author: TAYLOR, Judge. TAYLOR, Judge.

text:
    Jessie James BROOKS v. STATE.
    1 Div. 800.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
    Rehearing Denied Oct. 9, 1984.

      Thomas R. Boiler, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Jessie James Brooks was convicted by a jury in Mobile County for possession of a forged instrument in the second degree. He was sentenced under the Alabama Habitual Felony Offenders Act to life imprisonment, having accumulated four felony convictions.

On March 3, 1983, appellant walked into the Spring Hill Avenue branch of South-Trust Bank in Mobile and presented a savings withdrawal slip made out in the name of Charles A. Wendt. As bank policy required, the teller called to check the status of the account. When she found that there “was an alert out” .on Wendt’s account number (meaning that there was some problem with the account) she told appellant that she could not honor the withdrawal until authorized to do so by a superior. Appellant responded that he would take the slip to another branch, but the teller tore up the slip instead of returning it to him.

Later the same day, appellant drove up to the drive-in teller at SouthTrust’s Dauphin Street branch, also in Mobile. Again he presented a savings withdrawal drawn on Charles A. Wendt’s account. At the teller’s request, he also presented an In-galls Shipbuilding identification card bearing appellant’s picture. The ID had been altered to include Charles Wendt’s name and signature. The teller recognized the account as having an alert out, and informed her manager. While she was trying to contact the bookkeeping department, appellant told her that he would park and come inside the bank. Then he drove away, leaving the teller with the slip and ID.

Before this conviction, appellant had been sentenced to a year and a day for second degree burglary; three years probation for buying, receiving or concealing stolen property; and three years each in two cases of forgery.

I

Appellant contends that his sentence of life imprisonment for this crime under the Habitual Felony Offender Act is unconstitutional.

The issue of proportionality of prison sentences must be examined in light of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637, the 1983 U.S. Supreme Court case that, at least in part, overturned the language of Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Solem, of course, held that the Eighth Amendment requires a sentence to be “proportional” to the crime; the length of a prison sentence, therefore, is not absolutely precluded from review. So-lem, 103 S.Ct. at 3009-10.

The court in Solem recognized that successful challenges based upon proportionality would be rare. Id. at 3009. The pivotal distinction between Solem v. Helm and Rummel v. Estelle, as the Fifth Circuit noted in Moreno v. Estelle, 717 F.2d 171, 180 (5th Cir.1983), is that the appellant in Solem was not eligible for parole. In contrast, Rummel would have been eligible for parole in twelve years, and had no need to rely on “hope for ‘an ad hoc exercise of clemency.’ ” Solem, 103 S.Ct. at 3016.

The Fifth Circuit in Moreno concluded that the rule in Rummel is still applicable in fact situations not clearly distinguishable from it. Because the appellant in the instant case is eligible for parole and has been convicted of four prior offenses (one more than Rummel and two more than Moreno), and because his offenses include offenses such as burglary and grand larceny, his case is more nearly similar to Rummel and Moreno. The sentence is an enhanced punishment because of several crimes which, although not immediately recognized as “violent”, presented “potentialities for violence.” Cf. Solem at 3023 (Burger, C.J., dissenting).

We have consistently found that convictions for life or life without parole imposed under the Habitual Felony Offenders Act did not violate the Eighth Amendment. In Thomas v. State, 447 So.2d 203, 209 (Ala.Crim.App.1984), we said that Solem was “inapposite” where Thomas’s present and prior convictions were for robbery. The language in Thomas emphasizes the nature of the prior robbery convictions in upholding a sentence identical to appellant’s. Similarly, in Montgomery v. State, 446 So.2d 697 (Ala.Crim.App.1983), we affirmed a sentence of life without parole under the Act. In Montgomery, the conviction was for armed robbery; the prior convictions were not revealed in the opinion.

We have already recognized that the So-lem decision does not destroy the constitutionality of a life sentence for an offense similar to the one with which appellant is charged. In Williams v. State, 456 So.2d 852 (Ala.Crim.App.1984), we affirmed five terms of life imprisonment pursuant to the Habitual Felony Offenders Act. Four of Williams’s life sentences were for forgery; the fifth was for possession of a forged instrument. A consideration of the factors outlined in Solem leads us to the conclusion that Williams’s punishment complied with both the statute and the high court’s proportionality analysis. Indeed, because of the distinction with regard to parole, Solem “furnishes no authority” upon which to disturb this sentence.

II

Appellant next contends that a bank withdrawal slip is not a document named in § 13A-9-3, Code of Alabama 1975, and therefore will not support a conviction under § 13A-9-6 regarding forged instruments. Section 13A-9-3 in pertinent part reads:

“(1) a deed, will, codicil, contract, assignment, draft, note, or other commercial instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status.... ”

Section 13A-9-1, Code of Alabama 1975, defines a written instrument as follows:

“(a) any paper, document or other instrument containing written or printed matter or its equivalent, and
“(b) any token, stamp, seal, badge, trademark or other evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.”

A withdrawal slip is such a paper as is capable of being a forged instrument.

Ill

Appellant further contends that he was denied effective assistance of counsel. A review of the record convinces us that counsel appointed to this case performed sufficiently well, and that appellant was not denied effective assistance of counsel. Appellant points out various pages and lines in the transcript where there was not an objection to a leading question or to hearsay. We feel compelled to observe that effectiveness of counsel does not lend itself to measurement by picking through the transcript and counting the places where objections might be made. Effectiveness of counsel is not measured by whether counsel objected to every question and moved to strike every answer. Appellant concludes his argument by suggesting that, “given the facts of the case as exhibited in the transcript, there is some question as to whether the defendant should have been advised to try the case as opposed to negotiating ...” We agree that the state’s evidence was compelling. We find that counsel performed adequately at trial.

In light of the foregoing, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.

ON REHEARING

TAYLOR, Judge.

In his application for rehearing appellant states that the language employed by the indictment in this case is “withdrawal” rather than “withdrawal slip”. In our opinion this fact does not affect our former finding that a withdrawal slip can be the subject matter of a forgery; neither does the grand jury’s description of the document forged fail to apprise the appellant of the offense charged. Accordingly, the motion for rehearing is overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Charles TATE, alias v. STATE of Alabama.
    1 Div. 799.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.

      Karen A. Zokoff, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Charles Tate was indicted for assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial judge sentenced the appellant to life imprisonment in the penitentiary as a habitual offender.

On March 29, 1983, the victim in this case, Benjamin Seals, walked out of the Aquarius Club in Pritchard and observed the appellant’s brother, Leonard Tate, holding a gun to Charles Martin’s head. Seals told Tate to leave Martin alone because he didn’t have any drugs or money. The appellant, who was standing nearby, told Martin that he hoped his brother would shoot him. At some point, Tate lowered the gun and Seals told Martin he would walk him home after he made a phone call. As Seals walked to the phone booth, he was approached by the appellant who told him not to call the police. Seals told the appellant he was only calling his girlfriend. The appellant, who was pointing a gun at Seals, replied that he ought to shoot him anyway. At this point, Seals and Martin fled the scene and went to Martin’s brother’s house.

Seals and Martin’s brother then went to the King and Mary’s Club. As they approached the door, the appellant and his brother came out of the Club. Seals told Martin that those two were the ones who had bothered his brother. The appellant was reaching in his pants, so Seals jumped him and the four struggled for a while. Eventually, the fight broke up and Seals and Martin left.

On April 7, 1983, Seals again went to the Aquarius Club. Shortly after he arrived, he went into the bathroom. The appellant was in the bathroom at this time. When the appellant recognized Seals, he reached down his pants. The two began struggling and Seals ran out of the bathroom and dove behind a chair. Seals heard a shot and stood up. Two more shots were fired and Seals was hit in the chest by one of the shots. One of the customers in the bar testified that the appellant shot Seals as he was running out of the Club.

Leonard Tate testified the only time he had ever seen Seals was one night at the Aquarius Club when Seals offered to sell him some marijuana.

The appellant testified he had not been involved in a fight with Seals at the King and Mary’s Club. In fact, he stated he did not even know him. He was with his girlfriend at the Aquarius Club the night Seals was shot, but claims he was outside when he heard the gunshots.

I

The appellant is not being represented on appeal by the same counsel who represented him at trial. The appellant cites several instances in the record which he claims constituted ineffective assistance of counsel.

We have thoroughly reviewed the entire record, and particularly the parts about which the appellant complains, and have determined the appellant did receive adequate and proper representation at his trial.

The Alabama Supreme Court in Ex Parte Baldwin, 456 So.2d 129 (Ala.1984), stated that the burden of proof is on the accused to show that he has been denied effective assistance of counsel.

“First, petitioner must show that counsel’s performance was so deficient as to fall below an objective standard of reasonableness. Counsel’s conduct must be considered within the context of the facts of the particular case and as of the time of the alleged misconduct. Second, petitioner must show that counsel’s deficient performance prejudiced the defense and deprived petitioner of a fair trial. Prejudice is shown when, absent the errors, there is a reasonable probability that the jury would have had a reasonable doubt respecting guilt.”

Baldwin, supra. See also Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

During the trial, trial counsel stipulated that Seals had sustained “serious physical injury” as a result of the gunshot. Trial counsel, as a matter of trial strategy, decided to stipulate this fact rather than have the jury view Seal’s wounds. Certainly, this was an acceptable trial strategy and one which probably benefited this appellant. This action did not result in prejudice to the appellant.

The appellant took the stand in this case. On direct examination, trial counsel asked the appellant about previous convictions and the appellant admitted three prior felony convictions. The appellant now asserts this was detrimental to him because the State was not required to prove these convictions for purposes of using the Habitual Offender Act since the appellant admitted them at trial. The appellant denied that he took part in the shooting or that he even knew Seals. Obviously, trial counsel put the appellant on the stand in hopes that the jury would believe the appellant’s story and acquit him based on his version of the events. Trial counsel thought it better to ask the appellant about his prior convictions rather than have them come out on cross-examination by the State. Trial counsel took a risk by putting the appellant on the stand and having him admit those convictions. However, that risk was clearly justified in this cause. Trial counsel assumed the State knew of the appellant’s prior convictions and would probably use them for purposes of the Habitual Offender Act in any event. Trial counsel certainly believed it was better to put the appellant on the stand so that they would have some evidence which might create a reasonable doubt of his guilt. If the jury had acquitted the appellant, the Habitual Offender Act would not have come into play. Therefore, we do not believe trial counsel’s strategy in this regard was unreasonable.

Trial counsel did not make a motion to exclude the State’s evidence in this case. We do not find this constituted ineffective assistance of counsel. The evidence against the appellant was great and the trial judge would most likely have denied such motion. In fact, trial counsel stated that the reason he was not making a motion to exclude was because he knew “it would be denied.” The failure of trial counsel to file a motion to exclude does not, in itself, constitute inadequate representation and this appellant has failed to show us that he was prejudiced by this failure to act. Woodyard v. State, 428 So.2d 136 (Ala.Crim.App.1982), affirmed, 428 So.2d 138 (Ala.1983).

Most of the instances about which the appellant now complains were matters of trial strategy. Such matters are left to the sound discretion of trial counsel. We do not find trial counsel abused his discretion in choosing which strategies to pursue in this case, or that these prejudiced the appellant in any way. Mains v. State, 375 So.2d 1299 (Ala.Crim.App.1979), Woodyard, supra, Goodman v. State, 387 So.2d 862 (Ala.Crim.App.), writ denied, 387 So.2d 864 (Ala.1980).

Trial counsel in this case made numerous objections to the State’s evidence, thoroughly cross-examined the various State’s witnesses, adequately attempted to impeach those witnesses, and presented a good defense on the appellant’s behalf.

The appellant has failed to demonstrate to this court that he was denied reasonably effective assistance of counsel. Furthermore, he could not demonstrate that he was prejudiced by trial counsel’s performance at trial even had we found it to be inadequate. Therefore, there is no basis of error to reversal on this issue.

II

Before the trial began, the trial judge struck two jurors sua sponte. The appellant in brief admits that the trial judge did not abuse his discretion in this regard. Trial counsel brought the matter to the trial judge’s attention and he stated the two jurors were struck because one knew the appellant and the other knew the trial counsel and both stated their acquaintance with the appellant and trial counsel “would affect their verdict.”

Furthermore, there were 26 jurors on the venire before these two were struck. The trial judge stated that, when there are more than the required 24 jurors on the venire, it is the customary practice to strike any additional jurors so that they will be available for other trials. Certainly, we can find no error here on this basis.

III

The appellant contends the testimony of Chris Martin should have been excluded because it was irrelevant and immaterial. We find no merit to this contention.

Following Martin’s testimony, trial counsel asked the trial judge to exclude this testimony. The State alleged the testimony would be tied up with other evidence to be produced at a later point in trial.

From our reading of the record, the State did adequately tie in Martin’s testimony with the rest of the evidence. Martin’s testimony was material and relevant because it demonstrated how appellant and Seals became involved with each other, and along with other evidence, provided a motive as to why the appellant shot Seals. The testimony of Martin was properly admitted.

IV

The appellant claims it was error not to admit a statement made by Seals to a police officer. During the cross-examination of the officer, trial counsel attempted to introduce the statement into evidence. The trial judge, over the State’s objection, allowed the statement to be read to the jury.

We fail to see how the appellant was prejudiced because this statement was not admitted into evidence. The jury was allowed to hear the statement and trial counsel did not further press for its admission after it was read to the jury.

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Johnny JONES v. STATE.
    1 Div. 834.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    On Return to Remand Oct. 9, 1984.
    John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

This is an appeal from a revocation of probation.

After a revocation hearing at which the probationer was represented by counsel, probation was revoked. The evidence reveals that, while on probation from a conviction for Robbery III, the probationer stole some cigarettes from a Seven-Eleven Store.

During the revocation hearing, the trial judge stated that he was not going to revoke on the ground that the probationer failed to pay his supervision fees. However, in his written order of revocation, the trial judge found that the probationer “failed to abide by the terms and conditions of probation by failing to pay supervision fees” and “by committing a theft of assorted cigarettes from the Seven-Eleven Store located at 2311 St. Stephens Road on November 18, 1983.”

The written order merely states these findings and then states that probation is revoked. There is no specific statement of the evidence relied upon for revoking probation. From the order, it does appear that probation was revoked because of the failure to pay the supervision fees and the commission of the theft, although this conflicts with what the judge stated at the revocation hearing.

Under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), as interpreted in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), minimal due process requires that before probation can be revoked the probationer must be given “[a] written statement by the judge as to the evidence relied on and reasons for revoking probation.” The record shows that the judge’s order does not satisfy this requirement. Jenkins v. State, 368 So.2d 329 (Ala.Cr.App.1979).

Because the error is only in the judge’s order and not in any of the other proceedings or the revocation hearing itself, this cause is remanded with directions that the judge satisfy the deficiency of his written order of revocation, and that he clarify the apparent conflict between the present order and his statement that he would not revoke probation for the probationer’s failure to pay. In this regard, see Crutcher v. State, 439 So.2d 725 (Ala.Cr.App.1983).

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Presiding Judge.

In response to our directions remanding this cause so that the circuit court judge could clarify his order revoking probation, that judge issued a written order containing a specific statement of the evidence relied upon for revoking probation. He also stated that “the revocation of probation is not based upon the probationer’s failure to pay said fees, in that no evidence of ability to pay or of bad faith failure to pay was adduced, and that revocation in this case is based solely upon the probationer’s commission of theft as above stated.” The judge’s order is in full compliance with Armstrong, supra.

The judgment of the circuit court revoking probation is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


text:
    Robert Lee COPELAND v. STATE.
    3 Div. 893.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.
    Jack W. Wallace, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Robert Lee Copeland was separately indicted for rape in the first degree in violation of Alabama Code 1975, § 13A-6-61(a)(1), and burglary in the first degree in violation of § 13A-7-5(a)(l). The indictments were consolidated for trial and Copeland was convicted as charged. Sentence was twenty years’ imprisonment for the rape and ten years for the burglary, with the terms being concurrent.

On appeal, Copeland argues that the indictment was insufficient to inform him of the charge and that his demurrer should have been sustained.

The indictment tracked the language of the statute and stated, in pertinent part, that Copeland, “a male, did engage in sexual intercourse with V___ L. W_, a female, by forcible compulsion in violation of Section 13A-6-61 of the Code of Alabama.” It is argued that “forcible compulsion” is merely a legal conclusion which a person of common understanding would not comprehend.

Alabama Code 1975, § 15-8-25, provides how facts constituting the offense must be charged:

“An indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.”

“The words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which must be construed according to their legal meanings.” § 15-8-5. The terms “sexual intercourse” and “forcible compulsion” are defined by statute. § 13A-6-60(l) and (8).

“An indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense.” Ex parte Allred, 393 So.2d 1030, 1032 (Ala.1980). See also Barbee v. State, 417 So.2d 611 (Ala.Cr.App.1982). In determining the sufficiency of an indictment substantially following the language of the statute, “the determinative factor is the sufficiency, vel non, of the language of the particular statute, when pursued in the accusation, to apprise the accused with reasonable certainty of the nature of the accusation made against him, to the end that he may prepare his defense and be protected against a subsequent prosecution for the same offense.” Hochman v. State, 265 Ala. 1, 3, 91 So.2d 500 (1956). See also Haynes v. State, 293 Ala. 221, 224, 301 So.2d 208 (1974). “The indictment must state the facts constituting the offense in ordinary and concise language in such a manner as to enable a person of common understanding, ‘neither a Solomon nor a simpleton’, to know what is intended.” Chambers v. State, 364 So.2d 416, 419 (Ala.Cr.App.), cert, denied, Ex parte Chambers, 364 So.2d 420 (Ala.1978), quoting Manson v. State, 349 So.2d 67, 75 (AIa.Cr.App.), cert, denied, Ex parte Manson, 349 So.2d 86 (Ala.1977).

An indictment for rape in the first degree which tracks the identical language of § 13A-6-61(a)(l) clearly and succinctly charges the elements of the offense. Copeland’s criticism that the indictment contains no facts but merely conclusions of law is unjustified. “[Ujnder our system of pleading, indictments are rather a statement of legal conclusions, than of facts. * * * ‘it is not required that an indictment set up the proof necessary to a conviction.’ ” Hochman, 265 Ala. at 3, 91 So.2d 500. Boyd v. State, 3 Ala.App. 178, 181, 57 So. 1019 (1912).

Alabama Code 1975, § 13A-6-61, defines the crime of rape in the first degree and states every element of the offense. The statute fully defines and describes the offense. Compare Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946), where the statute did not define the crime of criminal conspiracy. The indictment, in the language of the statute, was sufficient to apprise Copeland of the charge against him and was not defective. Compare Boyington v. State, 45 Ala.App. 176, 177, 227 So.2d 807 (1969) (Indictment charging that accused committed a crime against nature with certain person sufficient to charge sodomy); Donovan v. State, 47 Ala.App. 18, 20-1, 249 So.2d 635, cert, denied, 287 Ala. 731, 249 So.2d 638 (1971) (Indictment charging accused with enticing child into entering home for performance of an unnatural act sufficient to inform accused of charge against him even though there was no further description of the act of sodomy). “An indictment charging that accused had carnal knowledge of the female forcibly and against her will is not bad for failure to specify more fully the particular manner in which such carnal knowledge was had.” 75 C.J.S. Rape, § 39(a) (1952).

Here, the indictment did not state “bald conclusions”, Mitchell, 248 Ala. at 172, 27 So.2d 36, Holt v. State, 16 Ala.App. 399, 400, 78 So. 315 (1918), as would be the case if the indictment had merely stated that the accused “raped” the victim. Baughn v. State, 22 Ala.App. 517, 518, 117 So. 608 (1928) (Count of indictment alleging that accused, a man, did have carnal knowledge of girl over 12 and under 16 years of age held not demurrable on ground that it stated a conclusion of the pleader). In alleging sexual intercourse by forcible compulsion, the indictment alleged which of the statutory ways it is claimed he committed the offense.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur except TAYLOR, J., recuses himself.


text:
    Willie James RICHARDSON v. STATE.
    4 Div. 363.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.

      L. Gilbert Kendrick, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

In May of 1975, Willie James Richardson was indicted and convicted for burglary in the first degree. Sentence was thirty years’ imprisonment. In June of 1978, this Court affirmed Richardson’s conviction.

Richardson filed a petition for writ of federal habeas corpus which was granted by the United States District Court for the Middle District of Alabama. That Court found Richardson’s court-appointed counsel ineffective because he filed a one-sentence “no merit” brief in support of Richardson’s direct appeal from his conviction. Richardson v. Bookhart [Ms. March 25, 1983, 81-38-N]. The decision was affirmed in an unpublished opinion by the United States Court of Appeals for the Eleventh Circuit. Richardson v. Bookhart, 729 F.2d 1466 (Ala.1984). That court found that appointed appellate counsel did not follow the procedures outlined in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), and held that “the one-line statement did not fulfill his duty to be an active advocate on appeal. See Passmore v. Estelle, 607 F.2d 662, 664 (5th Cir.1979), cert, denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980). * * * Under Cannon [v. Berry, 727 F.2d 1020 (11th Cir.1984) ], the filing of a one sentence no merit brief must be treated the same as no brief at all and is considered ineffective assistance of counsel, without regard to whether the appeal was frivolous. No showing of prejudice has to be shown by petitioner. See also Perez v. Wainwright, 640 F.2d 596, 598 (5th Cir.1981).” See also Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982). Faced with the choice of setting Richardson free, granting him a new trial, or granting him an appeal with effective counsel, this Court granted the Attorney General’s motion, suspended the rules, set aside the previous affirmance, appointed counsel, and granted Richardson this “out-of-time” appeal. On this appeal of his 1975 conviction, Richardson raises four issues.

I

Initially, Richardson argues that the State failed to prove beyond a reasonable doubt that the burglary was committed “with intent to forcibly ravish” as charged in the indictment. Richardson equates intent to ravish with the intent to have sexual intercourse and contends that evidence which shows that he performed oral-genital sex with the victim does not supply proof of an intent to ravish and shows that his actual intent was to sexually abuse but not rape the victim.

The fourteen-year-old victim testified that she awoke late at night to find the defendant sitting on her bed. He pulled off her pants and began to perform oral sex on her. However, she also testified that the defendant pulled out his sex organ and attempted to have intercourse with her.

We think that testimony affords a sufficient basis upon which to predicate a prima facie case of breaking and entering with the intent to ravish. The gravamen of the offense of burglary is the breaking into of an inhabited dwelling with the intent to commit a felony. It is not required that the intended act be consummated. Hamilton v. State, 270 Ala. 184, 116 So.2d 906, cert, denied, 363 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737 (1960).

Richardson’s intent was a jury question to be decided from all the surrounding facts and circumstances. “If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct, and inferences fairly deducible from all the circumstances.” 13 Am.Jur.2d Burglary § 52 (1964). “The element of intent is rarely, if ever, susceptible of direct or positive proof, since it is a state or condition of the mind. It must usually be inferred from the facts testified to by witnesses and circumstances as developed by the evidence.” Jones v. State, 439 So.2d 1308, 1311 (Ala.Cr.App.1983).

The facts presented in this ease afforded the jury ample evidence of Richardson’s intent to ravish. See Hamilton v. State, 283 Ala. 540, 546, 219 So.2d 369 (1969) (“[Ajppellant’s unexplained presence in the boudoir of a married woman, without pants and shoes, and with his privates exposed, after 2:00 a.m. in the morning.”); Peterson v. State, 441 So.2d 1019 (Ala.Cr.App.1983) (Accused found standing beside child’s bed with his pants down); Jones, 439 So.2d at 1310 (accused got in bed with victim and “fooled” with her arm. The victim testified that he attempted to rape her); Andrews v. State, 437 So.2d 661 (Ala.Cr.App.1983) (Accused entered house wearing only undershorts and evidence of recent injury to victim's vagina); Lowman v. State, 400 So.2d 430, 432 (Ala.Cr.App.), cert, denied, Ex parte Lowman, 400 So.2d 434 (Ala.1981) (Accused fondled victim’s breasts and genitals, unzipped his pants, and pressed his body against victim’s); Davis v. State, 42 Ala.App. 374, 378, 165 So.2d 918, cert, denied, 276 Ala. 703, 165 So.2d 927 (1964) (Accused getting into bed with and kissing a sleeping woman); Simmons v. State, 40 Ala.App. 98, 100, 108 So.2d 184 (1959) (Accused forced his way into home despite the screams and evident fright of a young girl). “An intent to rape may be inferred, in the absence of evidence to the contrary, from the fact that defendant broke and entered through the window of the sleeping room of a girl, put his hand on her person, and, on her awakening, left hurriedly without explanation, or from other circumstances of a similar character.” 12 C.J.S. Burglary § 55 (1938). This case is distinguishable from Cook v. State, 409 So.2d 965, 968 (Ala.Cr.App.1981), wherein this Court held that the State failed to sustain its burden of proving an intent to ravish because, although there was evidence of an intent to steal and to murder, there was “no evidence that appellant got into bed with the victim, kissed her, removed her clothes, took off his own clothes, touched her breasts or private parts, or even spoke to her.”

II

Richardson contends that “an indictment for breaking and entering with intent to forcibly ravish requires the State to prove all the elements of rape except consummation of the sexual act.” He argues that since consent constitutes a defense to a charge of rape, consent also constitutes a defense to burglary involving the intent to ravish. As authority for these arguments, Richardson cites several cases dealing with the offense of assault with intent to rape. Obviously, assault with intent to rape and burglary involving the intent to ravish are different offenses with distinct elements.

Consent is a defense to a charge of assault with intent to rape, Henderson v. State, 38 Ala.App. 549, 552, 89 So.2d 580, cert, denied, 265 Ala. 696, 89 So.2d 584 (1956), because the offense of assault with intent to rape includes all the elements of rape, except consummation of the sexual act. Hogue v. State, 54 Ala.App. 682, 692, 312 So.2d 86 (1975).

Under Alabama Code 1975, § 13-2-40, defining first degree burglary (not to be confused with burglary as defined in Alabama’s new Criminal Code, Alabama Code (1975), § 13A-7-5 et seq.), and at common law, “a defendant who breaks and enters into a dwelling house must, at the time he does so, intend to commit a felony therein. It is not necessary that the felony intended be committed. Nor does it matter why the intended felony was not committed.” C. Torcia, 3 Wharton’s Criminal Law § 338 (1980). Consent is not a defense to breaking and entering with the intent to ravish because “the offense is complete as soon as the premises are broken and entered with the necessary intent, and a conviction of burglary may be sustained despite the fact that defendant changed his mind after entry and committed an offense different from that originally contemplated.” 12 C.J.S. Burglary § 2(c) (1938).

Here, there was evidence that Richardson intended to commit some other offense besides rape because he actually sodomized the victim. See Alabama Code 1975, § 13A-6-63, 64. There is also the victim’s own testimony that he attempted to have sexual intercourse with her against her consent. Under these facts, the question of Richardson’s intent on breaking and entering the dwelling was for the jury.

III

Richardson contends that the trial judge erred in instructing the jury because (a) he failed to charge that in order to convict the jury must find that the defendant broke into and entered the dwelling with an intent to ravish and (b) failed to instruct on the defense of consent.

Trial counsel announced “satisfied” with the oral charge of the trial judge. “Such an announcement precludes our review of the alleged error.” Thompson v. State, 405 So.2d 717, 719-20 (Ala.Cr.App.), cert, denied, Ex parte Thompson, 405 So.2d 721 (Ala.1981).

IV

Finally, Richardson argues that appointed trial counsel was constitutionally inadequate because he failed to object and preserve for review the alleged errors in the oral charge of the trial court.

In Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, at 2066 (1984), the United States Supreme Court held that the proper standard for attorney performance is that of reasonably effective assistance:

“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”
* * * * * *
“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment_ Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”
“The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

The trial judge charged that the defendant “must have had at the time he broke and entered the dwelling house, the intent to steal or to commit a felony.” He also gave defense counsel’s requested charge to that same effect. The trial judge did not specifically instruct that the defendant had to have the intent to ravish at the time of the breaking and entering.

Since consent is not a defense to burglary, counsel’s failure to request such an instruction does not constitute error. Additionally, counsel’s failure to object to the oral charge does not amount to ineffectiveness in light of all the circumstances. We recognize that “[t]he courts in modern decisions have reached differing results as to whether counsel’s failure to object to an instruction constituted incompetent representation.” Annot., 3 A.L.R.4th 601, § 21 (1981).

At trial, Richardson’s defense was alibi. Defense counsel raised the issue of the ' State’s failure to prove the requisite intent in his motion for new trial.

In view of the victim’s testimony that Richardson attempted to have intercourse with her, we find no reasonable probability that, but for counsel’s failure to object to the judge’s charge or to request additional instructions (even if those be considered unprofessional errors), the result of Richardson’s trial would have been different. Here, there is no “reasonable probability” sufficient to undermine our confidence in the outcome of the trial. Considering the “totality of the evidence before the jury” and the “fundamental fairness” of Richardson’s conviction, we find that the conviction is not “unreliable” and that the conduct of Richardson’s counsel at trial cannot be found to be unreasonable or ineffective. Strickland, supra. Our review of the record generates the belief that Richardson was well represented at trial by not only constitutionally adequate, but skilled counsel who was diligent and resourceful in his representation of the accused. We further find that Richardson has been represented on this appeal by proficient and able appointed counsel in a highly professional fashion.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    John Rickey REEVES v. STATE.
    8 Div. 761.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 9, 1984.

      John Edmond Mays, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

John Rickey Reeves was indicted for the first degree kidnapping of one Clara Blackwell, in violation of § 13A-6-43, Code of Alabama 1975. The appellant plead “not guilty and not guilty by reason of insanity” to the charge, and trial was commenced in the cause. The jury found the appellant “guilty as charged in the indictment,” and, after a sentencing hearing, the trial court fixed punishment at life imprisonment without benefit of parole, pursuant to the Alabama Habitual Felony Offender Statute.

The sufficiency of the evidence is not raised on appeal, therefore, we will limit our discussion of the facts to those which are necessary for a discussion of the issues raised as error.

I

The appellant contends that the trial court erred in overruling his objection to testimony of one Denise Blackwell. During the course of the trial, Miss Blackwell, daughter of the victim, testified to a conversation she heard between the victim and the appellant. The appellant contends that such testimony was hearsay and, therefore, not admissible.

The following exchange occurred during the direct examination of Denise Blackwell, and serves as the basis of the appellant’s argument: (R. 55-59)

“Q All right. Tell us what, if anything, happened next.
“A He shoved me into the bedroom, and he still had his hand around my neck so I couldn’t — so I couldn’t move. And I grabbed a strongbox that my dad keeps insurance policies in, and there was some jewelry and stuff in it. And he said, ‘That is enough.’ And he said, ‘Can you drive?’ And I said, ‘Yes.’ So he grabbed me and shoved me out through the den and outside on the driveway. And I forgot there was no car there. And so then he shoved me back into the house.
“Q All right. He shoved you back into the house?
“A Yes, sir.
“Q All right. What, if anything, occurred after he shoved you back into the house, did he continue to look for money or anything at that time?
“A No.
“Q All right. Did he remain in the house with you at that point?
“A Yes.
“Q All right. Did anyone arrive at the house shortly after you and he went back into the house?
“A Yes.
“Q All right. Who, if anyone, arrived.
“A Mother.
“Q Was anyone with her?
“A My little brother.
“Q All right. Your mother, Clara, and your brother, Walter, arrived shortly after he took you back into the house?
“A Yes.
“Q All right. Now, what, if anything, was said or done upon their arrival at the house?
“A I couldn’t see because I had a rug over my face, and I heard her come in the door, and I heard him walk out the door. And she asked him what he was doing here, and he grabbed her and— “MR. POWELL: Judge, we are going to object to this narrative type of testimony and also she is testifying to hearsay testimony about what her mother said and what someone outside of her presence said. She said she had a rug over her face.
“THE COURT: Well, let me say this for the record so we will clarify matters to some extent. In the opening statement counsel for the defendant said, ‘We freely admit that the defendant abducted and kidnapped the victim.’ And he said, ‘We don’t disagree all that much with what the state has to say as concerns this case. We rest our defense on insanity.’ “Now, that binds the defendant, admission of counsel does, and basically the only issue we are trying here is the question of insanity. So I am not going to be so greatly concerned with rulings that go over the conduct of the parties as they come forth other than as they might reflect on the question of insanity or insanity of your client.
“There is no insanity in the record at this juncture, of course, and the defendant couldn’t offer testimony, but insofar as the latter might be connected up, then I will allow it and I will base most of my rulings accordingly so that you won’t be confused by any of them. That is the reason I am telling you this.
“Go ahead with your examination.
“Q (By Mr. Moebes) All right. You can go ahead and tell what happened and what was said at that point when your mother and your brother came in and you had a rug over your face.
“A I could not see him, but I could hear what was being said. And she said, ‘What are you doing here?’ And he said, ‘Shut up, bitch.’ And I just heard a scuffle. And he asked her where the money was. And she said, ‘In the bank.’ And I don’t really remember anything after that until he picked up — he picked me up and shoved me out of the house. All I heard was a conversation.
“Q All right. When he shoved you out of the house, did anyone go with the two of you?
“A My mom.
“Q He took both of you out of the house?
“A Yes, sir.
“Q All right. Could you see your brother, Walter, at the time the two of you were carried out of the house?
“A No, sir.
“Q Do you know where he was?
“A No, sir.
“Q Now, were you able to get a good look at this man’s face?
“A Yes, sir.
“Q Would you recognize him again if you saw him?
“A Yes, sir.
“Q Is that man present here in court today?
“A Yes, sir.
“Q Would you point him out to the ladies and gentlemen of the jury, please. A (Witness pointing.)
“Q Which one are you pointing to, Denise?
“A The one in the middle of the two men.
“Q The one with the brown stripped (sic) shirt on?
“A Yes, sir.
“Q Let the record reflect that the witness had pointed to the defendant, John Rickey Reeves. All right. After the defendant took you and your mother out the front door, what, if anything, did— was done at that point?
“A He shoved me in the car first through the driver’s side and told me— instructed me to get in the floorboard of the passenger’s side of the car, and then he shoved my mother in next to me. She was on the seat. I was in the floor and—
“Q Is this in the front seat or the back seat?
“A The front seat.”

The record reveals that the victim, Clara Blackwell, was present in court, testified as a witness against the appellant in the trial, and was subject to cross-examination by appellant’s counsel. The record further reveals that the appellant was present at the time the statements were made, in fact, he was a party to the conversation. Hearsay does not include statements of witnesses in the present trial subject to cross-examination by the party against whom the statements are offered. Gray v. State, 364 So.2d 694 (Ala.Crim.App.1978); Hammock v. State, 401 So.2d 292 (Ala.Crim.App.1981); C. Gamble, McElroy’s Alabama Evidence, § 242.01(1) (3rd Ed.1977). In the present case, such testimony was not hearsay and was admissible against the appellant.

Moreover, these statements were incident to what was done and shed light on the main facts of the case. Therefore, this testimony was further admissible as part of the res gestae of the offense. Allen v. State, 382 So.2d 1147 (Ala.Crim.App.), cert, denied, 382 So.2d 1158 (Ala.1980); Williams v. State, 389 So.2d 151 (Ala.Crim.App.), cert, denied, 389 So.2d 154 (Ala.1980); Bass v. State, 375 So.2d 540 (Ala.Crim.App.1979).

II

The appellant contends that the trial court erred to reversal by allowing the State to elicit testimony from two physicians that, when the appellant was hospitalized in August of 1981, he was due to stand trial for an offense, and when his case was continued he checked himself out of the hospital. The appellant argues that such evidence of prior crimes was inadmissible, and as a result he should be granted a new trial.

(A)

During the cross-examination of the appellant’s witness, Dr. Conley Duncan, the following occurred: (R. 188-89)

“Q Did you know he was to appear in Morgan County Circuit Court for trial the week after — the week before you observed him?
“A No, I did not.
“MR. POWELL: Objection.
“THE COURT: Overruled.
“MR. MOEBES: That is all.”

The appellant first argues that Dr. Duncan’s testimony was inadmissible. Appellant objected to this testimony at trial, assigning no grounds for the objection. On appeal, he argues that such testimony was of a prior crime of the defendant and, thus, inadmissible.

It should be noted initially that an objection without specifying a single ground is not sufficient to place the trial court in error for overruling such objection. Wyrick v. State, 409 So.2d 969 (Ala.Crim.App.1981); Smoot v. State, 381 So.2d 668 (Ala.Crim.App.1980); Gibbs v. State, 342 So.2d 448 (Ala.Crim.App.1977); Langford v. State, 54 Ala.App. 659, 312 So.2d 65 (1975).

Moreover, where a question is answered before an objection is made, the objection comes too late and the court’s ruling will not be declared in error without a motion to exclude and an adverse ruling. Hooper v. State, 448 So.2d 501 (Ala.Crim.App.1984); Thomas v. State, 440 So.2d 1216 (Ala.Crim.App.1983); Hobbs v. State, 401 So.2d 276 (Ala.Crim.App.1981).

(B)

During the cross-examination of the appellant’s witness, Dr. James Moody, the following occurred: (R. 197-198)

“Q Were you aware when you saw him there on the last day of August, 1981 that he was to appear in court the next day to stand trial?
“A No.
“Q You didn’t know that, did you?
“A No.
“Q Did you know that after his case was continued for the term that he checked out of the hospital and left?
“MR. POWELL: We object to that, Judge. That is irrelevant, it is prejudicial ... It is prejudicing the jury against this defendant.
“THE COURT: Well, if the witness can answer it, it may reflect on the defendant’s conduct, and most of his conduct could have some relevancy on the issue before the Court.
“A Now what was the question.
“THE COURT: I will overrule the objection, particularly since it is cross examination and this is an expert witness.
“Q (By Mr. Moebes) Did you know that after his case in court was continued for the term that the defendant checked out of the hospital and left the hospital?
“A No.
“Q You didn’t know that either, did you?
“A No, no.”

The appellant argues that Dr. Moody’s testimony was inadmissible. Appellant objected to this testimony at trial, assigning as grounds for the objection that such testimony was irrelevant and prejudicial. On appeal he argues that such testimony was of a prior crime of the defendant, and, thus, inadmissible.

We note initially that specific objections are necessary to preserve error. Wyrick v. State, supra; Gibbs v. State, supra. Further, it is well settled that all grounds of objection not specified are waived, and that the trial court will not be placed in error on grounds not raised at trial. Blackmon v. State, 449 So.2d 1264 (Ala.Crim.App.1984); Hughes v. State, 412 So.2d 296 (Ala.Crim.App.1982); Wyrick v. State, supra; Beasley v. State, 408 So.2d 173 (Ala.Crim.App.1981), cert, denied, 408 So.2d 180 (Ala.1982); Bland v. State, 395 So.2d 164 (Ala.Crim.App.1981); Knight v. State, 381 So.2d 680 (Ala.Crim.App.1980); Hargrove v. State, 344 So.2d 823 (Ala.Crim.App.), cert, denied, 344 So.2d 826 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence, § 426.01(11) (3rd Ed.1977).

Here there was no objection that the State was attempting to introduce evidence of a prior crime as is alleged by appellant. As a result, the appellant has failed to preserve this issue for review. Further, the objection was of a general nature, and as such not sufficient to preserve an issue for review. Potter v. State, 416 So.2d 773 (Ala.Crim.App.1982); Wyrick v. State, supra; Lecroy v. Wiggins, 31 Ala. 13 (1857).

Moreover, “a negative response from a witness to questions relating to the accused’s prior misconduct is harmless.” Wyrick v. State, supra; Yates v. State, 390 So.2d 32 (Ala.Crim.App.1980). A negative answer to an improper question does not constitute reversible error. Young v. State, 416 So.2d 1109 (Ala.Crim.App.1982); Wyrick v. State, supra; Barton v. State, 376 So.2d 756 (Ala.Crim.App.), cert, denied, 376 So.2d 761 (Ala.1979); Scroggins v. State, 341 So.2d 967 (Ala.Crim.App.1976), cert, denied, 341 So.2d 972 (Ala.1977).

We have carefully reviewed the record for errors injurious to the appellant and find none therein.

The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Nathan Sherman CASEY v. STATE.
    3 Div. 749.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.

      Maurice S. Bell, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Nathan Sherman Casey was convicted of robbery in the first degree and sentenced to life imprisonment without parole as a habitual offender. He presents four questions on appeal.

I

Defendant takes issue with the trial court’s charge to the jury regarding aiding and abetting, stating in his brief that the “proper definition” of the phrase was set out in Jones v. State, 174 Ala. 53, 57 So. 31 (1911), as follows: The words “aid and abet ‘comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary.’ ” 174 Ala. at 57, 57 So. 31. We agree that Jones v. State, states the correct definition of the term “aid and abet,” and that definition is exactly what the trial judge read to the jury three times during his oral charge. There was no error in the court’s instruction.

II

Casey maintains that the trial court erred by allowing State’s witness, Investigator John Smith, to testify that his visual comparison between a wet tire track at the scene of the robbery and the tire tread on the truck containing the stolen property revealed the “same type [tread] pattern.” This court has determined the same issue adversely to defendant’s position in the companion case of Tice and Sullivan v. State, [Ms. 3 Div. 874, June 26, 1984] (Ala.Crim.App.1984).

III

Casey also challenges the sufficiency of the State’s evidence against him. The facts presented at Casey’s trial were substantially the same as those established at the consolidated trial of his co-defendants and reported in Tice and Sullivan v. State, supra. Thus, we need not detail the evidence except insofar as it points to Casey’s involvement in the robbery.

Although none of the State’s witnesses positively identified Casey as one of the intruders at the coin show robbery, Montgomery Civic Center maintenance engineer James Lee testified that Casey looked like one of the two men who jumped him with a gun, taped his eyes and hands, and held a knife to his throat. In addition, Casey was positively identified as one of two men who requested and paid the rental fee on a Hertz truck, the same vehicle whose tire tread, in the opinion of Officer John Smith, matched the wet tracks at the Civic Center, the day of the robbery.

Dothan police Officers Robert Sorrells and Gary Kinney observed the same Hertz rental truck, along with a Jarpool parking lot the day after the robbery. Sergeant Kinney walked into the Omelet Shoppe, saw Casey and his confederates inside, and kept them and the trucks under surveillance. The officers then observed Casey and the co-defendants leave the Omelet Shoppe, congregate behind the Jarpool truck and split up, with Casey entering the Jarpool truck. Suddenly, Casey jumped from the driver’s side of the Jarpool truck and ran to the Hertz truck. After a high-speed chase, the officers stopped the Hertz rental truck, detained the occupants, and inventoried both vehicles. Over three million dollars worth of stolen coins were recovered from the Jarpool truck.

While circumstantial, the evidence was clearly sufficient to submit the case to the jury. “Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court.” Cumbo v. State, 368 So.2d 871, 875 (Ala.Crim.App.1978), cert, denied, 368 So.2d 877 (Ala.1979).

IV

Finally, Casey argues that the trial judge considered improper evidence of his prior convictions for purposes of sentencing under the Habitual Offender Act and meted out to him a sentence disproportionate to his crime, in violation of the principles enunciated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

At Casey’s sentencing hearing the State introduced evidence purporting to show ten prior convictions by Casey. The offer of two of these, State’s exhibits 3 and 4, was later withdrawn. Two other convictions, evidenced by State’s exhibits 1 and 2, should not have been considered in sentencing because the records did not affirmatively show that Casey was represented by counsel or had waived counsel at the time of the convictions. See Watson v. State, 392 So.2d 1274, 1279 (Ala.Crim.App.1980), cert, denied, 392 So.2d 1280 (Ala.1981). The reception of State’s exhibits 1 and 2, however, was harmless error because six other convictions evidenced by State’s exhibits 5 through 10 were properly introduced and considered by the trial court. See Watson v. State, supra, at 1279.

Exhibits 5 and 6 were certified copies of the judgment entries of two forgery convictions arising out of two guilty pleas in Pike County on August 23, 1968. The exhibits affirmatively showed that defendant was represented by an attorney at each plea and received a sentence of four years for each conviction.

Exhibits 7 through 10 consisted of certified copies of the judgment entries of four forgery convictions arising out of four separate indictments in Houston County. At all convictions, defendant was represented by an attorney. Exhibit 7 reflected a September 23, 1969, conviction following trial by jury and sentence of five years. Exhibit 8 represented a conviction on November 25, 1969, following a guilty plea, and a sentence of four years. Exhibits 9 and 10 also showed convictions following two guilty pleas to forgery indictments, both on December 1,1969, with sentences of three and two years, respectively.

Casey argues that these six forgery convictions should not have been considered as six prior convictions for purposes of the habitual offender statute because the adjudications of guilt arose out of one common occurrence, the guilty pleas were entered on the same day to six counts of a single indictment, and he received only one sentence for all six offenses.

The exhibits introduced by the State simply do not support Casey’s claim that all six of his prior convictions had a common origin, occurred on the same day, corresponded to multiple counts of a single indictment, or carried a single sentence. The judgment entries for State’s exhibits 5 through 10 show adjudications of guilt on August 23, 1968, November 25, 1969, and December 1, 1969. Furthermore, each conviction arose out of a separate indictment with a separate circuit court number and was accompanied by a separate sentence. The judgment entries contained in State’s exhibits 5 through 10 clearly represent six convictions for purposes of the Habitual Felony Offenders Act. See Watson v. State, supra.

Moreover, it is settled that, even if Casey’s six prior convictions had arisen out of a “common event or occurrence,” Seritt v. State, 401 So.2d 248, 250 (Ala.Crim.App.), cert, denied, 401 So.2d 251 (Ala.1981), or had been entered on the same day, Chambers v. State, 418 So.2d 948, 950 (Ala.Crim.App.1982), they would still have constituted six separate convictions. “[Wjhere two or more convictions occur at the same time and in the same court, they are separate convictions within the meaning of the Habitual Offender Statute.” Watson v. State, 392 So.2d at 1279.

The precise question of proportionality raised by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), was “whether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony.” 103 S.Ct. at 3004. The rule announced in Solem does not apply here because, although Casey’s six prior felonies may have been nonviolent, his latest or “triggering” offense (first degree robbery) was one which the legislature has classed as a serious “life-endangering” crime. Compare Seritt v. Alabama, 731 F.2d 728, 735 (11th Cir.1984) (sentence of life imprisonment without parole for first degree robbery following four prior nonviolent felonies is not disproportionate under Solem v. Helm).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Harry D. FENN v. STATE of Alabama.
    4 Div. 260.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Morris Mac Borland, Jr., Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Harry D. Fenn was charged by indictment with receiving stolen property in the second degree, being some watches, a stereo, tires and pistols, the property of Dewey McGill, doing business as Western Auto Store of Dothan, of the aggragate value of $479.00, in violation of § ISA-SIS, Code of Alabama 1975.

The jury found the appellant “guilty as charged” and following a sentencing hearing the appellant was sentenced to 25 years’ imprisonment as punishment.

The appellant’s motion for new trial challenging the weight and sufficiency of the evidence and the arrest of the appellant was overruled.

A pretrial suppression hearing was conducted at which Dothan Police Officer Tommy Martin testified that he arrested the appellant, Harry Fenn, on June 17, 1983, pursuant to a “bolo”. He stated that a bolo was an order from police headquarters to arrest appellant on sight. He stated that he stopped the appellant driving his automobile and radioed for assistance. Do-than Detectives David Kirkland and Danny McGriff arrived on the scene and placed the appellant in their patrol car. Officer Martin also testified that Dothan police regulations require that an inventory search be made of a suspect vehicle on the scene to protect property interests.

Dothan Police Officer Larry Lynn testified that he had issued the police bolo on one “Harry Fenn” based upon information which he had received from one Fredrick Walker that Fenn had burglarized the Western Auto Store in Dothan and removed certain properties. Officer Lynn’s testimony is as follows:

“Q. Now, what information did you have for placing this bolo out on him?
“A. Earlier during this investigation, I’d recovered some other property from the burglary at Western Auto in the possession of a man named Fredrick Walker. During the investigation, Walker told me that Harry Fenn had brought the property to his house and still had some of the property from the Western Auto burglary •
“Q. What was Harry Fenn arrested on at that time? Do you know?
“A. Receiving stolen property.” (R. 7, Supplement)

Officer Lynn further testified that appellant was brought to Dothan Police Headquarters and there interrogated after first being given his Miranda rights and without any threats, intimidation, coercion or inducement of any kind. The appellant confirmed that he had taken certain property from the Western Auto Store in Dothan.

Dothan Detective David Kirkland confirmed the statement as to voluntariness of the statement of the appellant and also stated that Dothan police regulations required the police to impound a vehicle, and make an inventory search where an arrest such as that of the appellant was made and that such was done in this case. Some watches, pistols and a stereo were found in the vehicle.

The appellant took the stand at the suppression hearing for the limited purpose of testifying as to what occurred and stated that he did not give the officers permission to open the trunk and that they did not ask for permission. He was asked after being stopped on June 17, 1983, while driving down Carl Street, to show his driver’s license and upon being identified, he stated that they removed a sack from the trunk containing some watches and pistols. He stated that he was told at police headquarters that they knew he “broke in Firestone and Saben Appliances” and that he might as well tell all that he knew.

The trial court denied the motion to suppress following this hearing.

At trial Dewey W. McGill testified that he owned the Western Auto Store in Do-than, Alabama on June 14-15, 1983. He testified that on the morning of the 15th he came to the store and found some missing pistols, nearly 70 watches missing and that a lawn mower belonging to a Mrs. Snell-grove, which had been brought in for repairs, had been removed and that the lawn mower had a tag on it with her name on the lawn mower. He also testified that two rifles, one a Daisy rifle and one a Marlin rifle, were also removed. He stated that he further saw these items at police headquarters two days later and identified them.

Dothan Police Sergeant Larry Lynn testified at trial that he had conducted a search of the residence of Fredrick Walker and seized some watches, some guns, tires and electronic equipment and that he was told by Walker that the appellant, Harry Fenn, had brought these items to his home. He then put out a police bolo authorizing the arrest of Fenn. He further stated that when he went to the scene of the arrest of Fenn he found a tag in the trunk of the car with Mrs. Snellgrove’s name, “Laura Snell-grove”, and recognized it as being a repair ticket from Western Auto. This tag was identified at trial and Sergeant Lynn stated that he removed it from the trunk of Fenn’s automobile.

Sergeant Lynn identified the property which was seized at Walker’s home as follows:

“A. There was one H & R .32 caliber pistol, one Daisy .22 caliber rifle, one Marlin 38-40 rifle, a Midland 19 inch television, a GPX cassette AM-FM stereo, a GPX model 870 AM-FM stereo, four Western Auto tires, and twelve assorted Timex and Quartz brand watches.” (R. 21).

Sergeant Lynn also stated that he saw in Sergeant Kirkland’s car “approximately 16 watches and a Dorchester AM-FM stereo radio” which had just been removed from appellant’s trunk at the scene of the arrest.

Dothan Detective Sergeant Kirkland confirmed Sergeant Lynn’s testimony at trial and further testified that he gave the appellant a Miranda warning and that without any threats, intimidation, coercion or inducements, he obtained a statement, subsequently, at Dothan Police Headquarters in which the appellant stated that the items which were removed from the trunk of his automobile had come from the Western Auto Store in Dothan two days earlier.

Sergeant Kirkland also testified that it was Dothan police regulations to conduct an inventory search of the items seized from a vehicle such as in the case at bar.

Dothan Police Officer Tommy Martin testified he was present at the time of the arrest of the appellant and subsequently when he was taken to police headquarters on June 17,1983. He stated that the appellant had a watch of the type found in the trunk inside of some rubber boots which he was wearing.

Appellant’s motion to exclude and motion to suppress which were made at trial were overruled.

The appellant did not present any testimony at trial but at the sentencing hearing two prior felonies were presented by counsel for the defense to the trial court.

I

Appellant contends that his arrest was illegal and that the items seized from the trunk of his automobile were seized unlawfully.

In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), the United States Supreme Court defined probable cause as a practical, non-technical conception.

Further, in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the court indicated the following:

“Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed ...” (Citation omitted.)

In the case at bar, Sergeant Lynn had been to the home of Walker and there found a number of items which had been taken from the Western Auto Store two days earlier. He further had a statement from Walker that the appellant had brought those items to his home and also had a statement from Walker’s wife that she had observed the appellant and her husband in the room together with the property in question. Clearly, Sergeant Lynn had probable cause to direct that an arrest be made of the appellant for his involvement with the property missing from the Western Auto Store. Section 15-10-3, Code of Alabama 1975 and authorities herein cited. Tice v. State, 386 So.2d 1180 (Ala.Crim.App.1980), cert, denied, 386 So.2d 1187 (Ala.1980).

II

Where, as here, probable cause exists for the arrest and ensuing search made at the scene, the police officers properly made an inventory of the items seized from the trunk of the appellant’s automobile. This was done pursuant to Dothan Police Department regulations as testified to by three officers. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Lippold v. State, 365 So.2d 1015 (Ala.Crim.App.1978), cert, denied, 365 So.2d 1022 (Ala.1979); Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), affirmed, 426 So.2d 882 (Ala.1982).

III

We have carefully examined the testimony of the arresting officers and as indicated herein have determined that the arrest and subsequent search of appellant's vehicle were in all respects proper.

The record also discloses that the appellant was properly given his Miranda rights and also a proper “voluntariness predicate” was herein established. Kitchens v. State, 445 So.2d 1000 (Ala.Crim.App.1984). The appellant’s statement admitting his involvement with the missing properties were properly admitted at trial.

We have carefully examined this record and find no error. The judgment below is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    William Charles LADIEU, Jr. v. STATE.
    1 Div. 880.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    William Charles Ladieu, Jr., pro se.
    Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

William Charles Ladieu, Jr. filed a pro se petition for writ of error coram nobis alleging that the State violated his plea bargain agreement and that counsel was incompetent. The petition was denied without a hearing.

The petition is meritorious on its face and requires an evidentiary hearing. Stephens v. State, 420 So.2d 826 (Ala.Cr.App.1982); Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981). The Attorney General recognizes and admits the error of the circuit court. The judgment of the Circuit Court of Mobile County dismissing the petition is reversed and this cause is remanded.

REVERSED AND REMANDED.

All Judges concur.


author: BOYD, Chief Justice.

text:
    A.O., a juvenile, Petitioner, v. STATE of Florida, Respondent.
    No. 63974.
    Supreme Court of Florida.
    Sept. 27, 1984.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., Miami, for respondent.
   BOYD, Chief Justice.

We have for review a district court of appeal decision, A.O. v. State, 433 So.2d 22 (Fla. 3d DCA 1983), in which, pursuant to article Y, section 3(b)(4), Florida Constitution, the court certified the following question of great public importance:

[WJhether a juvenile may be adjudicated delinquent based upon a finding of contempt for violation of a previous order adjudicating him a dependent.

433 So.2d at 23.

In November 1981, A.O. was declared a dependent child and ordered to obey his mother, keep a curfew, and attend school. Because of A.O.’s continued truancy, the state filed a petition for delinquency on February 24, 1982, charging that A.O. was “A Delinquent Child within the intent and meaning of the Laws of the State of Flori-da, F.S. Chapter 39,” because he had violated the November 1981 court order, and was therefore “in contempt of Court pursuant to sections 39.412 and 39.01(8), Florida Statutes.” A.O. pled nolo contendere and specifically reserved the right to appeal the question whether the continued truancy shown could support an adjudication of delinquency. On appeal, the Third District Court of Appeal affirmed the adjudication of delinquency.

Section 39.01(9), Florida Statutes (1981), defines a dependent child as, among other things, one who is found to be “habitually truant from school.” Section 39.01(8), on the other hand, defines a delinquent child as one who has been found to have committed “a felony, a misdemeanor, contempt of court, [etc.].” (Emphasis added.) When A.O. disobeyed the court order commanding him to attend school, he was in contempt of court. The question here is: did this contempt, grounded in the continuing or “status” offense of habitual truancy, support a finding of delinquency?

Petitioner relies on the decision in J.M.J. v. State, 389 So.2d 1208 (Fla. 1st DCA 1980). There, the juvenile had been adjudicated dependent for “runaway” and truant behavior under section 39.01(9), Florida Statutes (Supp.1978). The dependency order imposed conditions prohibiting such behavior. A recurrence of the behavior led to a contempt charge resulting in the withholding of adjudication of delinquency and imposing probationary terms again prohibiting the truancy and “runaway” behavior. J.M.J. then violated the terms of the probation, was declared to be in contempt of court, and, on the ground of contempt, was adjudicated delinquent. The district court found that there was no valid petition for adjudication of delinquency in the record upon which such an adjudication could properly be based as required by section 39.05, and that under chapter 39, the legislative intent was to treat truancy and running away from home as acts of dependency. The court reasoned as follows:

Notably, delinquent children are those who have usually committed crimes. See § 39.01(8) and (34). In contrast, dependent children include those neglected and those formerly known as ungovernable. Compare § 39.01(9), Fla.Stat. (Supp.1978) with 39.01(9), Fla.Stat. (1977). Further, distinguishing between delinquent and dependent acts has important consequences for a child. It is impermissible to detain a runaway child in a cell with a child charged with having committed a crime. See § 39.402(4). Also, the court may commit a delinquent to the custody of the department until the age of 19, not 18. Compare § 39.11(l)(c) with § 39.-41(l)(c). Undoubtedly, the delinquent child incurs a stigma very much like that attached to the word “criminal.” See State In Interest of M.S., 73 N.J. 238, 374 A.2d 445, 448 (N.J.1977). It is apparent that the legislature, in deliberate wisdom, chose to classify persistent runaways and habitual truants only as dependent children, providing the court with a flexible range of placement options to meet the child’s need for supervision. § 39.41. Thus, we hold the delinquency adjudication under chapter 39 is invalid under the facts presented in this case.

389 So.2d at 1210. In a footnote the court pointed out that its decision was not dealing with the court’s inherent power to punish “for contempt outside the ambit of the juvenile statutes.” Because it was clear that the lower court had intended to “employ chapter 39 mechanisms,” the inherent contempt power was not the basis of the delinquency order. 389 So.2d at 1210, n. 4.

The state relies principally on the decision of this Court in R.M.P. v. Jones, 419 So.2d 618 (Fla.1982), approving an order of detention of a juvenile as punishment for the juvenile’s contempt of court in disobeying the conditions imposed in a previous dependency order. In R.M.P., the Court was presented with a certified question framed as follows:

Whether a juvenile court may impose conditions upon a dependent child, find the violation of those conditions constitutes contempt of court, and place the child in secure detention in the custody of the Department of Health and Rehabilitative Services for a limited time?

419 So.2d at 619. In R.M.P., the juvenile was adjudicated dependent and conditions of behavior were imposed, including that she not run away again and that she not associate with a specified individual. The order specified that violation would lead to contempt proceedings. The juvenile then again associated with the forbidden friend and ran away from home. The court found her in contempt and sentenced her to twenty days in juvenile detention.

The juvenile argued that the statute did not authorize imposition of conditions of behavior in a dependency order and that the statute did not authorize punishment for contempt based on the conduct shown. This Court found that the juvenile court could impose conditions in connection with an adjudication of dependency and that the conditions imposed were reasonable. As for the second argument, the Court found that the order finding contempt and imposing a sentence of detention for a specified period was an exercise of the trial court’s inherent contempt power and was not a chapter 39 delinquency adjudication. The Court distinguished J.M.J. where it was clear that the court had intended to utilize “chapter 39 mechanisms.”

In the present case, it is clear that the juvenile court was employing chapter 39 in the contempt proceedings. The petition for delinquency charged A.O. as a delinquent “within the intent and meaning” of chapter 39. The accusation of contempt was made pursuant to chapter 39. Thus, under the holding of which was distinguished and not in any way disturbed by this Court’s decision in R.M.P., we hold that the petitioner was erroneously adjudicated delinquent.

The certified question, set out above, is framed more broadly than the facts of the case require. We therefore rewrite it as follows:

May a juvenile be adjudicated delinquent for contempt of court under chapter 39, based upon a finding of the dependency trait, “being habitually truant from school,” section 39.01(9), Florida Statutes (1981), where the juvenile was previously found to be a dependent child on the same basis and was ordered to attend school?

We answer the revised certified question in the negative and hold that a juvenile may not be adjudicated delinquent for contempt of court under chapter 39 for continuing to be truant after being ordered to attend school in a previous dependency order. This holding comports with the expressed intent of the legislature in chapter 39 to balance the interests of society and the juvenile and to avoid retributive punishment whenever reasonably possible. § 39.-001(2)(a) et seq., Fla.Stat. (1981).

Our holding does not detract from or modify R.M.P. v. Jones. While an adjudication of delinquency is not a permissible sanction under chapter 39 for a dependent child’s disregard of a court order, the trial court still retains its inherent authority to punish for contempt, including, if necessary, placing the child in a secured detention facility for a reasonable period of time.

The decision of the district court of appeal, affirming the circuit court’s order of delinquency, is quashed. The order of delinquency is vacated and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ„ concur.

ADKINS, J., dissents.


author: SHAW, Justice. EHRLICH, Justice,

text:
    OPPENHEIMER & CO., INC., Petitioner, v. Marcia YOUNG, Respondent.
    No. 64140.
    Supreme Court of Florida.
    Sept. 27, 1984.

      Stanley A. Beiley, Richard E. Brodsky and David S. Garbett of Paul, Landy, Bei-ley, & Harper, P.A., Miami, for petitioner.
    Mercedes C. Busto of Bailey & Dawes, Miami, for respondent.
   SHAW, Justice.

This is a petition to review Young v. Oppenheimer & Co., 434 So.2d 369 (Fla. 3d DCA 1983), on the ground it conflicts with Raymond, James & Associates v. Maves, 384 So.2d 716 (Fla. 2d DCA 1980), and Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Respondent Young sued petitioner Oppenheimer claiming Oppenheimer violated the Florida Securities Act, chapter 517, Florida Statutes (1981), and committed common law fraud, negligence, and breach of fiduciary duty in handling Young’s brokerage account. The trial court granted Oppenheimer’s motion to compel arbitration on the basis of an agreement between the parties requiring arbitration of disputes. In doing so, the trial court relied on Melamed for the proposition that the Federal Arbitration Act compelled arbitration. The district court granted a writ of certio-rari and quashed the trial court’s order on the basis that the Florida Securities Act extends the same civil remedies as the laws of the United States for the purchasers of securities in interstate commerce and that United States law precludes the enforcement of an arbitration agreement when a dispute concerns securities in interstate commerce. Shearson, Hammill & Co. v. Vouis, 247 So.2d 733 (Fla. 3d DCA 1971).

Petitioner first urges that section 517.241, Florida Statutes (1981) does not contain an express prohibition against arbitration of disputes arising under the Flori-da Securities Act and that our decision is controlled by section 682.03, Florida Statutes (1981), which provides that arbitration agreements are valid, irrevocable, and enforceable. In support, petitioner points out that there is a strong public policy favoring arbitration as an alternative to judicial litigation of disputes. Petitioner concedes that the arbitration agreement would not be enforceable under federal securities laws but nevertheless urges that it should be enforced under state law. We agree with much of petitioner’s argument but not its conclusion. Arbitration agreements are valid, irrevocable, and enforceable and public policy favors arbitration as an alternative to litigation. Nevertheless, we are persuaded that it was the intent of the legislature, in enacting the Florida Securities Act, to rely on federal laws and enforcement efforts in the securities field and to cooperate with those efforts in formulating Florida law. Prior to the enactment by Congress in May 1933 of the Securities Act of 1933, regulation of securities was the responsibility of the states and all states, except Nevada, had laws governing securities transactions. Section 18 of the Securities Act preserved the role of the states in regulating securities transactions. The Florida Legislature reacted almost immediately to the entry of the federal government into the securities field by enacting chapter 16174, Laws of Florida (1933). Sections 4, 5, and 6 of chapter 16174 are pertinent to our inquiry. Section 4 provided not only for cooperation with federal authorities regulating securities transactions but, to the degree possible under state law, provided for the actual application of federal laws and regulations to the sale of securities intrastate. Section 5 granted to purchasers of securities the same civil remedies provided by laws of the United States for purchasers of securities under such federal laws. Section 6 granted jurisdiction to the courts of this state to hear civil suits concerning securities violations of federal laws to the degree the courts had jurisdiction to hear civil suits concerning securities violations of the laws of Florida. It is clear from the above that the legislature intended that Florida securities laws be hand-in-glove with federal securities laws and that Florida purchasers of securities be granted the full range of civil remedies offered by both Florida and federal securities laws. It is a well established rule of statutory construction that statutes or parts of statutes borrowed from other jurisdictions will normally be given the same construction in Florida courts as the prototype statute is given by courts in other jurisdictions. Flammer v. Patton, 245 So.2d 854 (Fla.1971). This rule is, of course, not binding and is subordinate to the cardinal principle that legislative intent is the polestar of statutory construction. Tyson v. Lanier, 156 So.2d 833 (Fla.1963). Here, however, the rule is particularly apt because we have a clear statement from the legislative text that the legislature intended to maintain close consonance with federal legislation. To our mind, this specific legislative intent in a particular field of law carries more weight than the general declaration in section 682.03 that arbitration agreements are valid, irrevocable, and enforceable. Thus, we agree with the district court that we should follow Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953) in holding that an arbitration agreement concerning disputes in securities is unenforceable. We are also influenced by the very practical consideration that holding otherwise would waste judicial resources. Normally, both federal and state causes of action based on security violations in interstate commerce may be heard in either federal or state courts. This is the most economical disposition available and serves both federal and state interests. The adoption of a rule that the state cause of action is subject to arbitration, while the federal cause of action is not, would lead to an uneconomical bifurcation of proceedings.

Petitioner next urges that the Federal Arbitration Act (FAA) preempts the question of arbitration of disputes concerning interstate commerce and that the supremacy clause mandates that we enforce the arbitration agreement. In support, petitioner relies most heavily on Southland Corp. v. Keating, — U.S. —, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), but also cites Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), Kroog v. Mait, 712 F.2d 1148 (7th Cir.1983), cert, denied, — U.S. —, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984), Melamed, and Maves, for the same proposition. In Keating v. Superior Court of Alameda County, 31 Cal.3d 584, 183 Cal.Rptr. 360, 645 P.2d 1192 (1982), the California Supreme Court held that claims asserted under the state’s Franchise Investment Law were not arbitrable and that the state law did not contravene the provisions of the FAA calling for the enforcement of arbitration agreements when the dispute involved interstate commerce. In so holding, the court noted that “California’s policy of protecting judicial remedies ... was patterned after, and consistent with, federal policy in the analogous area of securities investment.” Id. at 1202-03. In reversing the California Supreme Court, the Southland Court held that the California law was contrary to the FAA and thus violated the supremacy clause. By footnote, the Court rejected the analogy drawn with the federal securities law and the reliance on Wilko:

The question in Wilko was not whether a state legislature could create an exception to § 2 of the Arbitration Act, but rather whether Congress, in subsequently enacting the Securities Act, had in fact created such an exception.

Southland, 104 S.Ct. at 864 n. 11. Petitioner urges that Southland is directly on point and dispositive of the issue before us because, in petitioner’s view, Southland holds that a state may not contravene the provisions of the FAA. Although it is substance and not form which controls the question of what constitutes a “security,” typically, a franchise is not considered to be a security within the meaning of federal securities law. Nash & Associates, Inc. v. Lum’s, Inc., 484 F.2d 392 (6th Cir.1973). In our view, the Southland court simply recognized that a franchise is not typically a security and rejected the attempted analogy between franchise regulation and securities regulation. The court did not reject, or even address, the question of whether the Wilko exemption from the FAA extended to state securities laws. It is hazardous to draw conclusions from non-dispositive footnotes, but the rejection of the analogy at least suggests that had the analogy been accepted or had the California law concerned securities regulations, the Wilko exemption would have extended to the state law. For our purposes, it is enough to say that Southland is off point.

Petitioner also relies on Scherk, which dealt with an agreement between United States and foreign citizens to resolve any disputes in an international forum. On its facts, Scherk offers no guidance here. Scherk appears to rest on the pragmatic consideration that there is no international supremacy clause to resolve disputes about forum selection.

Petitioner also relies on Kroog. We agree that Kroog is on point but, for the reasons set forth herein, do not agree with the Kroog court.

Petitioner also relies on two Florida cases, Melamed and Maves. The issue in Melamed was whether the FAA superseded inconsistent provisions of the Florida arbitration code, sections 682.01 to 682.22, Florida Statutes (1979), which provided that an arbitration agreement was not enforceable if it incorporated the laws of another state. Although the facts of the case indicate that an interstate securities transaction was involved, the court did not address the issue of whether Wilko and Florida securities law controlled. We agree with the court’s disposition of the issue as posed and see no conflict with our decision here. In Maves the court addressed the issue posed here but concluded that the Florida Securities Act had no counterpart to the federal anti-waiver exemption established by Wilko. We disagree and disapprove Maves.

Finally, petitioner urges that in deciding this question we are obliged to look only at the FAA and that the issue is one involving arbitration, not securities regulations. We disagree. It is true that if we looked only at the text of the FAA we would find conflict between preemptive federal law and our decision here. What petitioner overlooks is that we are obliged not only to look at federal statutes but at controlling case law from the Supreme Court interpreting these statutes. In Wilko the Court interpreted both federal securities law and the FAA and held that the FAA did not require arbitration of disputes concerning interstate securities transactions. Thus, we see no conflict between our decision here and federal law.

The decision of the district court is approved.

It is so ordered.

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

EHRLICH, J., dissents with an opinion in which McDONALD, J., concurs.

EHRLICH, Justice,

dissenting.

I dissent because I do not believe that section 517.241(3), which incorporates into Florida law the civil remedies provided by federal law, makes Wilko v. Swan a mandatory gloss on the state security laws under which this claim was raised.

I recognize that Wilko stands for the semantically and logically incongruous proposition that the choice of a forum is, in itself, a remedy. That decision was based on the protection expressed in section 14 of the Securities Act of 1933 (codified at 15 U.S.C. § 77n): “Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.” (Emphasis supplied.) The Wilko Court went on to find that the right to bring a claim in judicial proceedings is “a provision of this subchapter” which could not be waived. The Court there, it must be remembered, balanced a general arbitration act against a specific anti-waiver protection, and applied the rule of statutory construction that a specific provision controls over a general one. Thus, the section which specifically addressed federal securities regulation controlled over a federal statute which generally authorized arbitration.

If the Florida legislature intended to provide anti-waiver protection through section 517.241(3), it did so in an oblique and confusing way. The general incorporation of a body of law that includes a federal anti-waiver provision which, by its very terms, limits its applicability to that specific sub-chapter of federal law and the rules and regulations of the SEC, cannot, it seems clear to me, control over the specific authorization of arbitration in Florida law. To the extent the incorporation of the anti-waiver provision is incorporated into Flori-da law, it is still expressly limited to those claims asserting federal civil remedies, not those, like the one now before us, arising from state law.

I would disapprove the decision of the district court below and approve Maves and Melamed.

McDONALD, J., concurs.

      . Prior to initiating suit in state court, respondent brought suit in federal district court on both federal and state causes of action. The state cause of action was dismissed for lack of pendent jurisdiction. Respondent urges that petitioner waived its right to arbitration by failing to invoke the arbitration agreement in federal court. Petitioner counters, and we agree, that it would have been pointless to invoke the agreement in federal court because federal law prohibits enforcement of such agreements where the dispute concerns securities in interstate commerce. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953).

      . For a contemporaneous discussion of the impact of the Securities Act of 1933 and the Securities Exchange Act of 1934 on state blue sky laws, see Smith, State Blue Sky Laws and the Federal Securities Acts, 34 Mich.L.Rev. 1135 (1936).

      . Section 4 reads:
      The Securities Commission shall have power to make any reasonable rules and regulations which it may deem necessary to co-operate effectively with the Federal Trade Commission or any other agency of the United States Government, which may have supervision or control over the sale of securities in Interstate Commerce under any law of the United States, now or hereafter in force, and to apply to intrastate sales or offerings such Federal laws and/or regulations applicable to such sales or offerings in interstate commerce, as the Commission may deem necessary for the proper conduct of such intrastate sales or offerings, and not in conflict with the laws of this State.

      .Section 5 reads:
      The same civil remedies provided by laws of the United States now or hereafter in force, for the purchasers of securities under any such laws, in interstate commerce, shall extend also to purchasers of securities under Chapter 14899, Laws of Florida, Acts of 1931, entitled "An Act regulating the sale of securities and to make uniform the law relating thereto, and to repeal statutes which are inconsistent herewith” and to acts amendatory thereof, either expressly or by implication.

      . Section 6 reads:
      When not in conflict with the constitution or laws of the United States, the courts of this State shall have the same jurisdiction over civil suits instituted in connection with the sale or offer of sale of securities under any laws of the United States, now or hereafter in force, as they may have under similar cases instituted under the laws of the State of Flori-da.

      . Petitioner suggests that the Wilko decision would be different were it decided today. We are aware of the increased interest in finding alternatives to judicial litigation and that arbitration is a suitable method of resolving many disputes. Rehnquist, A Jurist's View of Arbitration, 32 Arb.J. 1 (1977). If the Court were to recede from Wilko by holding that arbitration agreements could be enforced to resolve disputes concerning interstate securities transactions, our decision would be different. In this connection, we note that the Court has recently agreed to review a case presenting either the issue here or, in a larger sense, the Wilko issue. Byrd v. Dean Witter Reynolds, Inc., 726 F.2d 552 (9th Cir.), cert, granted, — U.S. —, 104 S.Ct. 3509, 82 L.Ed.2d 818 (1984).


author: GLICKSTEIN, Judge.

text:
    Thomas SUFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1934.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.
    Richard W. Springer and Barry E. Krischer of Kohl, Springer, Springer, Migh-doll & Salnick, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant raised four points in his brief, none of which warrants discussion or reversal. At oral argument, however, this writer inquired of defense counsel why the question had never been raised in this court as to the propriety of the trial court’s imposition of consecutive mandatory minimum sentences in light of Palmer v. State, 438 So.2d 1 (Fla.1983), which was decided after the trial court imposed sentence upon this defendant. We can consider such error here initially because it is fundamental. See Pettis v. State, 448 So.2d 565 (Fla. 4th DCA 1984), and Pugh v. State, 423 So.2d 398, 399 (Fla. 1st DCA 1982), dismissed, 426 So.2d 28 (Fla.1982).

This court has interpreted Palmer in Pettis, which involved an aggravated assault upon one person and an assault on another by the same defendant in one same setting, and in Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984). In Whitehead, we were faced with consecutive mandatory minimums imposed upon convictions for robbery with a firearm of a store manager and aggravated assault on another person in the store. In both cases we held that only one criminal episode was involved, and that consecutive mandatory minimums could not be imposed.

A different but consistent result was reached in Wilson v. State, 449 So.2d 822 (Fla. 1st DCA 1984), a case involving sentences for kidnapping and rape. The first district opined that because the victim had been abducted, transported elsewhere, and then raped, the offenses arose from separate incidents occurring at separate times and places. Palmer, it said, was therefore distinguishable and did not proscribe consecutive mandatory minimums.

In the instant case, there were mandatory minimums assessed for burglary, robbery, and attempted robbery, and the parties claim that one was imposed for aggravated assault, although this is not indicated on the sentencing sheet. The sentences for burglary and attempted robbery were to run together, and consecutive to them were to run the robbery and aggravated assault sentences, concurrently. The convictions arose from an incident in which appellant gained entry to a trailer (burglary), accosted several people (aggravated assault), demanded valuables (attempted robbery), then entered a bedroom and robbed another person (robbery). These circumstances are more closely aligned with those encountered in Pettis and Whitehead than with the Wilson fact pattern. The offenses all occurred within one trailer in very close time sequence, less than one-half hour, as admitted by the state. The case therefore comes under Palmer’s holding, and consecutive mandatory mínimums were incorrectly entered by the trial court, who could not know that Palmer was forthcoming. We vacate the consecutive mandatory minimum sentences and remand for correction of the sentences. Appellant need not be present.

ANSTEAD, C.J., and LETTS, J., concur.