted intentionally in causing the victim’s death (§ 13A-6-2(a)(1)), the trial court should not have charged on the reckless murder alternative contained in § 13A-6-2(a)(2). The Alabama Supreme Court has recently resolved this exact issue in Ex parte Washington, 448 So.2d 404 (Ala.1984). There, the court held that “the trial court erred in giving an instruction on ‘universal malice’ murder. Defendant has a constitutional right to be informed of the charges against him. U.S. Const, amend VI; Ala.Const., art. I § 6.” In accordance with Washington, this cause is reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.

      . Judge Hubert Taylor resigned from the Court of Criminal Appeals on April 2, 1984. The Judges of the Court of Criminal Appeals had concurred in this decision prior to his resignation.


author: BOWEN, Presiding Judge.

text:
    Ellie MARTIN v. STATE.
    3 Div. 980.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Ellie Martin, pro se.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.'
   BOWEN, Presiding Judge.

Ellie Martin appeals from the summary dismissal of his pro se petition for writ of habeas corpus challenging the revocation of two years good time. His petition was dismissed upon motion of the State. Although the State’s motion to dismiss failed to allege any grounds which would support the dismissal of Martin’s petition, a dismissal was warranted because the petition was not properly verified. Barnhill v. State, 439 So.2d 822 (Ala.Cr.App.1983); Barker v. State, 437 So.2d 1375 (Ala.Cr. App.1983); O'Such v. State, 423 So.2d 317 (Ala.Cr.App.1982). “If the ruling of the trial court is correct for any reason, it will not be reversed.” Collier v. State, 413 So.2d 396, 403 (Ala.Cr.App.1981), affirmed on other grounds, 413 So.2d 403 (Ala. 1982).

The record does not contain a copy of the Disciplinary Report. The only copy of this report is found as an exhibit attached to the Appellant’s pro se brief. Exhibits attached to the briefs of the parties are not part of the record and cannot be considered by appellate courts. Cooper Transfer Co., Inc. v. Alabama Public Service Commission, 271 Ala. 673, 677, 127 So.2d 632 (1961).

This Court is well aware that the appellate courts of this state have repeatedly held that we are bound by the contents of the record before us. E.g. Butler v. State, 285 Ala. 387, 393, 232 So.2d 631 (1970), cert. denied, 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed.2d 140 (1972); Vincent v. State, 399 So.2d 923, 925 (Ala.Cr.App. 1981); Hinds v. Hinds, 415 So.2d 1122, 1128 (Ala.Civ.App.1982). See generally cases at 7 Ala.Digest, Criminal Law Key No. 1111(1) (1979 & Supp.1983); 2 Ala.Digest, Appeal & Error Key No. 712 (1955 & Supp.1983). However, in an effort to expedite matters should a properly verified petition be filed, we note that the Disciplinary Report “does not contain a written statement by the disciplinary board setting forth the ‘ “evidence relied on and reasons” for the disciplinary action’ as required by Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974).” Barnhill, supra. The “Committee findings & reasons” are stated as follows on the Disciplinary Report:

“In closed session and on secret ballot the board finds inmate Martin guilty as charged. This decision was based on the statement of the arresting officer and the amount of time involved. Inmate Martin did not have permission from the Director to leave his authorized sponsor and residence.”

This statement is essentially the same as those in Barnhill and Barker, supra, and does not meet the requirements of Wolff. See also Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981).

The judgment of the circuit court dismissing Martin’s petition is affirmed.

AFFIRMED.

All Judges concur.


author: ALDERMAN, Chief Justice. OVERTON, Justice,

text:
    Theodore Augustus BASSETT, Appellant, v. STATE of Florida, Appellee.
    No. 58803.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied May 24, 1984.

      Richard R. Cook and Carmen P. Cor-rente, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen. and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.
   ALDERMAN, Chief Justice.

Appellant appeals his two convictions of first-degree murder and his sentence of death. We affirm the convictions and death sentence.

On December 12 and 13,1978, appellant’s codefendant, John Cox, directed the Volu-sia County Sheriff’s Department to the skeletal remains of two bodies. Cox confessed to the murders and implicated appellant.

At the time the bodies were discovered, the sheriff’s department was holding appellant, apparently on an unrelated felony charge. The state advised the trial court that appellant had relevant information concerning the disappearance of the victims and that appellant was willing to talk to authorities if the court would provide counsel. Because the public defender represented codefendant Cox, the court appointed private counsel to represent appellant during any questioning and negotiations arising from the state’s investigation into the victims’ deaths. After the investigation was complete, the appointed attorney moved to be discharged, advising the court that he had fulfilled his appointed duties, and stated that the appellant was incarcerated for “a felony charge for which counsel has not been appointed and he will require [further] services of appointed counsel.” The appointed attorney further advised the court that he would be out of state and suggested the public defender be appointed. The trial court granted the motion to discharge but did not immediately appoint new counsel.

The investigating officers approached appellant after counsel had withdrawn. They testified that they advised appellant of his Miranda rights and that he then asked to speak with his attorney. The officers informed him that his attorney had withdrawn but that they could contact another one for him. When the officers stood up to leave, appellant responded “Well, what do you want anyway?” The officers told appellant that Cox had implicated him and that they had recovered the bodies. This led to appellant’s two-day confession. The officers continually gave appellant Miranda warnings and obtained a signed waiver of rights form each day.

Appellant’s confession revealed the following. Appellant met the victims, James Boucher and Daryl Barber, both age eighteen, while walking on Daytona Beach. They had a bag of marijuana with them and were smoking a marijuana cigarette at the time. Appellant told the two boys that he knew of the party they were looking for and offered to take them there. The three drove in the boys’ ear first to the boys’ motel room so one could change clothes, and then to a nearby fast-food restaurant to pick up codefendant Cox. Appellant and Cox schemed to steal the boys’ marijuana and any money that they might have. After smoking a few marijuana cigarettes and stopping for gas, either appellant or Cox displayed a gun and directed the boys to drive down an isolated dirt road. After they took the remaining marijuana and the money, Cox determined that the boys would have to be killed to cover up the robbery. Appellant and Cox then marched their victims approximately a mile through an adjacent swamp. At some point, the victims were instructed to discard their shoes, and their hands were tied behind their backs with their belts. Later, Cox told the boys to lie down and both captors beat the victims with a rotten tree limb. Frustrated because the limb kept breaking, Cox knocked one boy in the face with the pistol butt, apparently fracturing his jaw. After the captors decided that the murders could not be accomplished there, Cox returned for the car. The victims were forced into the vehicle’s trunk so that no one would see them or hear screams for help. Appellant and Cox then returned to the victims’ motel room and removed all belongings to make it appear as if the occupants had checked out. With the boys still in the trunk for what must have been hours, the captors went to Cox’s trailer to decide how they would commit the murder. Subsequently, they drove the vehicle down another isolated dirt road. One boy was removed from the trunk and forced to make the second endorsement on his travelers checks. With both victims again secure in the trunk and appellant keeping watch, Cox placed a piece of hose in the vehicle’s exhaust pipe and stuffed a sponge around it to ensure against leakage. He forced the opposite end into the trunk. One boy apparently guessed what was happening and attempted to push the hose away. At that, Cox retrieved a knife from the ear’s interior and poked it into the trunk until the hose was freed. The trunk was then sealed with air conditioning tape and the engine started. Two hours later, the bodies were extricated and dumped into nearby bushes where they remained undiscovered for four months.

After the confession, indictments were returned and new counsel appointed for appellant. Thereafter, both appellant and Cox entered into a stipulation with the state which provided that the only issue in dispute was whether the state could prove corpus delicti sufficiently for the admission of defendants’ confessions into evidence. The stipulation provided that if the trial judge found in a pretrial hearing that the corpus delicti could be established, appellant and Cox would enter pleas of nolo contendere to two counts of first-degree murder, conditional upon the trial court imposing concurrent life sentences on each count. The state also agreed to nol-pros all other counts in the indictment. Before the pretrial hearing, appellant withdrew from the stipulation and proceeded to trial. Cox proceeded under the agreement. The trial court found that corpus delicti could be established and, after receiving Cox’s nolo plea, sentenced Cox to life imprisonment in accordance with the stipulation’s terms.

At appellant’s trial, two dentists qualified as experts positively identified the skeletons as their respective former patients, James Boucher and Daryl Barber. The state also presented an expert in forensic anthropology and medical archaeology who testified concerning the reconstruction of the skeletons and of the site where the remains were found. He related that one skeleton had a chip out of the skull frontal bone, a fractured jaw, and a rib broken into two pieces and opined that the injuries occurred at or about the time of death. He also testified that the bodies appeared to have completely decomposed while fully clothed, one lying almost on top of the other, and that they lacked identification, wallets, shoes, and belts. Another expert witness, the medical examiner, testified that in his opinion the victims died from nonsuicidal, nonaccidental, and nonnatural causes, and that the deaths resulted from the criminal act of another. During the course of the trial and outside the presence of the jury, the trial judge held an eviden-tiary hearing on the admissibility of appellant’s confession and expressly found it had been knowingly and voluntarily given. Appellant was convicted as charged, the jury returned a recommendation of death, and the trial court imposed the death sentence.

Trial Phase

Bassett contends that his conviction should be set aside because (1) his statements were taken in violation of his right to counsel; (2) the state did not establish corpus delicti sufficiently to allow the admission into evidence of appellant’s confession; (3) corpus delicti was not established beyond a reasonable doubt so to permit appellant’s conviction; and (4) the prosecutor made prejudicial remarks in his closing arguments. We reject each of these contentions.

Appellant first contends that the state violated his constitutionally guaranteed right to counsel. Under the facts of the instant case, the investigating officers approached appellant after the trial court had discharged appointed defense counsel and read appellant his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant immediately asked for his attorney. Appellant charges that the mandates of Miranda required questioning to cease at that point and that his ensuing confession was therefore illegally obtained.

We have considered appellant’s contention in light of Miranda and in light of the United States Supreme Court decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Appellant is correct that once a defendant asks for counsel, questioning must stop under Miranda until counsel is present. “Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, ‘the interrogation must cease until an attorney is present.’ 384 U.S., at 474, 86 S.Ct. at 1627.” 451 U.S. at 485, 101 S.Ct. at 1885. Miranda also provided, however, that a defendant may waive effectuation of his rights, if he does so voluntarily, knowingly, and intelligently. In Edwards, the Supreme Court held that an accused “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” 451 U.S. at 484-85, 101 S.Ct. at 1884-85 (emphasis ours).

In the present case, after appointed counsel had withdrawn, police officers approached appellant and advised him of his rights. When appellant asked for his attorney, the officers informed appellant that his attorney had withdrawn, told him that they would get another for him, and stood up to leave. Appellant then responded “Well, what do you want anyway?” The officers replied that the victims’ bodies had been discovered and that codefendant Cox had made a statement implicating him. The officers thereafter gave appellant numerous Miranda warnings prior to and during his confession and obtained two signed waiver of rights forms.

The question we must answer is whether the statement “Well, what do you want anyway?” is a sufficient “initiation” to meet the requirements of Edwards. We hold that it is. The facts are clear that after appellant invoked his right to counsel, the officers were on their feet and moving toward the door. It was appellant at this point who initiated the next exchange which led to the confession.

We have fully considered the appropriateness of the officers’ approaching appellant after appointed counsel’s withdrawal and have determined that the officers’ actions were in accordance with the existing law. The trial court held a full evidentiary hearing on the matter and concluded that appellant knowingly and intelligently waived his rights. The evidence sustains the trial court’s finding, and we approve it.

Appellant next contends that his confession was inadmissible because the state failed to establish corpus delicti. We recently reviewed the necessary elements to establish corpus delicti in 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), which reaffirmed our decisions in Frazier v. State, 107 So.2d 16 (Fla.1958), and Lee v. State, 96 Fla. 59, 117 So. 699 (1928). The necessary elements of proof are: (1) the fact of death, (2) the criminal agency of another person as the cause thereof, and (3) the identity of the victim.

In the present case the state introduced direct and circumstantial evidence apart from appellant’s confession, which established: the identity of the victims; the police found the two completely decomposed bodies in a remote area, one on top of the other; one skeleton had a fractured jaw and an injured rib, both of which occurred at or near the time of death; neither body had any identification, shoes, wallets, or belts; and, each victim had a stable state of mind before death. Additionally, the medical examiner rendered an expert opinion that within a reasonable medical certainty, the victims died as the result of another’s criminal act. To admit a confession, Frazier v. State requires that there be independent proof of the corpus delicti, “but it is enough if the evidence tends to show that the crime was committed.” 107 So.2d at 26. Proof beyond a reasonable doubt is not mandatory. Accord, Stone v. State. We reject appellant’s argument and conclude that the independent evidence was more than adequate under any standard to establish the three elements of corpus de-licti under the required quantum of proof for the introduction of a confession.

Appellant’s third point is closely akin to his second. Here appellant argues that, for purposes of his conviction, the state introduced insufficient evidence to prove corpus delicti beyond a reasonable doubt, and, accordingly, the trial court should have granted a directed verdict. Specifically, appellant charges that the only evidence introduced to prove death by the criminal agency of another was his confession; and that, standing alone, a confession is not sufficient to prove criminal agency. This argument fails for the similar reason that appellant’s second contention did not succeed: there was substantial other evidence available from which a jury could conclude that each element of the corpus delicti was present.

Appellant’s final point concerns the prosecutor’s closing remarks in the trial’s guilt phase. The record discloses that defense counsel made no objection to these remarks at trial. The remarks do not constitute fundamental error, and we will not consider them for the first time on appeal. See Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Castor v. State, 365 So.2d 701 (Fla.1978); Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976).

Sentencing Phase

In imposing the death sentence, the trial court found four statutory aggravating circumstances: (1) that appellant created a great risk of death to many persons; (2) appellant committed the murders while engaged in robbery and kidnapping; (3) appellant committed the murders to avoid lawful arrest; and (4) the murders were especially heinous, atrocious, and cruel. The trial court found appellant’s age of eighteen at the time of the offense to be somewhat of a mitigating factor.

Appellant challenges his death sentence on the basis that he was deprived of a fair sentencing hearing due to several comments made by the prosecution during closing argument at the sentencing hearing. Because he did not object to any of these prosecutorial comments during trial, appellant is precluded from raising them on appeal. Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981). Even if appellant had properly preserved this point for appeal, we would not find reversible error. The comments read in the entire context of the closing argument do not constitute prejudicial error.

Appellant also argues that the death sentence is not supported by sufficient evidence. He concedes that three of the four aggravating circumstances were proven beyond a reasonable doubt, but asserts that the court erroneously found that appellant created a great risk of death to many persons. He also contends that the court erred in not finding as a mitigating factor that he had no significant history of prior criminal activity.

The state concedes and we find that the trial court erroneously found that appellant created a great risk of death to many persons. The remaining three aggravating circumstances were proven beyond a reasonable doubt. We further hold that the court did not err in finding that defendant has a significant history of prior criminal activity. The record amply supports this finding.

Although one improper aggravating factor went into the weighing process, and the trial court found appellant’s age as somewhat of a mitigating factor, here, as in Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981), “we can know” that the result of the weighing process would not have been different had the one impermissible factor not been considered. Here, the trial court has told us in its order that appellant’s age, in its view, had only minor significance. As in Brown and 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), there are ample other statutory aggravating circumstances to convince us that the weighing process has not been compromised. In Brown, we stated, “Given the imprecision of the criteria set forth in our capital punishment statute we must test for reasoned judgment in the sentencing process rather than a mechanical tabulation to arrive at a net sum. Hargrave v. State, supra; State v. Dixon, 283 So.2d 1 (Fla.1973).” 381 So.2d at 696 (footnote omitted). See also Vaught v. State, 410 So.2d 147 (Fla.1982).

Although appellant has not raised as a point on appeal the fact that his accomplice entered a nolo plea and received a life sentence, we have considered this factor in the context of the present case. We do not find, however, that this constitutes a basis for reversal of his death sentence.

What happens to a codefendant is relevant and may be considered by a judge and jury in determining the appropriate sentence. 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); Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). In the present case, the sentence of the codefendant was considered. The judge and jury knew exactly what sentence the accomplice had received and why he had received this sentence. Even with this information, the jury recommended and the trial court imposed the death sentence. They reached this result because the death sentence in this case is clearly appropriate regardless of what happened to the eodefendant. Because the state accepts a nolo plea from the equally guilty accomplice does not mean that as a matter of law, the appellant could not receive the death sentence. If this were true, then the appellant had nothing to lose by going to trial. He could require the state to prove his guilt, and he would be assured that if convicted he could not be sentenced to death.

In Jacobs v. State, 396 So.2d 1113 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981), the defendant contended that the death penalty is unconstitutionally imposed when a codefendant on similar facts is not sentenced to death. In that case, there were two “trigger men,” one who plead guilty to second-degree murder and was sentenced to life imprisonment, and another (Jacobs) who was convicted of first-degree murder in a jury trial and was sentenced to death. In rejecting Jacobs’ contention, we held:

Essentially, appellant’s argument is that in case of felony murder involving two “trigger men” it is constitutionally impermissible to allow one “trigger man” to plead guilty and be sentenced to life imprisonment, and allow the second “trigger man” to exercise his right to a jury trial and take his chances that a conviction and death sentence will result. We do not accept appellant’s argument. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859, 889, n. 50 (1976).

396 So.2d at 1117.

Having reviewed the entire record, we find that the trial court properly imposed the sentence of death.

Accordingly, we affirm the convictions and sentence of death.

It is so ordered.

ADKINS, BOYD and EHRLICH, JJ., concur.

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

OVERTON, Justice,

concurring in part and dissenting in part.

I concur with the conviction but dissent from the sentence because, under the circumstances of this case, the imposition of the death penalty is contrary to Florida law and unconstitutional. The majority opinion has totally ignored appellant’s assertion that the state improperly presented to the jury, as an aggravating circumstance to justify the imposition of the death penalty, the fact of appellant’s exercise of his constitutional right to a jury trial.

Without question, the record in this case supports the conclusion that there were three aggravating circumstances and one mitigating circumstance. It is my view that, absent the state’s introduction of an improper non-statutory aggravating circumstance, the death sentence would have been appropriate.

The appellant and his accomplice appear to have participated equally in the murders, the only distinguishing factor being that Cox entered a nolo plea conditioned upon his being able to receive a life sentence while the appellant went to a jury trial, in fact, the record not only supports this conclusion but could well support a conclusion that Cox was in fact the dominant figure in committing these heinous murders. The state apparently recognized this because it did not attempt to argue that the appellant deserved death because he was the more dominant person in the commission of this offense. Rather, the state asserted that the appellant should receive the death penalty because he exercised his right to a jury trial. Without question, the state placed the appellant’s exercise of his right to a jury trial before the jury as a critical aggravating factor. The record clearly supports this conclusion. During the sentencing phase of the appellant’s trial, the defense counsel called the prosecutor as a witness to establish the codefendant’s plea bargain for a life sentence. After testifying on direct examination, the prosecutor cross-examined himself and explained to the jury why the appellant should receive the death penalty even though his code-fendant received only a life sentence:

I felt — early in the prosecution I felt that it was a death penalty ease, but I was going to give them the benefit of the doubt at that point if they wanted to admit their guilt, plead guilty — plead guilty — it would be some type of indication of a rehabilitation on their part.
I wanted to spare the family the burden of coming here to this courtroom and going through the ordeal of sitting through a murder trial in which their sons’ bones would be exposed; they would have to hear the gruesome testimony, relive their entire life until this point.
And I wanted to try to put it behind the family, wanted to try to save the State the expense.
But the [appellant] said he wanted to challenge the Court; he wanted to challenge the evidence.
So he has that.
He knew that when he withdrew that he would face this Jury, face the parents, and put them through the ordeal the entire time.
Their bodies could not be released. Their bodies would be held pending all this.
He chose that option.

It is clear that this evidence was presented as a non-statutory aggravating factor in the sentencing phase of the trial. This Court has emphatically held that “[u]nder the provisions of Section 921.141, Florida Statutes, aggravating circumstances enumerated in the statute must be found to exist before a death sentence may be imposed. The specified statutory circumstances are exclusive; no others may he used for that purpose.” Purdy v. State, 343 So.2d 4, 6 (Fla.), cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977) (emphasis added). See also McCampbell v. State, 421 So.2d 1072 (Fla.1982); Miller v. State, 373 So.2d 882 (Fla.1979).

I recognize that the United States Supreme Court has said in Barclay v. Florida, — U.S. -, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), that the federal constitution does not prohibit consideration at the sentencing phase of information not directly related to statutory aggravating factors and that our rule that statutory aggravating factors must be exclusive affords greater protection than the federal constitution requires. That holding by the United States Supreme Court is qualified by the phrase “as long as that information is relevant to the character of the defendant or the circumstances of the crime.” Id. at 3433 (Stevens, J., concurring). The majority has totally ignored the fact that the defendant’s exercise of his right to a jury trial has nothing to do with the character of the defendant or the circumstances of the crime. There is no way the majority can justify the use of this factor as an aggravating circumstance. The majority attempts to rely on Jacobs v. State, 396 So.2d 1113 (Fla.), cert, denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981), which is clearly inapplicable to the circumstances in this case. In Jacobs, no attempt was made by the state to assert that the jury should consider what the defendant required the families of the victims to experience by exercising his right to a jury trial. In addition, Jacobs failed to present any evidence to the jury concerning the sentences imposed on his accomplices. Consequently, the jury did not know what sentence was imposed on the accomplice and no issue was presented as to who was the dominant individual in that crime. It was recognized in Jacobs that evidence of the sentence imposed on a codefendant should be admitted if properly presented at the sentencing phase. We went on to state that this holding did not mean that “the state or the trial judge must provide the jury with such information if the defendant fails to do so; generally, it is improper for the state to disclose that another defendant has been convicted.” 396 So.2d at 1117. That was the heart of the holding in Jacobs on that issue. This Court expressly rejected Jacobs’ argument that he was prejudiced by his attorney’s being precluded from informing the jury at closing argument of sentences imposed on his accomplices when evidence of the sentences had not been presented to the jury. That case decided a different issue and clearly does not control the issue presented in the instant case.

I conclude that in the instant case there was an improper, prejudicial use of a non-statutory aggravating circumstance contrary to Florida law. Purdy; McCamp-bell; Miller. Further, I find a clear violation under the sixth and fourteenth amendments to the United States Constitution in allowing the jury to consider, as a critical aggravating factor in the sentencing phase of this trial, the appellant’s exercise of his constitutional due process right to a jury trial.

McDONALD, J., concurs.


author: BOYD, Justice.

text:
    Israel Martin PADRON, Petitioner, v. STATE of Florida, Respondent.
    No. 63305.
    Supreme Court of Florida.
    April 26, 1984.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., Miami, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal in State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983). We granted review on the jurisdictional ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const.

A police officer stopped petitioner Israel Padrón after noticing that the vehicle inspection certificate on the car Padrón was driving had expired. Upon being stopped, Padrón got out of the car and stood beside it. The officer soon learned that Padrón did not speak English, but only Spanish. The officer had only a limited knowledge of Spanish, so he asked Padrón for his “licen-sia” and his "registracion.” Padrón could produce no such documents, so the officer arrested him. He handcuffed Padrón and placed him securely in the rear seat of his police car.

Then the officer communicated with his headquarters, seeking the assistance of a Spanish-speaking officer. He was told that there was no Spanish-speaking officer available to render assistance at that time. Unable to consult Padrón about his preferences regarding the removal of the car, which was standing in a traffic lane, from the roadway, the officer decided to impound the vehicle. He called for a tow truck and began to examine the interior of the car, making an inventory of the items found. Under one of the seats the officer found a cloth or leather bag. When the officer grasped the bag to remove it from the car, he felt something inside it which he believed was a firearm. Opening the bag, the officer found a disassembled sub-ma-chinegun, along with a magazine, silencer, and ammunition, and five plastic bags of marijuana.

Padrón was subsequently charged by information with numerous offenses, several of which were based on his possession of the machinegun and marijuana. He filed a motion to exclude these physical items from evidence on the ground that they were obtained by means of an illegal search. The trial judge granted the motion, finding that the arresting officer had failed to follow legal requirements governing the impoundment and inventory search of vehicles as set forth in Miller v. State, 403 So.2d 1307 (FIa.1981). The trial judge also expressed the view that he did not believe the search could be justified as a search incident to arrest. The state appealed the suppression of the physical evidence.

On appeal, the district court reversed, holding that the warrantless search of the car petitioner was operating was a reasonable search incident to arrest. The district court reasoned that “the validity of the search as incident to the arrest is unaffected by the fact that the police officers classified their actions as an inventory search.” 425 So.2d at 645 (quoting State v. Valdes, 423 So.2d 944, 944 (Fla. 3d DCA 1982)). This reasoning comports with the holding of the United States Supreme Court “that the fact that the officer does not have the state of mind which is hypoth-ecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken so long as the circumstances, viewed objectively, justify that action.” Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). We find no error in the district court’s determination that, viewed objectively, the circumstances presented here justified the search of the car as a search incident to arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. Califonia, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

What we have said thus far is sufficient to approve the district court’s reversal of the trial judge’s suppression order. However, we go further only to suggest that it was unnecessary for the district court to find an alternative ground to justify the search, a ground not heavily relied upon by the state before the trial court and not subjectively relied upon by the officer who searched the car. Such alternative ground was unnecessary, we believe, because the trial judge erred when he ruled that the impoundment and inventory search were improper under Miller v. State. The trial judge could have and should have been reversed on that ground alone. The opinion in Miller v. State recognized that there are “situations where impoundment is reasonable and necessary, and consultation would be impossible or inappropriate.” 403 So.2d 1314. Under Miller, when communication between officer and arrestee is impossible or substantially impeded by the circumstances, and removal of the vehicle from the roadway is necessary in the interest of public safety, impoundment may be ordered without consultation of and advice to the arrestee. When impoundment is necessary and proper, it follows that an inventory of the contents may be made. Here the officer was unable to communicate with the arrestee because the arrestee did not speak English. The officer tried to get the assistance of a Spanish-speaking officer but was unable to do so. The arresting officer had no idea when a Spanish-speaking officer might be available. Under these circumstances, im-poundment and inventory search of the car in connection with the arrest was proper under Miller v. State.

The decision of the district court of appeal, reversing the trial court’s order suppressing tangible evidence, is approved. We remand the case for further proceedings.

It ⅛ so ordered.

ALDERMAN, C.J., and ADKINS, OV-ERTON, McDonald, EHRLICH and SHAW, JJ., concur.

      .The information in this case accused Padrón of (1) carrying a concealed firearm silencer on March 8, 1981; (2) carrying a concealed machi-negun on March 8, 1981; (3) discharging a machinegun into an occupied dwelling on March 6, 1981; (4) display of a firearm while committing the felony of shooting into an occupied dwelling on March 6, 1981; (5) display of a firearm while committing the offense of discharging a machinegun on March 6, 1981; (6) manufacture or possession with intent to manufacture, sell, or deliver cannabis in an amount of more than twenty grams on March 8, 1981; (7) unlawful ownership or possession of a ma-chinegun on March 8, 1981; (8) discharging a machinegun upon, across, or along a road, street, or highway or place where people are accustomed to assemble, with intent to do bodily harm or to damage property on March 6, 1981; and (9) possession of a firearm with an altered serial number on March 8, 1981.

      . The trial court also granted petitioner’s motion to suppress statements he made in response to police interrogation.

      . The state also appealed the trial judge’s order suppressing petitioner’s statements.

      . The district court affirmed the trial court’s order suppressing petitioner’s statements. 425 So.2d at 645.

      . The other portion of the district court’s decision, affirming the trial court’s order suppressing petitioner’s statements, has not been challenged in this review proceeding.


author: McDonald, justice. ADKINS, Justice,

text:
    STATE of Florida, Petitioner, v. Robert Sawyer PAGE, Respondent.
    No. 63360.
    Supreme Court of Florida.
    April 26, 1984.

      Jim Smith, Atty. Gen., and Robert Krauss, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Tenth Judicial Circuit, Clearwater, for respondent.
   McDonald, justice.

This cause is before the Court on petition for review of a district court of appeal decision, Page v. State, 436 So.2d 153 (Fla. 2d DCA 1983). The district court certified the following question as one of great public importance:

WHETHER THE STATE IS PREVENTED BY SECTION 90.610(1), FLORIDA STATUTES (1981), FROM IMPEACHING A DEFENDANT BY USE OF A PRIOR PETIT THEFT CONVICTION WITHOUT SHOWING THAT SUCH CRIME INVOLVES SOME ELEMENT OF DECEIT, UNTRUTHFULNESS, OR FALSIFICATION BEARING UPON THE DEFENDANT’S CAPACITY TO TESTIFY TRUTHFULLY.

Id. at 153. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer the certified question in the negative and thereby quash the district court’s opinion.

During the jury trial of Robert Sawyer Page, charged with the sale of cocaine, defense counsel made a motion in limine to exclude evidence of two prior petit theft convictions offered by the state to impeach Page. In denying the motion the trial court ruled that all petit thefts are crimes of “dishonesty” and, therefore, admissible for purposes of impeachment pursuant to subsection 90.610(1), Florida Statutes (1981). On appeal the second district reversed Page’s conviction on the authority of Hall v. Oakley, 409 So.2d 93 (Fla. 1st DCA), review denied, 419 So.2d 1200 (Fla. 1982). In Hall the first district held that a conviction for petit theft may not be used for impeachment purposes unless the prosecution demonstrates that the crime involved some element of deceit, untruthfulness, or falsification bearing upon the witness’ capacity to testify truthfully.

Subsection 90.610(1), Florida Statutes (1981), reads:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

The First District Court of Appeal in Hall reached the conclusion that the commission of a petit theft is not, per se, a crime involving “dishonesty or false statement” by applying principles of statutory construction.

Prior to the adoption of the new evidence code in Florida, a witness could be impeached with evidence of a conviction of any crime, excluding certain minor offenses such as traffic infractions. See Hendrick v. Strazzulla, 135 So.2d 1 (Fla. 1961). With the advent of the new code subsection 90.610(1) was drafted so as to limit crimes admissible for impeachment purposes to those involving “dishonesty or false statement.” Subsection 90.610(1), Florida Statutes (1977), as originally drafted read:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime involving dishonesty or a false statement, with the following exceptions:

The drafters intended to include theft-related offenses within the definition of crimes involving “dishonest or false statement”. See C. Ehrhardt, Florida Evidence § 610.1 at 186 (1977). In 1978, however, the Florida Legislature amended subsection 90.-610(1) to substantially conform to the language of Federal Rule of Evidence 609. The First District Court of Appeal interpreted this amendment as evidencing the intention by the legislature to negate the intent of the draftees and accord subsection 90.610(1) a construction similar to that given its model in the federal courts. Federal rule 609 requires the prosecution to demonstrate that the misdemeanor petit theft involved some element of deceitfulness, untruthfulness, or falsification before the conviction can be admissible for impeachment purposes. In construing subsection 90.610(1), as amended in 1978, the first district in Hall sought to discover what the legislature intended to constitute a crime of “dishonesty or false statement.”

Article V, section 2(a) of the Florida Constitution grants to this Court the power to “adopt rules for the practice and procedure in all courts.” Subsection 90.610(1), dealing with the use of prior convictions for the purpose of impeachment, clearly falls within the realm of “procedure.” To avoid a constitutional attack on the evidence code and recognizing that matters of court procedure are the sole responsibility of this Court, we adopted the legislatively enacted evidence code as a court rule in 1979. In re Florida Evidence Code, 372 So.2d 1369 (Fla.1979). Thus, pursuant to article V of the constitution it is our sole responsibility to determine which crimes involve “dishonesty or false statement” for the purpose of impeachment.

It is our view that the commission of petit theft, or any other offense falling within the scope of chapter 812, Florida Statutes (1981), necessarily involves “dishonesty” so as to bring any conviction for such a crime within the scope of subsection 90.610(1). We realize that our interpretation of the statute differs from the federal construction of identical language contained in federal rule 609. We are also aware that the position we take has been labelled the “minority view.” See C. Ehrhardt Florida Evidence, § 610.1 at 88 (Supp.1982). But we are convinced that our interpretation is the more logical one, and we are not alone. The Illinois Supreme Court, in construing federal rule 609, which it had expressly adopted, stated:

There is little doubt but that theft reflects adversely on one’s honesty and therefore relates to one’s ability to be truthful under oath....
... [A]ny misdemeanor, which has as its basis lying, cheating, deceiving, or stealing, bears a reasonable relation to testimonial deceit and should be admissible for impeachment purposes.

People v. Spates, 77 Ill.2d 193, 204, 32 Ill.Dec. 333, 395 N.E.2d 563, 569 (1979).

As the state has pointed out, subsection 90.610(1) refers to crimes involving “dishonesty or false statement.” To restrict the rule’s application only to those offenses which evidence an element of affirmative misstatement or misrepresentation of fact would be to ignore the plain meaning of the word “dishonesty.” In Spates the Supreme Court of Illinois pointed out that Webster’s Third New International Dictionary 650 (1971) defines “dishonesty” as a “breach of honesty or trust, as lying, deceiving, cheating, stealing, or defrauding. ..” Id. at 203, 32 Ill.Dec. at 338, 395 N.E.2d at 568 (emphasis supplied).

An added reason for our ruling is our concern with the fact that acceptance of the narrow interpretation of subsection 90.-610(1) advanced by the first district in Hall would result in the cumbersome procedure of conducting a “trial within a trial” to determine whether some form of affirmative misstatement or misrepresentation of fact was involved in the commission of the crime. Page argues that the interests of justice and the defendant’s right to a fair trial outweigh any administrative inconvenience caused by a preliminary evidentiary hearing into the surrounding circumstances of a prior petit theft conviction. We do not believe, however, that our position sacrifices any principles of justice since we are convinced that the commission of a petit theft is, per se, a crime involving “dishonesty” and, therefore, bears directly on the witness’ capacity to testify truthfully at trial. Also, section 90.403 of the evidence code enables the trial court to exclude evidence of prior convictions, even though relevant, if the probative value is substantially outweighed by the danger of unfair prejudice.

We therefore disapprove Hall on this issue and quash the district court’s opinion in this cause. We remand the instant action with instructions to reinstate the judgment and conviction of the trial court.

It is so ordered.

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

ADKINS, J., dissents with an opinion, in which SHAW, J., concurs.

ADKINS, Justice,

dissenting.

I dissent. Today’s majority opinion takes the law of Florida two steps backward in the development of a fair and progressive evidence code. I can find no logic whatever in refusing to follow the federal interpretation of words which substantially adopt a federal rule of evidence. See e.g., United States v. Fearwell, 595 F.2d 771 (DC App.1978) (limiting such impeachment to those offenses which bear directly on the ability to testify truthfully); United States v. Papia, 560 F.2d 827 (7th Cir.1977) (the burden of presenting specific facts to show the crime involved dishonesty or false statement is on the government). The majority bases its holding on what it perceives to be the true intention of the Florida legislature, the definition of dishonesty, and the power of this Court to determine which crimes involve “dishonesty or false statement” for the purpose of impeachment. I believe that the majority’s perception is faulty in each of these.

There is some evidence in the legislative history of section 90.610 that the intention may have been that theft-related misdemeanors are not necessarily included for the purpose of impeachment. The sponsors’ notes on the original version of that section, as well as the staff analysis of the bill, state that it is only logical to restrict the use of crimes for impeachment to those involving dishonesty or false statement because, when a witness’ credibility is under attack, it is the character traits of truth and veracity that are at issue. House Judiciary Committee, Senate Bill 754 with sponsors’ notes, chapter 76-237, Laws of Florida: Florida State Archives RG 920, series 18, Box 494, file SB 754; Senate Judiciary-Criminal Committee, Staff Analysis for Senate Bill 754, chapter 76-237, Laws of Florida: Florida State Archives RG 920, series 18, Box 494, file SB 754. Therefore, it follows that only those crimes relating to the defendant’s truth and veracity would be relevant.

If the drafters did intend that the original form of the bill be broadly applied so as to include crimes such as theft, the reason for a broad application disappeared when the section was revised. In its original form, no matter how serious the crime, only those involving dishonesty or false statements could be used. It is logical that the drafters might want to include theft-related offenses so that a serious felony such as armed robbery would be admissible. In its revised form the section allows the use of all crimes punishable by imprisonment in excess of one year or by death. Serious crimes are now encompassed by the statute and specifically permitted whether or not they involve dishonesty or false statement. It is only misdemeanor crimes which must fulfill that criteria. Because these are relatively minor offenses, the additional safeguard of requiring them to reflect upon the defendant’s truth or veracity is necessary to avoid undue prejudice to the defendant. If we expand the meaning to include all theft-related offenses, we will have virtually the same law that we had before the evidence code — that all crimes are admissible for the purpose of impeaching the defendant. Hendrick v. Strazzulla.

The definition of the word dishonest has become an issue because the majority follows the Illinois Supreme Court in Spates and states that the “plain meaning” of dishonesty includes stealing. I have yet to locate a dictionary which includes stealing in the definition of dishonesty. The quote from Webster’s Third New International Dictionary, which the majority adopts from Spates, actually comes from the synonym section. It states only that dishonest may apply to stealing which is a far cry from saying that dishonest always applies to stealing. The dictionary states that “dishonest” is:

[Characterized by lack of truth, honesty, probity, or trustworthiness or by an inclination to mislead, lie, cheat, or defraud ...
syn [deceitful], [lying], [mendacious], [untruthful]: [dishonest] may apply to any breach of honesty or trust, as lying, deceiving, cheating, stealing, or defrauding ...

Id. at 650 (emphasis supplied). I fail to see how stealing is within the “plain meaning” of dishonest. If it were, it would be included in the main body of the definition. The dictionary describes the synonymy paragraph as follows:

18.1 This dictionary contains over a thousand paragraphs in which synonymous words are briefly discriminated and given verbal illustrations. Each paragraph follows the entry of one of the words of a group under consideration and is signaled by the boldface abbreviation syn indented. The paragraph is a synonymy....

Id. at 18a (emphasis supplied).

While petit theft is always criminal, it may or may not also reflect on the defendant’s truth and veracity. We should require the prosecution to demonstrate that petit theft relates to these traits before evidence of such a crime is admitted to impeach the defendant. This showing would be no more “cumbersome” than is any other type of evidentiary hearing which we now require in order to safeguard a defendant’s rights.

It is this Court’s sole responsibility to adopt rules for the practice and procedure in all courts pursuant to article V of the Florida Constitution. However, I sincerely believe that the majority has gone far beyond the mandate of the constitution in today’s opinion.

I would affirm the Second District Court’s opinion and approve Hall on this point.

SHAW, J., concurs.

      . The Fourth District Court of Appeal in Rivers v. State, 423 So.2d 444 (Fla. 4th DCA 1982), agreed with Hall’s interpretation of § 90.610(1).

      . Although we deem the legislature’s intent irrelevant, in the absence of any express manifestation we are not convinced that the legislature intended to negate the intent of the original drafters.

      . Ch. 812 deals with "Theft, Robbery, and Related Crimes”.


author: McDonald, justice. ALDERMAN, Chief Justice,

text:
    STATE of Florida, Petitioner, v. Felipe PEREZ, Respondent.
    No. 63787.
    Supreme Court of Florida.
    April 26, 1984.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for respondent.
   McDonald, justice.

We have for review Perez v. State, 431 So.2d 274 (Fla. 5th DCA 1983), which the district court certified as being in direct conflict with Gillman v. State, 346 So.2d 586 (Fla. 1st DCA 1977). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution, approve the decision under review, and disapprove Gill-man.

The state charged Perez by information with aggravated assault with a deadly weapon, a firearm, in violation of section 784.021, Florida Statutes (1981). Perez also faced a minimum mandatory sentence of three years’ imprisonment under subsection 775.087(2), Florida Statutes (1981) if convicted as charged. A jury found Perez guilty of attempted aggravated assault, resulting in a first-degree misdemeanor conviction instead of the third-degree felony charged. See § 777.04(d), Fla.Stat. (1981). Relying on Gillman, the trial court sentenced Perez to the three-year mandatory minimum term of imprisonment required by subsection 775.087(2), notwithstanding the one-year sentence cap on a first-degree misdemeanor conviction found in subsection 775.082(4)(a), Florida Statutes (1981). On appeal the fifth district directed the trial court to resentenee Perez without applying the mandatory minimum sentence provisions of subsection 775.087(2). The fifth district reasoned that the legislature had intended the mandatory minimum sentence provisions to apply only to felonies, not misdemeanors. We agree.

Subsection 775.087(2) can logically be interpreted to sustain the trial judge and the first district in Gillman, but we prefer the analysis used by the fifth district in this case. As the decision under review points out, the legislative enactments creating and amending subsection 775.087(2) all refer to minimum sentences for felony convictions. The statute was enacted to assure that anyone convicted of a felony involving the use of a firearm or destructive device would serve a minimum of three years’ incarceration. It was a limitation on the trial judges’ discretion when such weapons were used in committing a felony; it prohibited the parole commission from granting parole prior to the running of three years for those convicted of such crimes. We do not believe that it was the legislative intent and purpose of subsection 775.087(2) to impose the mandatory minimum sentence on a defendant convicted of the misdemeanor offense of attempted aggravated assault.

Accordingly, we choose to follow and approve the decision under review and disapprove Gillman insofar as it conflicts with our decision in this case.

It is so ordered.

ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.

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

ALDERMAN, Chief Justice,

dissenting.

I would approve the decision of the First District in Gillman v. State, 346 So.2d 586 (Fla. 1st DCA 1977).


author: PER CURIAM.

text:
    James ADAMS, Appellant, v. STATE of Florida, Appellee. James ADAMS, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    Nos. 65225, 65226.
    Supreme Court of Florida.
    May 2, 1984.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, Richard H. Burr, III, West Palm Beach, of Counsel and Michael A. Mello, Asst. Public Defender of the Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

James Adams appeals the trial court’s denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, petitions this Court for writ of habeas corpus, and seeks a stay of execution. We deny all relief.

There have been five appellate proceedings concerning Adams’ conviction for first-degree murder and his sentence of death. In Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977), this Court, in Adams’ direct appeal, affirmed both the conviction and the imposition of the death penalty. In Adams v. State, 355 So.2d 1205 (Fla.), cert. denied, 439 U.S. 947, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978), this Court rejected Adams’ Gardner challenge to his sentence. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). In Adams v. State, 380 So.2d 421 (Fla.1980), this Court resolved a dispute concerning the appointment of counsel for Adams’ post-conviction relief motion. In Adams v. State, 380 So.2d 423 (Fla.1980), this Court affirmed the trial court’s denial of post-conviction relief. In addition, in Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984), the Eleventh Circuit Court of Appeals affirmed the denial of Adams’ petition for writ of habeas corpus by the United States District Court for the Southern District of Florida.

In his petition for rule 3.850 relief, Adams asserts that his death sentence should be vacated on two grounds: (1) the death sentence was imposed in substantial reliance upon an unconstitutional prior conviction in Tennessee and (2) the death penalty is imposed in Florida in an arbitrary and discriminatory manner on the basis of improper factors.

With regard to the first issue, Adams asserts that the trial court and this Court improperly used as an aggravating circumstance his 1962 conviction for rape in the state of Tennessee. That conviction has never been set aside or vacated. To accept Adams’ argument this Court would first have to declare the Tennessee conviction unconstitutional. Even assuming the improper use of the prior conviction as an aggravating circumstance, there are at least two other valid statutory aggravating circumstances established in this record and no mitigating circumstances. Consequently, the death sentence is still supported by this record. See Francois v. State, 407 So.2d 885 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (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); Elledge v. State, 346 So.2d 998 (Fla. 1977). More important, however, is the fact that this issue could have been raised in the first appeal to this Court and, consequently, it will not now support a collateral attack. Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977).

We also reject Adams’ second ground for relief that the Florida death penalty is imposed in an arbitrary and discriminatory manner. This same issue has been raised and disposed of by this Court in Sullivan v. State, 441 So.2d 609 (Fla. 1983). See also Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983).

In his petition for writ of habeas corpus, Adams requests that this Court revisit our decision in Aldridge v. Wainwright, 433 So.2d 988 (Fla.1983), where we upheld the constitutionality of the direction in our standard jury instructions that the trial judge instruct the jury on all lesser degrees of homicide in a capital case. We decline to revisit this issue, particularly in this cause where Adams, on his initial appeal, questioned only the wording of the second-degree murder definition in the instructions and did not otherwise object at trial to the giving of the lesser-degree instructions. We find the allegations in support of habeas corpus relief to be without merit.

Accordingly, the order of the trial court denying Adams’ motion for post-conviction relief is affirmed and the petition for habe-as corpus is denied, as is the motion for stay of execution. No motion for rehearing will be entertained.

It is so ordered.

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