text:
    Jeffrey A. ABBOTT v. STATE.
    1 Div. 860.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.

      James H. Lackey, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellant Jeffrey A. Abbott was indicted on February 10, 1984, by the Mobile County Grand Jury and charged by two indictments for: (1) burglary in the first degree, pursuant to § 13A-7-5, Code of Alabama 1975, and (2) theft of property in the first degree, pursuant to § 13A-8-3, Code of Alabama 1975. Subsequently the indictments were amended, at the request of the State, on April 9, 1984, to charge appellant with: (1) burglary in the third degree, pursuant to § 13A-7-7, Code of Alabama 1975, and (2) theft of property in the second degree, pursuant to § 13A-8-4, Code of Alabama 1975.

On April 9,1984, appellant pleaded guilty to the indictments as amended and, upon these pleas of guilty, he was sentenced to nine years in the penitentiary for each offense, the sentences to run concurrently. Appellant filed a notice of appeal on May 18, 1984, and counsel was appointed to represent him.

Appellant’s appointed appellate attorney has filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) brief, contending that neither error harmful to appellant nor any error which counsel could advance in good faith and conscience is present in the record. We disagree.

The record reflects that the trial judge sentenced appellant as a habitual offender, pursuant to § 13A-5-9, Code of Alabama 1975. The judge informed the appellant that the maximum and minimum sentences that could be imposed would be “not less than two years nor more than ten years’ imprisonment in the state penitentiary” for each offense charged.

I

Burglary in the third degree and theft of property in the second degree are both Class C felonies, which carry a sentence of “not more than 10 years or less than 1 year and 1 day”. Code of Alabama 1975, § 13A-5-6. If the habitual felony offender statute is applicable, then “on conviction of a Class C felony, he must be punished for a Class B felony”. Code of Alabama 1975, § 13A-5-9. A Class B felony is punishable by “not more than 20 years or less than 2 years”. Code of Alabama' 1975, § 13A-5-6.

It is apparent that the trial judge did not properly apprise appellant of the permissible range of punishment which could result from his plea of guilty, regardless of whether appellant was being sentenced as a habitual offender or as a first offender.

In Miliner v. State, 414 So.2d 133, 134 (Ala.Crim.App.1981), this court stated: “[A]n accused must be informed of the minimum and maximum possible sentence for his offense as an absolute constitutional prerequisite to acceptance of a guilty plea”. See also Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973); Pratte v. State, 448 So.2d 502 (Ala.Crim.App.1984); McGhee v. State, 412 So.2d 327 (Ala.Crim.App.1982) and cases cited therein. In Miliner, the court informed the defendant that robbery in the third degree “would subject [him] to punishment of not less than 15 or up to life imprisonment”. This court held that the defendant should have been told the minimum would have been 15 years and the maximum was “properly life imprisonment, or a term not exceeding 99 years.” Id. at 135.

In the case at bar, the trial court should have informed the appellant that the proper sentence he was subject to under the habitual felony offender statute was not more than twenty years nor less than two years. If appellant was not to be sentenced as a habitual offender, the court should have informed appellant that the sentence he was subject to would be not more than 10 years nor less than one year and one day.

II

As previously noted, the record reflects that appellant was sentenced in accordance with the Alabama Habitual Felony Offenders Act, § 13A-5-9, Code of Alabama 1975. The State offered no proof of prior convictions, nor does it appear from the record that appellant admitted any pri- or convictions. In this regard, the record discloses the following colloquy between the trial court and the State’s attorney:

“THE COURT: What did y’all agree?
“MS. BEDWELL: Judge, he has one conviction from another state, so he’s a habitual offender. The minimum would be two, and the maximum would be twenty; and Mr. Copeland has recommended nine years to serve in each case and that the sentences run concurrent. And I would add for the record that there is restitution due in the theft case in the amount of $1,436 for the damage done to the vehicle.
“THE COURT: You understand that? You discussed it with — $1,450?
“MS. BEDWELL: Four hundred and thirty-six.
“THE COURT: Four hundred and thirty-two.”

The court then sentenced appellant as recommended.

“Unless an accused actually admits his prior conviction .... the State must prove his record in order to trigger the operation of the habitual offender sentencing provisions.” McGhee at 328. “A proper way to prove a prior conviction of a felony is by introducing a certified copy of the minute entry, showing a valid prior conviction of the defendant of a felony, or by the admission of the defendant.” Thomas v. State, 435 So.2d 1319 (Ala.Crim.App.), reversed on other grounds, Ex parte Thomas, 435 So.2d 1324 (Ala.), on remand, Thomas v. State, 435 So.2d 1326 (Ala.Crim.App.1982), appeal after remand, 435 So.2d 1327 (Ala.Crim.App.1983).

We, therefore, reverse and remand this cause to the trial court due to the failure of the trial judge to properly advise appellant of the minimum and maximum sentences he could receive for the offenses charged and the failure of the record to disclose sufficient proof of prior felony convictions.

REVERSED AND REMANDED.

TYSON, HARRIS and TAYLOR, JJ., concur.

BOWEN, J., concurs in result only.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Willie J. CLEMMONS v. STATE.
    3 Div. 22.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.

      H. Lewis Gillis, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Willie J. Clemmons pled guilty to the fraudulent use or possession of a credit card in December of 1983. There is no indication that the conviction was appealed. In March of 1984, Clemmons filed a pro se petition for writ of error coram nobis alleging that his appointed counsel was ineffective, that a plea bargain agreement was not honored, and that his confession was coerced. After a hearing, at which Clem-mons was represented by appointed counsel, the trial judge denied the petition. Clemmons appeals from jthat denial.

In ruling on the petition, the trial judge found the allegations incredible: “From the evidence produced in this case, the Court does not find that the Petitioner’s story is creditable_ [T]he Court finds this petition frivolous, not made in good faith.” Our review of the testimony presented at the hearing convinces us that the judge’s conclusions are justified by the evidence.

Clemmons did not carry his burden of proof.

“In a coram nobis proceeding the petitioner bears the burden of submitting clear, full and satisfactory proof of matters which, had they been timely submitted at trial, would have prevented a judgment of conviction... This burden extends beyond a mere balancing of probabilities to clearly and convincingly satisfy the court...
“The degree of proof is ‘highly exacting as to facts “and always means more than reasonably satisfying.” ’ The petitioner must convince the trial judge of the truth of his allegation and the judge must ‘believe’ the testimony.” Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979) (citations omitted).

“Even where conflicting evidence is presented at a hearing on a petition for writ of error coram nobis, the trial judge must ‘believe’ the evidence offered by the petitioner before he will be justified in granting relief. Seibert v. State, 343 So.2d 788, 790 (Ala.1977).” Howton v. State, 432 So.2d 548, 550 (Ala.Cr.App.1983).

“This Court cannot pass upon the credibility of witnesses”, Grimes v. State, 24 Ala.App. 419, 136 So. 485 (1931), nor “pass judgment on its possible truthfulness or falsity.” Fagan v. State, 35 Ala.App. 13, 17, 44 So.2d 634, cert. denied, 253 Ala. 444, 44 So.2d 638 (1949).

This record supports no finding that the trial judge abused his judicial discretion in weighing the evidence. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jonathan David ADAMS v. STATE.
    4 Div. 301.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.

      J. Earl Smith, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant was found guilty by a jury upon his being tried jointly with Roy Clayton Pooley on an indictment charging in pertinent part the following:

“Roy Clayton Pooley ... and Jonathan David Adams ... did possess an explosive, tool, instrument or other article, to-wit: Screwdriver, gloves, wire pliers and key cutters, which are adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forceful entry into premises or theft by a physical taking, with intent to use the same, in the commission of an offense involving forcible entry into premises or theft by a physical taking, in violation of 13-7-8 of the Code of Alabama, .... ”

The jury found Roy Clayton Pooley not guilty.

Alabama Criminal Code § 13A-7-8 provides:

“(a) A person commits the crime of possession of burglar’s tools, if he:
“(1) Possesses any explosive, tool, instrument or other article adapted, designed or commonly used for committing or facilitating the commission of an offense involving forceful entry into premises or theft by a physical taking; and
“(2) Intends to use the thing possessed in the commission of an offense of the nature described in sub-division (a)(1) of this section.
“(b) Possession of burglar’s tools is a Class C felony.”

According to § 13A-5-6(a)(3), a Class C felony is punishable by imprisonment for “not more than 10 years or less than 1 year and 1 day.” The court fixed appellant’s punishment at imprisonment for eight years and sentenced him accordingly.

By the first issue presented in the brief of counsel for appellant, he contends that a prima facie case was not presented by the evidence for the State and that for that reason the court was in error in denying defendant’s motion to exclude the evidence at the conclusion of the State’s case.

We are in accord with appellant’s argument to the effect that defendant’s motion to exclude should have been granted if at the time there was no substantial evidence of defendant’s guilt, which principle of law has been accepted uniformly by the appellate courts of Alabama since Gilbert v. State, 30 Ala.App. 214, 3 So.2d 95 (1941), which followed the correct principle set forth in Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1934), that the “scintilla rule” applicable in civil cases is not applicable in criminal cases and that, in the absence of substantial evidence of a defendant’s guilt after the prosecution has rested its case, the denial of a timely presented motion to exclude the evidence would constitute prejudicial error necessitating a reversal of a judgment of conviction. In the instant case, it should be noted that defendant took the stand after his motion to exclude was denied and robustly denied that he had an intent to use any of the things alleged to have been possessed by him “in the commission of an offense” involving forcible “entry into premises or theft by a physical taking,” which is a requisite of the crime of possession of burglar’s tools as defined by § 13A-7-8.

Each of the briefs of the attorneys for the respective parties on appeal contains a commendably clear summary of the evidence that we are pleased to utilize, but in doing so we limit our resume to the evidence sought to be excluded by defendant’s motion at the close of the evidence for the State, having in mind that the evidence presented thereafter would be irrelevant to the issue presented as to whether the issue now under consideration is well taken, which is correctly summarized in appellant’s brief as follows:

“... Officer Alton Miller testified that he, in response to a complaint went to the Fox Run Apartments on Honeysuckle Road and went to the back of the apartments to Emmanuel Christian School and saw two white males walking from Fox Run Apartments toward a vehicle parked in the parking lot ... and that when they walked past it about fifteen to twenty feet he stopped them. That he frisked them for weapons and found on Jonathan Adams a small Derringer, a screw driver, a pair of wire pliers, a pen flashlight, and a pair of brown leather type gloves. That he put the Appellant and Mr. Poo-ley in separate cars and looked through the window of the vehicle parked in the Emmanuel Christian School parking lot and could see in the back floorboard of the vehicle a portable key-making device with a red handle and a black book. On the dash was a door unlocking tool or a strip of metal used to unlock doors.”

In addition to what is shown by the appellant’s statement of facts as above quoted from his attorney’s brief, we now refer to the testimony of two witnesses who testified on call of the State before the State rested its case, both of whom were residents in separate apartments of the Fox Run Apartments at the time of the incident involved, which according to the undisputed evidence occurred after midnight of June 15-16, 1983. One of them, Keith Anthony, testified that he owned a 1981 Honda Accord automobile, which he had parked close to his apartment on the night of June 15, and that he locked his automobile before leaving it and going to his apartment. He testified:

“A. I was awakened at 2:00 o’clock in the morning by a patrolman.
“Q. Okay. And, did you go with the patrolman anywhere?
“A. He directed me out into the parking lot and asked me to identify my vehicle.
“Q. Did you do that?
“A. Yes, I did. I pointed to my car.”

He further testified:

“A. I found that the passenger door, the lock had been punched out. The interior of the car, just below the window, most cars have some type of upholstery there and my car had that upholstery and it was pulled down, torn or cut or whatever and torn down.
“Q. Right there where the lock area is but on the other side of the car?
“A. That is correct.
“Q. On the passenger’s side?
“A. On the passenger’s side. Yes, sir.
“Q. Was your car like that the night before when you secured it?
“A. Absolutely not.
“Q. What else, if anything, was different about your vehicle?
“A. There was a pocket knife laying in the front seat of the passenger’s side of the car that did not belong to myself or my wife.
“Q. Other than that, was that the extent of the difference of your car?
“A. Yes, sir.”

The other witness for the State testifying before the State rested its case was Parviz Golfeiz, who testified in important part as follows:

“Q. Back in June of this particular year, 1983, June 16 around 1:15, I want to ask you if you were a neighbor to Keith Anthony at that time?
“A. Yes.
“Q. Out at the apartment complex?
“A. Yes.
“Q. I want to ask you if you had an occasion to look outside and see anything please, sir?
“A. Yes, sir.
“Q. Would you speak up now so your voice will carry past the Jury and tell them what you saw?
“A. Well, I saw someone in Keith’s car. And, he was messing with the steering wheel and the inside of the car. And, I called the police. And, by the time the police got there, they ran back to their car. We went back to his car and drove off to the back of the apartment.
“Q. Okay. Let’s start up at the front. At the time that you looked, first looked out and saw someone inside Keith’s car, could you tell whether or not it was Keith?
“A. Yes.
“Q. Was it or wasn’t it?
“A. It was not.
“Q. Did you then call the police department immediately?
“A. Yes.
“Q. Did you continue to look outside as to what the person was doing?
“A. Yes.
“Q. Was it at that time that he was inside messing around inside the car?
“A. Yes.
“Q. Did you see the person get out of the car?
“A. Yes.
“Q. Where did the person go?
“A. Back to the car that was parked back there, about a few yards from the car.
“Q. Did he get in that particular car?
“A. Yes.”

Although the evidence for the State prior to its resting its case was woefully unclear and indefinite as to some particulars, we are able to determine with reasonable certainty from the evidence at the time of the motion of defendant to exclude the evidence that the person who was seen by Parviz Golfeiz in the automobile of Keith Anthony, as stated above, was either this appellant or his co-defendant Roy Clayton Pooley. In our opinion, the evidence thus considered constitutes substantial evidence that this appellant, either as the principal or as an aider or abettor, was guilty of the possession of burglar’s tools with the intent to use the tools in the commission of an offense involving forceful entry into premises or theft by a physical taking in violation of Alabama Criminal Code, § 13A-5-6(a)(3), as charged in the indictment.

The second issue presented by appellant is thus stated in his brief:

“THAT TESTIMONY OF THE POLICE OFFICER DESCRIBING THE DEFENDANT FROM A DESCRIPTION GIVEN TO HIM BY A THIRD PARTY WAS RANK HEARSAY AND ITS ADMISSION OVER OBJECTION IS REVERSIBLE ERROR.”

The issue is directed at the following part of what occurred during the direct examination by the State of Officer Alton Miller:

“Q. Okay. Would you describe that particular male that was walking around from the Fox Run Apartments?
“A. One of the subjects that was, that I had received a description was of a White male in his twenties.
“MR. CARTER [Defendant’s attorney]: Judge, I’m going to object to any description that he received.
“THE COURT: That is a part of the complaint, I overrule you. I mean that is not a violation of the hearsay evidence rule.
“THE WITNESS: And, the White male was supposedly wearing a black jacket.”

We agree with the ruling of the trial court. It is in accord with what was held in Cory v. State, Ala.Cr.App., 372 So.2d 394, 399 (1979):

“When an officer testifies to the details of a police dispatch overheard by him, merely to provide some explanation for his subsequent action in locating the accused, the details of the dispatch are admissible in evidence. The testimony of the details of the dispatch is not inadmissible as hearsay evidence when it is not offered to prove the truth of those details.”

By the third and final issue presented in appellant’s brief, he contends that the trial court committed reversible error in admitting “testimony that listed a hand gun as a burglar’s tool along with a screw driver, pliers, and a pen flashlight.” He expressly directs the contention to what occurred during a part of the direct examination by the State of Officer Alton Miller, as follows:

“Q. And, when you frisked the Defendant Adams, would you tell the Jury what, if anything, that you found in regard to tools?
“MR. WARD [Attorney for Defendant Pooley]: Objection, Your Honor.
“THE COURT: I overrule you.
“BY MR. BROWN:
“Q. You can answer the question.
“A. Officer Merrow frisked Adams first.
“Q. Okay. Will you tell the court what was found at that time?
“A. He found a small Derringer in Adams’ pants pocket.
“Q. All right. What else, please?
“A. After he found that, I searched Adams’ jacket.
“Q. All right. What if anything, did you find?
“A. Pound a screw driver, pair of wire pliers, pen flashlight and a pair of brown leather type gloves.”

The direct examination of Officer Miller as to what was found on the search of Adams continued for about half a page of the transcript without the interposition of any objection.

From the foregoing, it is to be seen that the only objection made to the inquiry made by the State as to what was found on defendant Adams upon his being “frisked” was not made by the attorney for defendant Adams but by the attorney for defendant Pooley. As no ground of the objection was stated, it seems that probably the trial court ruled that the attorney for defendant Pooley was seeking to preclude the evidence on the general ground that it was incompetent, irrelevant and immaterial as to defendant Pooley, and that the trial court ruled correctly that such evidence at such time was. admissible against defendant Pooley in view of the evidence at that time as to the apparent connection between the two. We are not convinced that the court would have been in error in overruling an objection of this appellant to the admission in evidence of the fact that a small Derringer was found in Adams’ pants pocket, but we are fully convinced that appellant-defendant Adams did not preserve for review his contention presented by his third and final issue on appeal.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.'

All the Judges concur.


text:
    Willie TOLES, Jr. v. STATE.
    4 Div. 345.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.

      Donald F. Colquett, Opp, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

In 1981, Willie Toles, Jr. was convicted of robbery and sentenced to twelve years’ imprisonment. The primary witness against him at trial was Charles Dewayne Skanes, an admitted accomplice. At trial and on appeal, Toles’s counsel argued the lack of evidence corroborating Skanes’s testimony. Toles’s conviction was affirmed by this court without opinion on October 6, 1981, 416 So.2d 1119.

In a companion case arising out of the same facts, Delacy Caldwell was also convicted of robbery based on the testimony of Charles Dewayne Skanes. On appeal, Caldwell’s attorney (the same attorney who represented Toles) argued the corroboration issue and won. Caldwell’s conviction was reversed and rendered in Caldwell v. State, 418 So.2d 168 (Ala.Cr.App.1981).

Toles now appeals from the denial of his petition for writ of error coram nobis demanding relief because the same evidence judicially determined to be insufficient corroboration of Skanes’s testimony in the Caldwell trial was presented at his own trial. Toles also claims his counsel was ineffective for failing to discover the existence of two purportedly contradictory written statements to Covington law enforcement officials by Skanes.

I

Briefly stated, the Skanes testimony at both the Caldwell and Toles trials was as follows: Skanes entered a store, the Western Station, in Florala, Alabama, at 8:30 p.m. on July 18, 1980, asked the clerk for two cartons of cigarettes and, as she left the counter to get the cigarettes from a storeroom, Toles and Caldwell walked up to the door and handed Skanes a tire tool. Skanes then assaulted the clerk with the tire tool, locked her in the storeroom and left. The clerk testified, however, that Skanes was the only person she saw or heard during the incident, so her testimony could not corroborate the evidence given by Skanes.

In both cases, the State relied on the testimony of Ms. Janet Evans Weeks for corroboration. Ms. Weeks was the clerk of another convenience store, the Zippy Mart, in the area. She testified that on the same night, in fact fifteen minutes before the assault at the Western Station, all three of the co-defendants (Skanes, Caldwell and Toles) were in her store. Skanes pulled into the parking lot first and, immediately behind his vehicle, Caldwell and Toles arrived. Skanes came into the Zippy Mart first, and then Toles and Caldwell ran across the parking lot and entered by another door. Caldwell and Toles paid for snacks and Skanes bought gas. At the Caldwell trial, Ms. Weeks stated that the three men “stood in the store for a few minutes and then they walked over to a Coca-Cola display that we had right in the middle of the floor and stood there for a couple of minutes. And they left.”

At the Toles trial, Ms. Weeks made the following statement: “[W]e have a Coca-Cola display right in the middle of the floor, and all three of them went to the end of this and discussed something and left.” At both trials, Ms. Weeks noted the fact that she was not alone in the Zippy Mart when the three men arrived. There was another customer, a truck driver, in the store at the time, the inference being that Ms. Weeks would have been robbed had the three co-defendants found her alone.

Writing for this court in Caldwell v. State, supra, Judge Bookout determined that Ms. Weeks’s testimony did not sufficiently connect the co-defendant Caldwell to the later robbery because “the three did not enter the store together, nor did Ms. Weeks proffer any testimony that they acted as a trio while inside the store talking or associating with each other.” 418 So.2d at 170.

In contrast to Ms. Weeks’s testimony at the Caldwell trial, we find that her statement in the Toles trial that the trio discussed something at the Coca-Cola display clearly points to the fact that the three were acting in concert. Furthermore, despite certain language in Caldwell v. State implying that even if the three had been acting together at the Zippy Mart, that fact would not have corroborated Skanes’s account of the Western Station robbery, it is our judgment that Skanes’s testimony was corroborated in the Toles trial.

“The corroborative evidence need not be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense.” Andrews v. State, 370 So.2d 320, 322 (Ala.Crim.App.), cert. denied, Ex parte Andrews, 370 So.2d 323 (Ala.1979). Circumstantial evidence may be used to connect the defendant with the criminal enterprise about which the accomplice has testified. Mathis v. State, 414 So.2d 151, 155 (Ala.Crim.App.1982). “Circumstantial evidence is said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts.” Mathis v. State, supra at 155 (quoting from Dolvin v. State, 391 So.2d 133, 137 (Ala.1980)).

Here, the inference that Toles was a participant in the Western Station robbery follows from the collateral fact that he and Caldwell ran across the parking lot to enter and “case” the Zippy Mart with Skanes and, not finding the clerk alone there, left to find a more advantageous target.

II

Toles also contends that, had his trial counsel moved for production of any written statements by Skanes, the attorney would have been able to cross-examine Skanes regarding the alleged discrepancies in the two confessions. The record clearly shows, however, that trial counsel was aware of Skanes’s contradictory accounts of the robbery; he simply did not know the statements had been reduced to writing. At Toles’s trial, defense counsel did attempt to impeach Skanes with the inconsistencies in his prior statements.

In any event, even if counsel had had the benefit of having Skanes’s written confessions before him at Toles’s trial, we do not believe the impeachment would have prevented Toles’s conviction. “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.” Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

The order of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Charles Wren GULLATT v. CITY OF HOOVER.
    6 Div. 521.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    James S. Lloyd of Lloyd, Ennis & Lloyd, Birmingham, for appellant.
    Ann Z. Arnold of Harrison & Jackson, Birmingham, for appellee.
   TYSON, Judge.

Charles Wren Gullatt appeals from a second conviction of DUI (driving under influence) in circuit court, contrary to the provisions of § 32-5A-191, Code of Alabama 1975 as amended. The trial court sentenced the appellant to two days in jail, fined him $500 plus court costs and directed that his license be suspended for one year.

A stipulation was entered between the parties for inclusion in the record and the same is herein set forth: (R. 15-16).

“STATEMENT OF PROCEEDINGS. Come now the parties, by and through their respective counsel of record, and in accordance with Rule 10(d) of the Alabama Rules of Appellate Procedure, offer unto the Court for settlement, approval and inclusion in its Record on Appeal the following agreed-upon statement of proceedings of which no report or record were heretofore made: (1) This cause came to be heard the week of April 30, 1984, in the Circuit Court of Jefferson County, Alabama, Criminal Division, before the Honorable Wayne Thorn, Judge. (2) Plaintiff, City of Hoover, presented unto the Court its duly served Complaint charging Defendant, Charles Wren Gullatt, with Driving Under the Influence. (3) Defendant plead not guilty as charged. (4) Plaintiff, by verified statement, showed unto the Court that the law or ordinance- under which Defendant was charged was in full force and effect as of the time of the alleged commission of the offense complained of. (5) Plaintiff offered, in stipulation form as agreed upon by the parties, the testimony of the arresting police officer, Tom French, which, in substance, established a prima facie case of Driving Under the Influence against the Defendant. (6) The Court found Defendant guilty of Driving Under the Influence, as charged. (7) Thereupon, Plaintiff offered, over Defendant’s objection, a certified copy of the Trial Docket as evidence of Defendant’s prior convictions on the charge of Driving While Intoxicated as adjudged on September 5, 1979, in the Municipal Court of the City of Birmingham, Alabama, a copy of said Trial Docket is attached hereto. Such offering by Plaintiff was in support of its request that the Court find Defendant to be a second-offender under the current DUI Statute and, consequently, that Defendant should receive the enhanced punishment as contemplated for such second-offenders. Defendant’s objection to the Court’s consideration of such prior conviction was on the grounds that Defendant was not represented by counsel nor did he knowingly and intelligently waive his right to counsel for the purposes of the September 5, 1979 conviction; therefore, Defendant contended that it was constitutionally impermissible to utilize said prior conviction for the purpose of imposing upon Defendant the enhanced punishment aforementioned. (8) Defendant’s objection notwithstanding, Defendant was adjudged a second-offender under the current DUI Statute and, accordingly, the Court imposed upon Defendant a fine of Five Hundred and No/100 ($500.00) Dollars, plus costs; ordered Defendant’s Driver’s License revoked for a period of one (1) year; and sentenced Defendant to two (2) days in jail. The Court specifically took notice of the Defendant’s aforesaid prior conviction of Driving While Intoxicated and, but for presence of same, would have imposed upon Defendant a fine of Two Hundred Fifty and No/100 ($250.00) Dollars, plus costs; ordered Defendant’s Driver’s License suspended for a period of ninety (90) days, and would have, in lieu of a jail sentence, required that Defendant complete an approved DUI Court Referral Program. (9) Defendant gave notice of appeal in open Court.”

I

Appellant asserts that the prior conviction had in Municipal Court on September 5, 1979, may not be constitutionally used to enhance punishment in this cause because the appellant was not represented by counsel nor did he knowingly and intelligently waive his right to counsel in that case.

In Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975), this court followed the opinion of the United States Supreme Court in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), which requires, that in using a prior conviction to enhance punishment, it must be established that the accused either waived counsel or was represented by counsel at the time of such prior offense. This requirement dealt with use of felony convictions to enhance punishment in subsequent proceedings.

However, such requirement has been extended to probation revocations involving a DWI conviction. Hollingsworth v. State, 410 So.2d 133 (Ala.Crim.App.1981), cert. quashed, 410 So.2d 134 (Ala.1982). Hollingsworth, supra, relies upon Burgett v. Texas, supra, and Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) and Highsmith v. State, supra.

The record in the case at bar is readily distinguishable from Baldasar, supra, and Hollingsworth, supra.

The minute entry of the 1979 conviction which was stipulated into evidence [see McDaniel v. State, 397 So.2d 237 (Ala.Crim.App.1981), cert. denied, 397 So.2d 239 (Ala.1981) and Kemp v. State, 434 So.2d 298 (Ala.Crim.App.1983) ], clearly establishes that appellant was offered counsel and waived counsel. This waiver affirmatively appears in the handwriting on the bench notes by Judge Peter A. Hall. The record in the case at bar is therefore not a silent record with respect to this appellant’s right to counsel at the 1979 conviction. Cf. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Moreover, the appellant did not receive a term of imprisonment at the time of the 1979 conviction in question. Lacey v. State, 450 So.2d 472 (Ala.Crim.App.1984).

Since the appellant’s objection in the case at bar is to an “uncounseled prior conviction”, this objection is not well taken. The record which was stipulated as being-correct (see McDaniel, supra, and Kemp, supra) other than appellant’s right to counsel, we must construe the record as showing a knowing and intelligent waiver of counsel in a constitutional sense.

This court has similarly held with respect to the use of prior convictions for enhancing punishment in Habitual Felony Offender proceedings that the proper forum for attacking the validity of such prior convictions would be by a separate petition for writ of error coram nobis filed in the court wherein the prior convictions took place. Jones v. State, 431 So.2d 1367 (Ala.Crim.App.1983). See also Ladd v. State, 431 So.2d 579 (Ala.Crim.App.1983).

Therefore, we hold that the trial court here properly considered the 1979 prior conviction of DUI as the record in the trial court clearly indicated a waiver of counsel at this conviction and such was proven through a certified minute entry which contained the trial judge’s bench notes. McDaniel, supra and Kemp, supra.

Had the appellant desired to attack or raise the question of whether or not there was a knowing and intelligent waiver of counsel, he should have filed a petition for writ of error coram nobis in the Municipal Court and raised the issue there.

II

Finally, the appellant asserts that the trial court sought to suspend appellant’s driver’s license for a period of time.

We have examined the record from the trial court and find this issue was not properly raised in the trial court and, therefore, is not properly before this court for review. See § 32-5A-191, Code of Alabama 1975 as amended.

For the reasons hereinabove stated, this cause is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Tommy Lee CHILDRESS v. CITY OF HUNTSVILLE.
    8 Div. 93.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.

      Phillip B. Price, Huntsville, for appellant.
    Charles S. Rodenhauser, Asst. City Atty., Huntsville, for appellee.
   HARRIS, Judge.

Appellant was charged by the City of Huntsville by formal complaint of driving under the influence of alcohol. Appellant was duly arraigned and pled not guilty. The case was tried before a jury and appellant was found guilty and sentenced to twenty (20) days’ imprisonment and fined five hundred dollars ($500).

On October 8, 1983, Officer William Cul-ver of the Huntsville Police Department was on patrol on Governors Drive in Huntsville, Alabama. He was traveling east when he observed a vehicle with only one headlight approaching from the opposite direction. This vehicle then proceeded south onto the Parkway access road, and Officer Culver followed in his vehicle. He then observed the vehicle weave back and forth within the left lane. Officer Culver stopped the vehicle near Leeman Ferry Road.

After both vehicles stopped, appellant exited his car, and in a staggering manner proceeded back toward Officer Culver. When asked to produce his driver’s license, appellant fumbled around momentarily, and finally produced the license. When asked how much alcohol he had consumed, appellant replied “a couple.” Officer Cul-ver described appellant as having very red eyes and slurred speech. In addition, Cul-ver smelled a strong odor of what seemed to be an alcoholic beverage on appellant’s breath.

Officer Culver administered a series of field sobriety tests, and, when appellant could not properly perform them, Officer Culver advised appellant that he was under arrest for driving under the influence. After placing appellant in the back of the patrol car, Culver inventoried appellant’s vehicle for impoundment. At that time, he observed a brown paper bag which contained a plastic bag with a green leafy substance inside. This material was then seized as evidence.

Officer Culver then transported appellant to the police department, and he was given a breathalyzer test. Officer John Reed of the Huntsville Police Department, who was properly trained and certified in the use of the Breathalyzer 1000 machine, then administered a breath test on appellant. The result of the test showed appellant’s blood alcohol content to be .19 percent.

On appeal, five issues are raised by appellant. First, appellant alleges that the trial court erred by allowing the introduction into evidence of a copy of the Rules of the State Board of Health regarding chemical tests for intoxication. Specifically, appellant contends that this copy should have been certified by the department head or under the seal of the circuit court of Montgomery County, pursuant to Ala.Code (1975), § 12-21-67.

An examination of the record reveals that the copy of these rules was certified by James T. Pons, agency secretary of the Department of Public Health, who further certified that these rules were kept in his office, under his control and custody.

For these chemical test results to be admissible, the prosecution must show that the test was performed (1) by an individual possessing a valid permit issued by the state board of health for this purpose, and (2) according to methods approved by the state board of health. Estes v. State, 358 So.2d 1050 (Ala.Cr.App.1977), cert. denied, 358 So.2d 1057 (Ala.1978). It is mandatory that these two requirements be met before the results of the chemical tests are admissible in a criminal case. Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. denied, 293 Ala. 768, 304 So.2d 248 (1974). While it is undisputed that the first requirement was met, appellant contends that the certification by the agency secretary was not proper. We cannot agree.

In Estes, supra at 1056, this court noted that the State proved that both the test and the operator were approved by the state board of health, and the introduction of a duly certified and authenticated copy of the methods and regulations adopted and approved by the state board of health governing performance of the test, was sufficient to validate the test results.

In Patton v. City of Decatur, 337 So.2d 321 (Ala.1976), there was no showing that the methods and regulations of the state board of health were followed in administering the test. The trial court had before it “no certified methods promulgated by the Board of Health for administration of the test and consequently was unable to ascertain standards against which the evidence could be measured.” Patton, at 324.

In both Elmore v. State, 348 So.2d 265 (Ala.Cr.App.1976), and Webb v. State, 378 So.2d 756 (Ala.Cr.App.), cert. denied, 378 So.2d 758 (Ala.1979), the failure to introduce any evidence of the proper methods and regulations governing the administration of these tests mandated the exclusion of the test results. In Commander v. State, 374 So.2d 910, 917 (Ala.Cr.App.1978), writ quashed, 374 So.2d 921 (Ala.1979), this court stated:

“However, there was no testimony or proof that the manner in which the test was conducted was performed according to methods approved by the state board of health. The fact that the test operator was an expert or was duly certified provides no basis for any presumption that the test was correctly performed.” (Emphasis in original.)

The document introduced into evidence clearly contained the written guidelines utilized by the state board of health regarding chemical tests for intoxication. In addition, under the Alabama Administrative Procedure Act, § 41-22-1, Code of Alabama 1975, it is apparent that the secretary at any State agency is the officer designated to be the keeper of all such rules and regulations. Ala.Code (1975), § 41-22-6 In the present situation, it is proper for. the agency secretary of the Department of Public Health to certify the rules for chemical tests for intoxication, and, therefore, the exhibit was properly authenticated.

Appellant next contends that the trial court erred in allowing the arresting officer to testify that a brown bag containing a green leafy substance was in appellant’s possession at the time he was arrested. It should be noted that the record indicates that the prosecution at no time during the trial suggested that this substance was marijuana or any other controlled substance.

On cross-examination of Officer Culver, defense counsel asked if appellant was charged only with driving under the influence of alcohol. Culver responded that appellant was also charged with possession of marijuana. On redirect examination, no mention was made of marijuana.

During direct examination of appellant by his own attorney the following occurred:

“Q Mr. Childress, there has been some testimony about a green leafy substance being found in your car?
“A Yes, sir.
“Q What was that substance?
“A Marijuana.
“Q How much marijuana was in there?
“A Just a very little bit.
“Q Had you had anything to smoke that night?
“A No, sir, I hadn’t.
“Q Have you plead guilty to possession of marijuana?
“A Yes, sir, I have.
“Q And were you sentenced?
“A Yes, sir.
“Q And you served your debt to society for that charge?
“A Yes, sir.
“Q And you admit that it was wrong?
“A Yes, sir.
“MR. PRICE: Nothing further.”

On cross-examination of appellant, the prosecution asked just one question concerning the marijuana:

“Q The officer also found some scales in your car, what were those scales used for?
“MR. PRICE: Objection, Judge, irrelevant to the issues in this case.
“THE COURT: Sustained.
“MR. PRICE: I withdraw the objection, he can answer it. You may answer it.
“A To weigh the marijuana for my own personal use.”

Again on redirect examination of appellant, defense counsel delved into the matters further:

“Q Now, this issue about scales being in your car, are you admitting to the jury that you have consumed marijuana for your personal use?
“A Yes, sir.
“Q And when you buy marijuana, do you weigh it?
“A To make sure you get the right pounds you weigh it, yes, sir.
“Q Do you still smoke marijuana?
“A No, sir.
“MR. PRICE: I have nothing further.”

While appellant alleges that the trial court should not have allowed testimony of a crime other than the crime for which appellant was being tried, we cannot agree with this contention.

The proper rule is that testimony, apparently illegal upon admission, may be rendered prejudicially innocuous, by subsequent legal testimony to the same effect or from which the same facts can be inferred. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974). A defendant cannot complain of the admission of improper evidence, where he himself testified to the same facts. Any error in admitting the original statement by Officer Culver, was cured when the same evidence was later elicited by the appellant and permitted to remain in the record without objection. Pitts v. State, 291 Ala. 136, 279 So.2d 119 (1973). Any error caused by the prior testimony was, therefore, rendered harmless by appellant’s subsequent testimony. Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.), cert. denied, 373 So.2d 1211 (Ala.1979).

Appellant next contends that the trial court erred by not giving the attorneys a charge conference prior to closing arguments. Appellant alleges that A.R.Crim.P. Temp. 14, requires the trial court to inform counsel, in advance of arguments to the jury, of its proposed action upon written requests for jury instructions.

The record indicates that defense counsel made no objection to the trial court’s failure to inform counsel of the proposed action, until after both closing arguments and the trial court’s oral charge. No request was made for a pre-charge conference, nor any attempt to glean how the trial judge would rule on the submitted charges.

Further, there has been no showing that the failure of the trial court to inform defense counsel had any detrimental effect on his closing argument. Prejudice must flow from the inadvertent failure to inform counsel in advance. Pruett v. Marshall, 283 F.2d 436 (5th Cir.1960). Appellant admits in his submitted brief that the trial court gave the requested charges to the jury. As a result, appellant’s contention is moot.

Appellant next seeks to attack the validity of the charging document, the contention being that it was not clear which crime appellant was convicted of by the jury verdict. This attack on the formal complaint brought by the City of Huntsville is being raised for the first time on appeal.

Objections based on defects in the commencement of proceedings or in the charge, other than lack of subject-matter jurisdiction or failure to charge an offense, may be raised only by pre-trial motion, A.R.Crim.P. Temp 16.2(a). Under these circumstances, we will not review the complaint. Stehl v. State, 283 Ala. 22, 214 So.2d 299 (1968).

Appellant’s final contention, that Alabama’s implied consent law § 32-5-192, Code of Alabama 1975, requires that an individual be arrested for an offense other than driving under the influence, is misguided and a clearly erroneous interpretation of the statute.

“(A) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor.” (Emphasis added.)

Ala.Code (1975), § 32-5-192.

While appellant may contend that the statute is not logical, it is apparent that appellant’s contention is illogical' If a defendant is arrested for the offense of driving under the influence of alcohol, there is no need that that defendant be arrested for any other offense.

An examination of appellant’s contentions and the record reveals no errors prejudicial to appellant’s substantial rights. This cause is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willie Lee WHITE v. STATE of Alabama.
    8 Div. 186.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Willie Lee White, pro se.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willie Lee White filed a Petition for Writ of Error Coram Nobis in the Morgan Circuit Court. The State filed a motion for summary judgment pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure and the trial judge, after allowing the petitioner to respond, granted the State’s motion. The petitioner now appeals the action of the trial court.

The petitioner has failed to file a brief, and, therefore, we are not required to review this appeal, since there are no issues raised before us. Rule 45B, A.R.A.P.

However, in his petition, the petitioner is basically challenging the legitimacy of his guilty plea.

I

The petitioner was indicted for capital murder. He pled guilty to the offense of murder and was sentenced to life imprisonment without parole pursuant to the habitual offender act. Included in the record is the petitioner’s “Ireland form”, 47 Ala.App. 65, 250 So.2d 602 (1972) and a transcript of the proceeding at which the petitioner pled guilty. It is clear from a review of this record that the petitioner pled guilty knowingly, intelligently and voluntarily, without coercion from anyone, and without any inducements whatever, in order to avoid the possibility of receiving a death sentence.

The allegations contained in the Petition for Writ of Error Coram Nobis are merit-less and, therefore, the trial judge did not err by granting the State’s motion for summary judgment.

For the reasons shown, this cause is due to be and is hereby affirmed. Stephens v. State, 420 So.2d 826 (Ala.Crim.App.1982).

AFFIRMED.

All the Judges concur.


author: PER CURIAM. ALDERMAN, Justice,

text:
    Oscar L. ANDREWS, Petitioner, v. STATE of Florida, Respondent.
    No. 64426.
    Supreme Court of Florida.
    Oct. 4, 1984.
    Rehearing Denied Jan. 3, 1985.
    Geoffrey C. Fleck and William R. Tunkey of Weiner, Robbins, Tunkey & Ross, Miami, for petitioner.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., Miami, for respondent.
    Carin Kahgan, South Miami, amicus curiae for American Civil Liberties Union.
    Benneth H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, amicus curiae.
   PER CURIAM.

Quashed on authority of State v. Neil, 457 So.2d 481 (Fla.1984), with directions to remand for a new trial.

It is so ordered.

overton, McDonald, ehrlich and SHAW, JJ., concur.

ALDERMAN, J., dissents with an opinion with which BOYD, C.J., and ADKINS, J., concur.

ALDERMAN, Justice,

dissenting.

I dissent for the same reasons stated in my dissent in State v. Neil, 457 So.2d 481 (Fla.1984).

BOYD, C.J., and ADKINS, J., concur.


author: ADKINS, Justice. BOYD, Chief Justice, McDONALD, Justice,

text:
    H. Lee MOFFITT, Etc., et al., Petitioners, v. Honorable Ben C. WILLIS, Etc., Respondent.
    No. 64882.
    Supreme Court of Florida.
    Oct. 18, 1984.
    Rehearing Denied Dec. 19, 1984.

      Mark Herron, Richard Hixson and Jerald S. Price, Tallahassee, for petitioners Fla. House of Representatives
    D. Stephen Kahn, Kahn & Dariotis, and Leonard Schulte, Tallahassee, for petitioners Fla. Senate.
    Parker D. Thomson and Cloyce L. Man-gas, Jr., Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, Robert P. Smith, Jr., Hopping, Boyd, Green & Sams, Tallahassee, and Richard J. Ovelmen, Gen. Counsel, The Miami Herald Pub. Co., Miami, for respondent.
    Parker D. Thomson and Cloyce L. Man-gas, Jr., Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, Robert P. Smith, Jr., Hopping, Boyd, Green & Sams, Tallahassee, and Richard J. Ovelmen, Gen. Counsel, Miami, for intervenor The Miami Herald Pub. Co.
    William G. Mateer, Mateer, Harbert, Frey, Bechtel & Phalin, Orlando, for inter-venor Sentinel Communications Co.
    George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, for interve-nor The Times Pub. Co.
   ADKINS, Justice.

We have before us an original proceeding on suggestion for a writ of prohibition which would quash an order of the circuit court judge wherein he determined the circuit court had the jurisdiction to rule on a complaint against the legislature. We have jurisdiction. Art. V, § 3(b)(7), Fla. Const.

In January 1982, the Miami Herald Publishing Company and twelve other newspaper publishing companies sued the petitioners, H. Lee Moffitt, as Speaker of the House of Representatives and Curtis Peterson, as President of the Senate, for declaratory judgment. The complaint filed in that action alleges that during May and June of 1981, secret meetings of committees of the legislature occurred in violation of legislative rules and the first and fourteenth amendments to the United States Constitution; article II, section 8, Florida Constitution; article III, Florida Constitution; section 11.142, Florida Statutes (1981); and section 286.011 and 286.012, Florida Statutes (1981).

Petitioners filed a motion to dismiss the complaint on the ground that the circuit court lacked jurisdiction over the subject matter under the constitutional doctrine of separation of powers because the complaint relates to the Florida Senate and the Florida House of Representatives. A hearing on the motion was held before the respondent, the Honorable Ben C. Willis. Judge Willis ordered that the newspaper publishing ■ companies were entitled to a ruling under chapter 86, Florida Statutes (1981), as to the allegations in the complaint relating to the first amendment to the United States Constitution and the corresponding provision of the Florida Constitution, article I, section 4, Florida Constitution, and also as to section 11.142, Florida Statutes (1981).

The petitioners are now seeking a writ of prohibition to have Judge Willis’ order quashed and to have the complaint dismissed. We have permitted the newspaper publishing companies to intervene in this cause.

We agree with the petitioners, grant their petition and direct-the dismissal of the civil action pending in the second judicial circuit which is the subject matter of this petition.

One of the issues we are faced with in this case is the jurisdiction of this Court to prohibit proceedings in the circuit court. The intervenors argue that should we determine that our jurisdiction to issue writs of prohibition is now coextensive with that of the district courts of appeal, in respect to circuit court proceedings, forum shopping in the appellate structure and even successive applications to this and other courts may be the result. We disagree.

Before its amendment in 1980, article V, section 3(b)(4), Florida Constitution, provided that this Court might “issue writs of prohibition to courts and commissions in causes within the jurisdiction of the supreme court to review.” The 1980 amendment transferred that provision to article V, section 3(b)(7) and eliminated the phrase “and commissions in causes within the jurisdiction of the supreme court to review.” This change in article V has been said to have caused some confusion as to whether this Court may issue a writ of prohibition to circuit courts. See England and Williams, Florida Appellate Reform One Year Later, 9 Fla.St.U.L.Rev. 221 (1981). We do not consider the change to have either expanded or contracted our jurisdiction to issue writs of prohibition to courts. The 1980 amendment of article V was presented to the public as necessary to narrow this Court’s jurisdiction in order to reduce our case load selectively. See, e.g., England, Hunter and Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147 (1980). We therefore do not consider it reasonable to interpret any changes to have been intended to expand our jurisdiction. However, it is not necessary for us to depend on an expanded version of article V in order to find that we have jurisdiction to issue a writ of prohibition in this instance.

In State ex rel. Sarasota County v. Boyer, 360 So.2d 388 (Fla.1978), we fully discussed our jurisdiction to issue writs of prohibition. We stated that, inasmuch as we cannot know with certainty whether we have appellate jurisdiction over the decision until it has been decided and that at that point we could not issue a preventive to undo what has been done, the answer is that it is only necessary to show that on the face of the matter it appears that a lower court is about to act in excess of its jurisdiction in a case which is likely to come within our jurisdiction to review. Id. at 392. Although that case involved the district court, the same rationale applies to our jurisdiction to issue the writ to a circuit court. In Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977), we found that this Court had jurisdiction to issue a writ of prohibition to a trial court in a case where the defendant had been indicted for first-degree murder. We could not know whether conviction would result in a sentence of death, but we knew the possibility of a death sentence was real since the crime charged was a capital offense. We have also on many occasions considered an original petition for writ of prohibition asking us to restrain a criminal court of record from proceeding to try a cause. In those instances, the issue presented was the defendant’s constitutional right to a speedy trial. See, e.g., Lowe v. Price, 437 So.2d 142 (Fla.1983); Pena v. Schultz, 245 So.2d 49 (Fla.1971); Loy v. Grayson, 99 So.2d 555 (Fla.1957).

We are now presented with a case in which the trial judge has issued an order) in response to a motion to dismiss, which states that the plaintiffs are entitled to a ruling as to the allegations relating to the first amendment of the United States Constitution and article I, section 4 of the Florida Constitution. The defendants, the petitioners here, argue that the trial court lacks jurisdiction because article II, section 3 of the Florida Constitution mandates separation of powers. It is clear to us that if this case were to proceed to trial and then to appeal at the district court, it is most likely that some provision of the state or federal constitution would be construed. The case would then come within our jurisdiction to review. In keeping with our holding in Sarasota County v. Boyer, we have jurisdiction to issue a writ of prohibition in this instance.

The fundamental argument raised by the petitioners is that the circuit court does not have jurisdiction to determine and declare the meaning and application of the rules and procedures of the Florida Senate and the Florida House of Representatives. Petitioners maintain that the authority of each house of the legislature, vis-a-vis article III, section 4(a) and article II, section 3 of the Florida Constitution, to determine its own internal procedure is at issue and that neither the constitutionality of any enacted statute, nor any policy commitment of the state of Florida, nor the balancing of compelling interests of the state are at issue. We agree with the petitioners’ contentions.

At the outset, we reassert that our duty in this cause is to determine whether the circuit court has the jurisdiction. We do not propose to address the merits of the case in the process.

In order to determine jurisdiction we must first identify the precise activity complained of in the suit below. The publishing companies allege that certain groups of individuals, which they identify as house and senate committees, held secret closed meetings during the 1981 legislative session. They do not complain of or challenge any specific act or law promulgated by the legislature. Rather, the complaint is that the house and senate violated their own rules of procedure. Rule 2.13 of the Rules of the Florida Senate provides in part that “all committee meetings shall be open to the public.” Rule 6.25 of the Rules of the Florida House of Representatives provides in part that “all meetings of all committees shall be open to the public at all times.” The publishing companies further assert that the legislature is required to conduct its business according to its rules pursuant to section 11.142, Florida Statutes (1981), which provides:

Each standing and select committee shall meet at such times as it shall determine and shall abide by the general rules and regulations adopted by its respective house to govern the conduct of meetings by such committee.

Several federal and state constitutional provisions are also assertedly being violated by the activity.

The petitioners have never conceded that the meetings complained of were secret legislative committee meetings. In our view, a judicial determination of this matter hinges on the meaning of legislative committee meeting and what activity constitutes such a meeting. At this point, the judiciary comes into head-to-head conflict with the legislative rulemaking prerogative.

Article III, section 4(a) of the Florida Constitution gives each house the power to determine its own rules of procedure. As historically interpreted by this Court, this provision gives each house the power and prerogative not only to adopt, but also to interpret, enforce, waive or suspend whatever procedures it deems necessary or desirable so long as constitutional requirements for the enacting of laws are not violated. See, e.g., State ex rel. X-Cel Stores, Inc. v. Lee, 122 Fla. 685, 166 So. 568 (1936); State ex rel. Landis v. Thompson, 120 Fla. 860, 163 So. 270 (1935) (wherein we stated that under the constitution the legislature determines and enforces the rules of its own proceedings). In Crawford v. Gilchrist, 64 Fla. 41, 54-55, 59 So. 963, 968 (1912), we said that:

The provision that each house “shall determine the rules of its proceedings,” does not restrict the power given to the mere formulation of standing rules, or to the proceedings of the body in ordinary legislative matters; but, in the absence of constitutional restraints, and when exercised by a majority of a constitutional quorum, such authority extends to the determination of the propriety and effect of any action as it is taken by the body as it proceeds in the exercise of any power, in the transaction of any business, or in the performance of any duty conferred upon it by the constitution.

It is the final product of the legislature that is subject to review by the courts, not the internal procedures. As we stated in General Motors Acceptance Corp. v. State, 152 Fla. 297, 303, 11 So.2d 482, 485 (1943), the legislature has the power to enact measures, while the judiciary is restricted to the construction or interpretation thereof.

Section 11.142 of the Florida Statutes provides that the committees shall abide by the house and senate rules. While the judiciary certainly has the power to determine what effect a statute has and to whom it applies as well as its constitutionality, that is not the issue before us today. We are not confronted with whether a statute applies, rather we are asked to allow the courts to determine when and how legislative rules apply to members of the legislature. The constitutionality of the rules themselves is not challenged here. The only issue argued is that of the propriety and constitutionality of certain internal activities of members of the legislature. It is a legislative prerogative to make, interpret and enforce its own procedural rules and the judiciary cannot compel the legislature to exercise a purely legislative prerogative. See Dade County Classroom Teachers Association v. Legislature, 269 So.2d 684, 686 (Fla.1972).

The intervenors rely on several cases to support the circuit court’s jurisdiction. We find their reliance to be misplaced inasmuch as each of the cases cited involves an activity by the legislative branch which reaches out to effect some action or result outside of the legislature itself and therefore beyond their internal procedures. Forbes v. Earle, 298 So.2d 1 (Fla.1974) (the court did not lack the subject matter jurisdiction to determine the extent of a committee’s power to issue a subpoena binding on the Judicial Qualifications Commission); Johnson v. McDonald, 269 So.2d 682 (Fla.1972) (court had jurisdiction to declare the power of a sub-committee to issue a subpoena duces tecum); Hagaman v. Andrews, 232 So.2d 1 (Fla.1970) (court determined the power of a committee chairman to subpoena bank records); Johnston v. Gallen, 217 So.2d 319 (Fla.1969) (court had jurisdiction to determine the power of the speaker of the house to create a select committee, having investigatory powers, between sessions).

Just as the legislature may not invade our province of procedural rulemaking for the court system, we may not invade the legislature’s province of internal procedural rulemaking. See, e.g., State v. Garcia, 229 So.2d 236 (Fla.1969); State v. Robinson, 132 So.2d 156 (Fla.1961); Hay v. Isetts, 98 Fla. 1026, 125 So. 237 (1929). A member of the legislature can raise a point of order regarding a violation of any of the rules of the house or senate. That is the proper forum for determining the propriety of the activities complained of in the suit below.

Therefore, we find that the circuit court lacks jurisdiction to proceed in this matter. We withhold issuance of a writ of prohibition with the confidence that the respondent will comply with the dictates of this opinion.

It is so ordered.

ALDERMAN, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., concurs in part and dissents in part with an opinion.

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

BOYD, Chief Justice,

concurring in part and dissenting in part.

I concur in the reasoning of the majority opinion to the extent it holds that the courts should not entertain challenges to the interpretation given by the Senate and House of Representatives to their own rules.

In this case it is alleged that the procedures used with regard to certain committee meetings were not in compliance with a state statute requiring the legislative bodies to abide by their rules. Although courts have no authority to enforce legislative procedural rules, the allegation of violation of a statute of Florida presents a question cognizable in the courts.

McDONALD, Justice,

concurring in part, dissenting in part.

I agree that this Court has the power to issue the writ of prohibition if we determine that the trial court is without jurisdiction to decide the issues presented, but I feel that the trial judge has jurisdiction to issue a declaratory judgment. The trial judge, in denying the motion to dismiss, held:

1. The Court is of the opinion that the Plaintiffs are entitled to a ruling under Chaper [sic] 86, Florida Statutes, as to the allegations of the complaint relating to the First Amendment to the United States Constitution, and the corresponding provisions of the Florida Constitution, and also as to § 11.142, Florida Statutes. Accordingly, the Defendants’ Motion to Dismiss as to these issues is hereby DENIED.
2. As indicated at hearing, the . Court is of the opinion that the remaining provisions of law cited by Plaintiffs are not applicable under the circumstances alleged in the complaint.

This seems correct to me and I fail to find an impediment to the trial judge’s answering the question of whether the public may be excluded from committee meetings of the. House and Senate of the Florida State Legislature so long as the answer is restricted to constitutional or statutory grounds, as opposed to whether the rules of the House or Senate are violated. I therefore dissent, in part.

BOYD, C.J., and OVERTON, J., concur.


author: McDonald, justice

text:
    THE FLORIDA BAR RE: STANDARD JURY INSTRUCTIONS—CIVIL (PROFESSIONAL MALPRACTICE).
    No. 64976.
    Supreme Court of Florida.
    Nov. 1, 1984.
    Robert P. Smith, Chairman, Committee on Standard Jury Instructions, Tallahassee, for petitioner.
   McDonald, justice

The Supreme Court Committee on Standard Jury Instructions (Civil) has submitted to this Court the following recommendations or changes: a new 4.2, Professional malpractice instruction; an amendment to 5.3, Legal cause (treatment without informed consent); and a division of existing 3.3b, Agency. It also seeks to add a commentary to 3.8, Contributory negligence.

We approve for publication these recommended additions and changes, which follow this opinion. We caution all interested persons, however, that the comments reflect only the opinion of the committee and are not necessarily indicative of the views of this Court as to their correctness or applicability.

It is so ordered.

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

Add the following new 4.2:

4.2

PROFESSIONAL NEGLIGENCE

a. Negligence (physician or hospital malpractice):

Negligence is the failure to use reasonable care. Reasonable care on the part of a [physician] [hospital] is the use of that knowledge, skill and care which is generally used in similar cases and circumstances by [physicians] [hospitals] in communities having similar medical standards and available facilities.

Comments on f2a
1. The committee recommends that no charge be given to the effect that “a physician is not to be held liable for an honest error in judgment” and that “it must be shown that the course he pursued was clearly against the course recognized as correct by his profession.” See Hickman v. Employers’ Fire Insurance Company, 311 So.2d 778, 779 (Fla. 4th DCA 1975). The charge is confusing, difficult of application and argumentative.
2. A higher standard of care may be applicable to a defendant physician possessing extraordinary knowledge and skill. See Prosser, Torts (4th ed.), § 32 at p. 161, and cases there cited.
3. In 1984 the committee considered whether section 768.45(2), Florida Statutes (1983), required changes to this charge as drafted prior to enactment of that statute, chapter 76-260, Laws of Florida, and determined that no revisions were required.
4. In giving 4.2a attention should be given to section 768.45(3), which contains a causation standard. The committee expresses no opinion on whether that causation standard is different from that already expressed in 5.1.

b. Negligence (treatment without informed consent):

Negligence is the failure to use reasonable care. Reasonable care on the part of a [physician] fname other health care provider specified in § 768.46(3)) ] in obtaining the [consent] [informed consent] to treatment of a patient consists of

when issue is whether consent was obtained irregularly

obtaining the consent of the [patient] [or one whose consent is as effective as the patient’s own consent, such as (describe) ], at a time and in a manner in accordance with an accepted standard of medical practice among members of the profession with similar training and experience in the same or a similar medical community.

when issue is whether sufficient information was given

providing the patient [or one whose informed consent is as effective as the patient’s informed consent, such as (describe) 1 information sufficient to give a reasonable person a general understanding of the proposed treatment or procedure, of any medically acceptable alternative treatments or procedures, and of the substantial risks and hazards inherent in the proposed treatment or procedure which are recognized by other [physicians] [(name other health care providers)] in the same or a similar community who perform similar treatments or procedures.

NOTE ON USE OF 4.2b
Use in conjunction with 5.3 on legal cause, which expresses the causation standard of section 768.46, Florida Statutes (1983).
Comment on 4.2b
This charge is derived from the provisions of section 768.46(3), Florida Statutes (1983).

c. Negligence of lawyer, architect, other professional:

Negligence is the failure to use reasonable care. Reasonable care on the part of a [lawyer] [architect] [name other professional) ] is that degree of care which a reasonably careful [lawyer] [architect] [(name other professional) ] would use under like circumstances. Negligence may consist either in doing something that a reasonably careful [lawyer] [architect] [(name other professional)] would not do under like circumstances or in failing to do something that a reasonably careful [lawyer] [architect] [(name other professional) ] would do under like circumstances.

Comment on 4-%c
This charge is a general one to be used when it has been determined as a matter of substantive law that a nonmedical professional can be held liable for negligence. 5 Cf First American Title Insurance Co. v. First Title Service Co., 457 So.2d 467 (Fla.1984) (liability of title ab-stracters runs only to known third party plaintiffs who may rely on opinion).

Substitute the following for present 5.3 (italicized word added):

5.3
LEGAL CAUSE (TREATMENT WITHOUT INFORMED CONSENT)
Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the negligence, the [loss] [injury] [or] [damage] would not have occurred. The negligent failure to obtain [informed] consent to a medical treatment or procedure is a legal cause of injury resulting from the treatment or procedure if, as a result of such negligence, the patient was induced to undergo a medical treatment or procedure to which the patient would not reasonably have consented had he been adequately informed.
NOTE ON USE
5.3 is to be used in conjunction with 4.2c, defining Negligence (treatment without informed consent). 5.3 was amended in 1983 only to add “reasonably” in the last line. See § 768.-46(3)(a)2, Fla.Stat. (1983).

Substitute the following for existing 3.3b:

b(l). Agency, master and servant (independent contractor distinguished):
whether (name) was an agent of (defendant) and was acting within the scope of his employment at the time and place of the incident complained of. [An agent is a person who is employed to act for another, and whose actions are controlled by his employer or are subject to this employer’s right of control.] An employer is responsible for the negligence of his agent if such negligence occurs while the agent is performing services which he was employed to perform or while the agent is acting at least in part because of a desire to serve his employer and is doing something that is reasonably incidental to his employment or something the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.
[But a person is not responsible for the negligence of an independent contractor or of the agents or employees of an independent contractor. An independent contractor is a person who is engaged by another to perform specific work according to his own methods and whose methods of performing the work are not controlled by the person engaging him and are not subject to that person’s right of control.]
Comment on 3.3b(l)
For purposes of defining liability for negligence, there is no reason to distinguish between the relationship of principal and agent and the relationship of master and servant. See Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947).
b(2). Apparent agency:
whether (name) was an apparent agent of (defendant) and was acting within the scope of his apparent authority at the time and place of the incident complained of. [An agent is a person who is employed to act for another, and whose actions are controlled by his employer or are subject to his employer’s right of control.] (Name) was an apparent agent if (defendant) by his words or conduct caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant) and if (claimant) justifiably relied upon that belief in dealing with (name) as the agent of (defendant). A person is responsible for the negligence of his apparent agent occurring while the apparent agent is acting within the scope of his apparent authority.
NOTE ON USE OF 3.3b(l) and (2)
If the court determines that issues on both actual agency and apparent agency should be submitted to the jury, give both 3.3b(l) and (2), omitting the bracketed language in b(2). When 3.3b(2) is used alone, give the bracketed language.
Comment on 3.8
While failure of the user to discover a product defect or to guard against the possibility of its existence is not a defense to a strict products liability action, West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), such conduct may constitute a defense in a negligence action.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Virlyn B. WILLIS, Jr., Respondent.
    No. 64778.
    Supreme Court of Florida.
    Nov. 8, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, and Mary Ellen Bateman and Susan V. Bloe-mendaal, Bar Counsels, Tallahassee, for complainant.
    Virlyn B. Willis, Jr., in pro. per.
   PER CURIAM.

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

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

1. As to Count I:
Respondent represented Mr. Robert Few in connection with a criminal offense in Hamilton County in early 1980. In March of 1980, Mr. Few pleaded guilty to criminal charges and was sentenced to five years probation with the condition he pay a $5,000.00 fine on or before May 28, 1980. Shortly thereafter, Few’s counsel in Chattanooga, Tennessee, sent Respondent a $5,000.00 check to pay the fine, and the $5,000.00 check was deposited into Respondent’s trust account.
On April 25, 1980, a check was drawn on Respondent’s trust account in the amount of $1,000.00 payable to cash. The check was identified on the check stub as “transfer Few money to office.” On May 13, 1980, a second withdrawal of the Few funds from the trust account was made in the amount of $2,500.00, payable to cash. On May 23, 1980, a third withdrawal of the Few funds from the trust account was made in the amount of $1,300.00 made payable to cash. At the time the third withdrawal was made there was only $1,225.74 on deposit at the bank, and the check was accordingly stamped “insufficient funds.” On May 28, 1980, the $1,300.00 check cleared the bank.
In December of 1981, violation of probation proceedings were initiated against Mr. Few as the $5,000.00 fine had not yet been paid by Respondent. An order to appear was issued on Mr. Few for February 16, 1982. Mr. Few’s $5,000.00 fine was ultimately paid by Respondent by a check drawn on his trust account and dated February 16, 1982. On February 19, 1982, the check was stamped “insufficient funds” as the trust account had only $2,159.40 on deposit on the day it was presented. On February 1, 1982, the date appearing on the check, only $432.40 was on deposit in the trust account. The $5,000.00 check representing the fine was eventually paid after two separate deposits of $2,000.00 and $3,500.00 were made by the Respondent to his trust account to cover the draft.

2. As to Count II:

On or about June 11, 1981, Mr. Mack C. Hale, a client of Respondent’s, gave to Respondent $426.00 to be disbursed by the Respondent in the following manner: $30.00 to the Clerk of Court for cost of supervision; $175.73 for restitution; and $40.00 to the State of Florida for monthly supervision fees and $279.97 for restitution. Subsequently, Mr. Hale was informed by the Probation and Parole Services of Escambia County that a warrant for Violation of Probation had been issued against Mr. Hale for nonpayment of the required costs and restitution. On October 1, 1982, after Mr. Hale filed a grievance with The Florida Bar against Respondent, the funds were paid out by Respondent to the appropriate parties.

3. As to Count III:

From December 1979 through December 1982, Respondent did not maintain trust account ledger cards, make monthly reconciliations of his trust account, or maintain complete records of deposits to his trust account. During that same time period, Respondent had five checks drawn on his trust account stamped “insufficient funds” although none of them were returned by the bank unpaid.

The referee made the following recommendations as to guilt:

1.As to Count I:
I recommend that the Respondent be found guilty and specifically, that he be found guilty of the following Disciplinary Rules of the Code of Professional Responsibility, and Integration Rules of The Florida Bar, to wit:
Article XI, Rule 11.02(4) of the Integration Rule of The Florida Bar (applying money entrusted to him by a client to a purpose other than the one intended).
Florida Code of Professional Responsibility, Disciplinary Rule 9-102(A) (commingling funds).

2. As to Count II:

I recommend that the Respondent be found guilty and specifically, that he be found guilty of the following Disciplinary Rules of the Code of Professional Responsibility, and Integration Rules of The Florida Bar, to wit:
Florida Code of Professional Responsibility, Disciplinary Rule 6-101(A)(3) (neglect of a legal matter entrusted to him).

3. As to Count III:

I recommend that the Respondent be found guilty and specifically, that he be found guilty of the following Disciplinary Rules of the Code of Professional Responsibility, and Integration Rules of The Florida Bar, to wit:
Article XI, Rule 11.02(4) and its Bylaw under the Integration Rule of The Florida Bar (failure to comply with minimum trust accounting records and procedures).

The referee recommends that Respondent be suspended from the practice of law for three (3) years and thereafter until proof of rehabilitation and that the conditions precedent to Respondent’s petitioning for reinstatement be as follows:

1. That Respondent submit to examination by a psychiatrist designated by The Florida Bar, and that Respondent be certified by such psychiatrist to be free from psychiatric problems which would substantially impair his ability to practice law;

2. That Respondent attain a passing score on the Multistate Professional Responsibility Examination; and

3. That Respondent pay in full all costs of disciplinary proceedings and repay any claims paid by The Florida Bar Client Security Fund.

The referee further recommends that upon reinstatement, Respondent be placed on probation for a period of not less than two (2) years, with the following terms and conditions:

1. That Respondent submit quarterly reports to The Florida Bar from a psychiatrist certifying Respondent to be free from psychiatric problems which would impair his ability to practice law; and

2. That a failure by Respondent to comply with the terms and conditions of his probation shall terminate the probation as provided in article XI, Rule 11.10(1) of the Integration Rule of The Florida Bar.

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

Accordingly, respondent, Virlyn B. Willis, Jr., is hereby suspended from the practice of law in the State of Florida effective December 10, 1984, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent shall accept no new business.

Costs in the amount of $1,124.25 are hereby taxed against Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Michael A. PELLE, Respondent.
    Nos. 62656, 63498 and 63760.
    Supreme Court of Florida.
    Nov. 21, 1984.
    John F. Harkness, Jr., Executive Director, and John T. Berry, Staff Counsel, Tallahassee, and Patricia S. Etkin and Richard B. Liss, Bar Counsels, Fort Lauderdale, for complainant.
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for respondent.
   PER CURIAM.

Upon complaints by The Florida Bar this Court appointed a referee to conduct a hearing regarding Pelle’s alleged misconduct. Pelle tendered an Offer to Plead Guilty and For a Penalty of Disbarment thereby admitting all the matters alleged in The Florida Bar’s complaints. With respect to each of the cases the referee made the following findings of fact:

Findings as to Supreme Court Case No. 62,656:
1. The Respondent was retained by a widow to probate her deceased husband's will and subsequently failed to advise her that he had obtained possession of securities owned solely by her; obtained an authorization through misrepresentation which enabled him to buy, sell, or trade said securities; directed the sale of said securities without the knowledge or consent of the owner thereof; obtained the proceeds of the sale of said securities by forging an endorsement to certain checks; and misrepresented that said securities would be returned while knowing they had already been sold.
Findings as to Supreme Court Case No. 63,498:
2. The Respondent represented a corporation in its purchase of real estate during which he became designated escrow agent for a certain sum of money provided by his client. He disbursed funds from escrow without the authorization of the seller, thereby failing to protect funds entrusted to him in his capacity as escrow agent.
Findings as to Supreme Court Case No. 63,760:
3. The Respondent misrepresented his client’s willingness to accept payments in settlement of a business dispute and then converted said payments to his own use.
4. The Respondent failed to comply with a Witness Subpoena Duces Tecum issued by the Chairman of Grievance Committee “C” of the Seventeenth Judicial Circuit.
5.The Respondent violated the order entered by the Supreme Court of Florida on March 17, 1982, whereby Respondent was suspended from the practice of law until further notice of the Court, relative to trust funds and provided false information to The Florida Bar concerning the receipt of trust funds.

The referee recommended that Pelle be found guilty of numerous violations of the Integration Rule and various disciplinary rules. The referee recommended that respondent’s guilty plea be accepted and that he be disbarred with readmission to The Florida Bar conditioned upon full compliance with the rules and regulations governing admission to the Bar. See Fla. Bar Integr. R., art. XI, Rule 11.10(5). Neither side contests the referee’s report which we hereby adopt. Respondent, Michael A. Pelle, is hereby disbarred from the practice of law, effective immediately. We also assess against Pelle the costs of these proceedings in the amount of $2,256.36.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Alan B. OPPENHEIMER, Respondent.
    Nos. 64277, 65258.
    Supreme Court of Florida.
    Nov. 21, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Lance R. Stelzer, Louis Thaler and Patricia S. Etkin, Bar Counsels, Miami, for complainant.
    Stephen J. Golembe, Miami, for respondent.
   PER CURIAM.

This is a consolidated attorney disciplinary proceeding against Alan B. Oppenheimer in which the referee’s report is not contested. We have jurisdiction. Art. V, § 15, Fla. Const.

Respondent submitted unconditional guilty pleas to the eleven counts against him. The referee found respondent guilty of thirty-seven violations of the Disciplinary Rules of The Florida Bar Code of Professional Responsibility and three violations of the Integration Rule of The Florida Bar. Noting that respondent had previously received a private reprimand and was under suspension for non-payment of bar dues, the referee recommended that respondent be disbarred without leave to reapply for three years.

We adopt the referee’s findings "and hold that the cumulative nature of respondent’s misconduct and his prior disciplinary history justify the recommended discipline.

Accordingly, respondent is hereby disbarred from the practice of law in the state of Florida without leave to reapply for three years, effective immediately.

Respondent shall pay the costs of these proceedings in the amount of $2,828.70.

It is so ordered.

OVERTON, Acting C.J., and ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.


author: ALDERMAN, Justice.

text:
    Connie Faye LINCOLN, Petitioner, v. STATE of Florida, Respondent.
    No. 64816.
    Supreme Court of Florida.
    Nov. 21, 1984.
    James B. Gibson, Public Defender and Larry B. Henderson, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen. and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.
   ALDERMAN, Justice.

We review the decision of the District Court of Appeal, Fifth District, in Lincoln v. State, 444 So.2d 27 (Fla. 5th DCA 1983), which the district court has certified to be in express and direct conflict with A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982), and Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982), revi ew denied, 426 So.2d 26 (Fla.1983). The district court held that the driving of a getaway car in an elusive manner in an attempt to avoid the police created a prima facie case from which the finder of fact at trial could properly infer complicity to commit the crime. We agree that, under the particular facts of the case before us, a prima facie case was made, and we approve the district court’s affirmance of defendant’s conviction of robbery.

Defendant drove her husband to a drugstore and waited for him in the automobile outside the drugstore while he went in and robbed the store at gunpoint. She then drove him from the scene of the robbery. They were pursued by law enforcement officers in a high-speed chase for four miles before she stopped the automobile. She was charged and convicted of robbery.

Defendant appealed to the district court and argued that the evidence was not sufficient to sustain the robbery conviction. The district court acknowledged that several Florida cases have held that merely driving the perpetrator to and from the scene of the offense, absent any other incriminating involvement, is insufficient circumstantial evidence of the requisite intent to participate in the offense itself. It determined that the issue to be addressed in the present case was whether the added element of flight and police pursuit of the vehicle supplies the evidentiary basis for a finding of criminal intent. The Fifth District affirmed the conviction and held that the driving of a getaway car in an elusive manner in an attempt to avoid the police creates a prima facie case from which the finder of fact at trial may properly infer complicity in intent to commit the crime. Judge Dauksch, concurring specially, explained that the evidence of robbery in the present case is much stronger here than in A.Y.G. or Gains and that those cases are based on their distinct factual bases. Here, he points out, defendant knew in advance that her husband was intending to commit a robbery.

The present case is not factually on all fours with A.Y.G. and Gains because in those cases there was no evidence that defendants who drove the getaway cars knew of the crimes until after they occurred. In Gains, the First District concluded that the mere fact that Gains fled the scene after the crime does not exclude the reasonable inference that he had no knowledge of the crime until it actually occurred and thus did not intend to assist in its commission. In A.Y.G., the Third District held that the evidence that the defendant was present at the scene of the crime and drove the getaway car at the request of the perpetrator of the burglary does not exclude the reasonable inference that the defendant did not have knowledge of the crime until after it occurred.

In the present case, the evidence is stronger than in Gains and A. Y. G. Here, there is evidence from which the finder of fact could conclude that defendant knew that her husband was going to commit a robbery when she drove him to the drugstore.

Defendant argues that the only proof of her guilt in this case is circumstantial and that her conviction cannot be sustained because the evidence is not inconsistent with any reasonable hypothesis of innocence. The state responds that it is not required to disprove every possible hypothesis of innocence and that, in the present case, the jury rejected as unreasonable defendant’s hypothesis of innocence.

Discussing the sufficiency of circumstantial evidence, in State v. Allen, 335 So.2d 823, 826 (Fla.1976), we said:

We are well aware that varying, interpretations of circumstantial evidence are always possible in a ease which involves no eye witnesses. Circumstantial evidence, by its very nature, is not free from alternate interpretations. The state is not obligated to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant. Were those requirements placed on the state for these purposes, circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.

Most recently in Heiney v. State, 447 So.2d 210 (Fla.1984), we held that in a circumstantial evidence case “[t]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse a judgment based upon a verdict returned by the jury.” 447 So.2d at 212. See also Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).

The evidence in the present case is legally sufficient to convict the defendant of robbery.

Accordingly, the result of the decision of the district court to affirm defendant’s conviction is approved. We, however, disapprove the district court’s conclusion that driving a getaway ear in an elusive manner in an attempt to avoid the police with nothing more creates a prima facie case from which the finder of fact at trial may properly infer complicity in intent to commit the crime.

It is so ordered.

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