author: BOWEN, Presiding Judge.

text:
    David WAKEFIELD v. STATE.
    6 Div. 198.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-308.
    See also, Ala., 447 So.2d 1334.
    Arthur Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

David Wakefield, the appellant, was indicted for the capital offense involving the robbery and intentional killing of Woodrow Kelley in violation of Alabama Code Section 13A-5-40(a)(2). A jury found him guilty of the lesser included offense of manslaughter. Sentence was set at ten years’ imprisonment. Ex parte Wakefield, 447 So.2d 1325 (Ala.Cr.App.1983).

Wakefield argues that the trial court erred in refusing his written requested instructions on criminally negligent homicide, accident, and self-defense. In response, the Attorney General argues that the objection in the trial court was insufficient to preserve this issue on appeal. The State further contends that even had proper objection been made there was no evidence to support a conviction for criminally negligent homicide and that the charges on accident and self-defense are deficient charges.

I

At trial, defense counsel announced satisfied with the judge’s oral charge and objected to the refused charges.

“MR. PARKER (Defense Counsel): If the Court please, we object to refusing charge 1A, because it’s a correct statement of the law and we feel like there was a rational basis for the Court to be charged on criminal negligent homicide. Refuse the charge of IB, we object to that on the grounds that the Alabama Law provides that where specific intent is necessary to establish an element of the offense, then even voluntary intoxication is a defense. And the refusal of 3, 2,1, 1C, ID, IE, 5, 6, 4, 7, 9, 8, and 10 are all correct statements of the law. It is prejudicial to the defendant not to give those charges and it is necessary that they be given for the Court—jury to have a complete understanding of the law.”

This objection does not preserve for review the judge’s failure to charge on self-defense and accident. “No party may assign as error the court’s ... failing to give a written instruction, ... unless he objects thereto ... stating the matter to which he objects and the grounds of his objection.” A.R.Crim.P.Temp. 14; Ex parte Allen, 414 So.2d 993 (Ala. 1982). The objection of defense counsel was simply too general to preserve any error with regard to the judge’s failure to charge on accident and self-defense.

II

Defense counsel’s objection was adequate to preserve for review the refusal of the requested charge on criminally negligent homicide. However, the facts of this case do not provide a rational basis for a verdict convicting Wakefield of that offense.

At trial, Wakefield’s defense was that Kelley’s pistol accidentally discharged while he was attempting to take the weapon away from Kelley, who had threatened to shoot him. The single discharge wounded Wakefield in the arm and Kelley in the thigh. These actions simply do not warrant an instruction on criminally negligent homicide.

This Court examined the crime of criminally negligent homicide in Phelps v. State, 435 So.2d 158, 164-65 (Ala.Cr.App.1983). That offense involves inadvertent risk creation coupled with the actor’s failure to perceive which “constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” Alabama Code Section 13A-2-2(4) (1975); Model Penal Code Section 210.4 (1980).

Here, no reasonable interpretation of the facts allows or authorizes the inference that Wakefield was not aware of the risk he created. There was simply no negligence involved. If Wakefield apprehended danger to himself, he had the right to take the pistol from Kelley. We fail to find in his conduct any evidence of negligence. Blalock v. State, 40 Tex.Cr.R. 154, 49 S.W. 100 (1899).

“(W)e understand deceased was endeavoring to take the pistol away from appellant, or was trying to prevent appellant from shooting him with the pistol. If either fact be true, then the issue of negligent homicide is not the case; that is, if appellant was attempting to shoot deceased, it could not be negligent homicide; if he was not attempting to shoot deceased, and the pistol was accidentally discharged, it would simply be an accident.” Williams v. State, 45 Tex.Cr.R. 218, 75 S.W. 859, 862 (1903).

See also F. Wharton, The Law of Homicide, p. 698 (3rd ed. 1907) (“Nor is a person guilty of negligent homicide in the performance of an unlawful act, who accidentally kills a person in an attempt to dispossess him of a deadly weapon, where he has reason to apprehend danger from such person’s use of it.”). For these reasons, the trial judge properly refused the requested charge on criminal negligence.

Ill

Although in most scuffling over gun cases, the jury should be charged on the law of accident, State v. Randolph, 496 S.W.2d 257 (Mo.1973); State v. Ameen, 463 S.W.2d 843 (Mo.1971), Wakefield’s requested charges involving accident were properly refused because they failed to define the meaning of the word “accidentally”. Jackson v. State, 265 Ala. 690, 691, 93 So.2d 808 (1957); Trenor v. State, 354 So.2d 1180, 1184 (Ala.Cr.App.1977), cert. denied, Ex parte Trenor, 354 So.2d 1185 (Ala.1978).

We note that “self-defense and accident are inconsistent defenses, and the defendant alone may not provide the basis for submitting such inconsistent defenses to the jury.” Randolph, 496 S.W.2d at 262; Ameen, 463 S.W.2d at 842. “Taking human life in self-defense is an affirmative, positive, intentional act, and the law does not recognize the anomalous doctrine of accidental self-defense.” State v. Whitchurch, 339 Mo. 116, 96 S.W.2d 30, 35 (1936) (citations omitted).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    William Lincoln SMITH v. STATE.
    6 Div. 977.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-998.

      Jerry K. Selman of Selman, Beaird & Selman, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James P. Hampton, Spec. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was convicted of manslaughter in the death of Clarence Dickerson. Alabama Code Section 13A-6-3 (1975). Sentence was forty-five years’ imprisonment. Four issues are raised on appeal.

I

The defendant contends that the trial court erred in admitting evidence that he illegally sold alcoholic beverages and conducted gambling at his home, both on the night of the homicide and on prior occasions. He argues that this evidence supplied the inferences that he was the owner of a “shot-house” and a man of bad character. He also alleges that this evidence was improperly admitted to establish his guilt of crimes other than that charged in the indictment and for the sole purpose of showing his propensity to commit the charged offense.

The defendant and Dickerson got into a fight at the defendant’s residence in the early hours of December 11, 1981. The altercation began after the defendant attempted to end a “crap” game and asked the players to leave his home for the night. Several people were present at the defendant’s home that night gambling and drinking alcoholic beverages purchased from the defendant.

Evidence of the sale of alcoholic beverages and gambling was admissible as an exception to the general exclusionary rule prohibiting the introduction of distinct and independent offenses not charged in the indictment. C. Gamble, McElroy’s Alabama Evidence, Section 60.01(3) (3rd ed. 1977). The drinking and gambling were part of a series of events leading up to Dickerson’s death and were so inextricably intertwined therewith as to be a part of the res gestae. McMurtrey v. State, 39 Ala. App. 319, 323, 101 So.2d 88 (1957), cert. denied, 267 Ala. 259, 101 So.2d 93 (1958). Res gestae “embraces all facts which are relevant, explanatory, or illustrative of, or which give character to, or illustrate the character of, or which characterize the act or principle fact which was the subject of or for decision.” Sexton v. State, 239 Ala. 287, 288, 196 So. 744 (1940). Consequently, evidence of the gambling and drinking was admissible notwithstanding the fact that it tended to show the commission of other crimes.

In a prosecution for unlawful homicide it is “permissible to show all that transpired at the time of the difficulty and everything leading up to and explanatory of the tragedy.” Moulton v. State, 19 Ala.App. 446, 450, 98 So. 709, cert. denied, 210 Ala. 656, 98 So. 715 (1923). Testimony is admissible if it “tend(s) to prove the surrounding facts and circumstances leading up to and relating to the homicide.” Hill v. State, 25 Ala.App. 264, 265, 144 So. 582 (1932). “(E)vidence of connected acts leading up to and explanatory of killing, throwing light on action, animus, or intent of accused, is admissible, though not res gestae.” Smallwood, v. State, 26 Ala.App. 360, 361, 159 So. 699 (1935). See also Palmer v. State, 401 So.2d 266, 269-70 (Ala.Cr.App.), cert. denied, Ex parte Palmer, 401 So.2d 270 (Ala.1981).

The gambling and illegal alcohol sales were relevant to elucidate the circumstances of the shooting and to prove the defendant’s intent. Keith v. State, 253 Ala. 670, 675, 46 So.2d 705 (1950). Evidence that the defendant’s closing of the illegal activities he had sponsored in his home kindled the altercation which finally resulted in Dickerson’s death was fundamental to the “complete story” necessary for the jury to determine the defendant’s intent. Durden v. State, 394 So.2d 967 (Ala.Cr.App.1980), cert. quashed, Ex parte Durden, 394 So.2d 977 (Ala.1981).

II

The defendant argues that the trial court erred in not allowing him to voir dire the jury venire as to their acquaintance and relationship with the brothers and sisters of the deceased.

During voir dire of the venire, defense counsel asked the victim’s brother, who, apparently, was not a member of the venire but who was present in the courtroom, how many brothers he had. The trial judge responded, “We don’t need to embarrass that young man like that. * ⅞ * You could have gotten that information somewhere else.”

The defendant does not contend that the trial court prohibited any questions addressed to the venire regarding their knowledge of or relationship with the victim or his brothers or sisters. The defendant’s sole contention is that because he was not allowed to question Don Dickerson, who was present in the courtroom as a State’s witness during voir dire of the ve-nire, he was denied the practical ability to question the venire in this regard.

The manner in which the voir dire of the jury will be conducted is within the discretion of the trial judge. Gilliland v. State, 291 Ala. 89, 92, 277 So.2d 901 (1973). We find no abuse in the trial court’s refusal to allow defense counsel to publicly question a member of the deceased’s family in open court in the presence of the jury venire during the voir dire of that venire.

Ill

The defendant argues that the cumulative effect of the various statements and comments of the trial judge throughout the trial prejudiced his right to a fair trial.

We have carefully examined the judge’s complained of remarks and find they fall within the “long-observed rule” that “(i)n the interest of justice, a trial judge is given the authority to pose questions to a witness for the purpose of clarifying the issues for the jury’s consideration and to aid in the orderly conduct of the trial process.” Richardson v. State, 403 So.2d 297 (Ala.1981). “(T)he solemn and sacred duty of a trial judge—is the development and establishment of the truth, and in this connection it is always permissible for the court, ... to propound to witnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, whether beneficial to one party or the other.” Brandes v. State, 17 Ala.App. 390, 391, 85 So. 824 (1920), quoted in Blaylock v. State, 411 So.2d 1299, 1302 (Ala.Cr.App.1982).

The questions of the trial judge as to whether the witness actually saw the defendant sell alcohol and whether the witness actually purchased alcohol from the defendant did not depart from that standard of fairness and impartiality required of his position. Sprinkle v. State, 368 So.2d 554, 562 (Ala.Cr.App.1978), cert. quashed, 368 So.2d 565 (Ala.1979).

In responding to the defendant’s request for a mistrial, the trial judge replied:

“COURT: In light of your feelings on the matter, I might say that a trial Judge is not a bump on a log or not even a referee of a prize fight. He has not only the right, but he has the duty to participate in the examination of witnesses when necessary to bring out matters that have been insufficiently developed by counsel. It is even the Judge’s duty to make pertinent inquiry when it becomes necessary to bring out matters that have been insufficiently or confusingly developed by counsel.
“However, a trial Judge’s responsibility to assist the jury understanding the evidence by asking questions to clarify testimony, it must not be so zealously pursued as to give the jury the impression of partisanship or the impression that he believed one version of the evidence and disbelieved or doubts another. So, I certainly will watch myself, but for the record, or the record will show rather, that the defendant is being defended by two of the most capable defense lawyers in this part of the State, especially Mr. T.K. Selman who has for forty years gained the reputation for being one of the most vigorous and aggressive defense counsel in this part of the State. As compared to a young man who is the Assistant District Attorney who has never tried a murder case in his life. So, it might seem, it might appear from the record that there may be places where the Court will need to assist in the ascertainment of the facts and the truth in the case, and that would be—the only reason I am saying that is to assure you that I have no interest in the case, as you know.”

“(T)he comments of a trial judge in suggesting to the prosecution, ... the proper way in which to introduce admissible evidence do not constitute error where those comments do not prejudice the defendant or indicate any bias or attitude of the judge on the guilt or innocence of the accused or on the effect or weight to be given such evidence once admitted.” Burks v. State, 353 So.2d 539, 541 (Ala.Cr.App.1977). See also Barbee v. State, 395 So.2d 1128, 1133 (Ala.Cr.App.1981).

The judge’s admonitions to defense counsel not to argue were not prejudicial and did not transcend any duty resting upon the trial judge. Sprinkle, 368 So.2d at 563. “A judge is not to be severly criticized for his pointedly bringing the bad habit to the attention of an attorney.” Jones v. State, 398 So.2d 360, 367 (Ala.Cr.App.), cert. denied, 398 So.2d 369 (Ala.1981).

Finally, if any juror might have construed the judge’s remarks as any indication of the judge’s opinion on the defendant’s guilt or innocence, “that impression should have been dispelled by the judge’s instruction to the jurors (to the effect) that nothing he had said or done throughout the trial should be viewed by them as an indication of his opinion about the evidence.” Johnston v. City of Birmingham, 338 So.2d 7, 9 (Ala.Cr.App.1976).

IV

The defendant argues that his sentence is excessive and that the sentencing statute is “overbroad and unconstitutional and does not set any reasonable standards” for sentencing.

The defendant was convicted of manslaughter which is a Class C felony. Alabama Code Section 13A-6-3 (1975). The sentence for a Class C felony is “not more than 10 years or less than 1 year and 1 day.” Alabama Code Section 13A-5-6(a)(3). However, the sentence for a Class C felony in which a firearm was used is “not less than 10 years.” Alabama Code Section 13A-5-6(a)(5). Using this subdivision, the trial judge sentenced the defendant to forty-five years’ imprisonment. We find that this sentence exceeded the term fixed by statute.

In Alabama’s new Criminal Code, the sentences of imprisonment for felonies are codified in one statute instead of including a particular sentence for a given offense in the statute defining the elements of the crime.

“Section 13A-5-6. Sentences of imprisonment for felonies.
“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
(1) For a Class A felony, for life or not more than 99 years or less than 10 years.
(2) For a Class B felony, not more than 20 years or less than 2 years.
(3) For a Class C felony, not more than 10 years or less than 1 year and 1 day.
(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.
(5) For a Class B or C felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 10 years.”

Subdivisions (1) and (2) of Subsection (a) of this statute took effect on January 1, 1980. Subdivisions (4) and (5), setting the penalty for using or attempting to use a firearm or deadly weapon in the commission of a felony, were added by amendment the following year. 1981 Ala. Acts 1505, No. 81-840 (May 27, 1981).

This sentencing statute is constitutional. “It is the prerogative of the legislature to prescribe the punishment for crimes.” State v. Angus, 581 P.2d 992, 994 (Utah 1978). See also Cabbie v. State, 347 So.2d 546, 548 (Ala.Cr.App,), cert. denied, 347 So.2d 551 (Ala.1977). Included therein is the authority to increase the punishment or enhance the sentence where firearms or deadly weapons are used. State v. Bly, 127 Ariz. 370, 621 P.2d 279, 281 (1980); Angus, supra.

Similar statutes in other states have withstood constitutional attacks based on arguments of double jeopardy, equal protection, due process and separation of powers and legislative usurpation. Bly, supra; Scott v. State, 369 So.2d 330 (Fla.1979); People v. Stokes, 102 Ill.App.3d 909, 58 Ill.Dec. 428, 430 N.E.2d 370 (1981); State v. Davison, 614 P.2d 489 (Mont.1980); Angus, supra.

The defendant also argues that subsection (a)(5) of Section 13A-5-6 fails to state a maximum term of imprisonment and is therefore unconstitutional. We find that this section is constitutional and that both maximum and minimum terms of imprisonment are provided by the statute. We reach this conclusion by the application of well settled principles of statutory construction. Generally, see D. Sands, Sutherland Statutes And Statutory Construction, Section 59.03 (4th ed. 1974).

“The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. Darks Dairy, Inc. v. Alabama Dairy Commission, 367 So.2d 1378, 1380 (Ala.1979). It is obvious that, in enacting the 1981 amendment to Section 13A-5-6, the legislature was seeking to correct the serious problem of the use of a firearm or deadly weapon in the commission of crime.

“No matter what the crime, the potential for serious bodily injury or loss of human life arises when a crime is committed with a dangerous weapon. The crime itself is more reprehensible and for that reason a crime committed with a dangerous weapon or instrument shall be punished more severely than one which is not.” Bly, 621 P.2d at 281.

Statutes imposing penalties “must be strictly construed in favor of persons sought to be subjected to their operation”, Anderson v. City of Birmingham, 205 Ala. 604, 605, 88 So. 900 (1921), and “in favor of life and liberty.” 24B C.J.S. Criminal Law, Section 1979 (1962). “However, even penal laws are not to be construed so strictly as to defeat the obvious intent of the legislature.” McDonald v. State, 32 Ala.App. 606, 608, 28 So.2d 805 (1947). “(T)he interests of justice demand that criminal statutes not be construed irresponsibly. Unfortunate language or phrases within a statute, ... (do) not sanction a construction of that statute at odds with common sense and practicality of application.” Nobis v. State, 401 So.2d 191, 196 (Ala.Cr.App.), cert. denied, Ex parte Nobis, 401 So.2d 204 (Ala.1981).

Although “penal statutes are to reach no further in meaning than their words”, Fuller v. State, 257 Ala. 502, 505, 60 So.2d 202 (1952); Sexton v. State, 392 So.2d 1239, 1241 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1241 (Ala.1981), “every word and each section thereof must be given effect, if possible, and construed with the other sections in pari materia.” In re Ashworth, 291 Ala. 723, 726-27, 287 So.2d 843 (1974). “(P)arts of the same statute are in pari materia and each part is entitled to equal weight.” Darks Dairy, 367 So.2d at 1380-81. “(S)tatutes must be read as whole”, Adams v. Mathis, 350 So.2d 381, 385 (Ala.1977), and not construed as isolated phrases or clauses. Darks Dairy, supra.

If there is a conflict in the provisions of the same statute, the last provision in point of arrangement must control. Ashworth, supra; 24B C.J.S. Criminal Law, Section 1979 (1962). This is due to the principle of statutory construction which assumes that “in enacting the statute the legislature had full knowledge and information as to prior and existing law on the subject of the statute.” Miller v. State, 349 So.2d 129, 131 (Ala.Cr.App.1977).

“If a statute is susceptible to two constructions, one of which is workable and fair and the other unworkable and unjust, the court will assume that the legislature intended that which is workable and fair.” State v. Calumet & Hecla Consolidated Copper, Inc., 259 Ala. 225, 233-34, 66 So.2d 726 (1953). Statutes “should not be construed, however, as intending to prevent punishment unless no other alternative is permissible.” 24B C.J.S. Criminal Law, Section 1979 (1962).

“A criminal statute must be definite and certain with respect to the punishment it is intended to impose.” Smith v. United States, 145 F.2d 643, 644 (10th Cir.1944), cert. denied, 323 U.S. 803, 65 S.Ct. 563, 89 L.Ed. 641 (1945). Of particular importance in this case is the principle that the “constitutional validity of a particular statute is not affected merely because the statute does not expressly limit and fix the maximum penalty which may be imposed. It is sufficient if the maximum penalty is fixed by a general or related statute.” Andreas v. Clark, 71 F.2d 908, 909 (9th Cir.1934); Palmer v. State, 168 Ala. 124, 53 So. 283 (1910); 22 C.J.S. Criminal Law, Section 25 (1961).

Alabama has no general statute fixing the maximum penalty which may be imposed for a felony. Section 15-18-23, Alabama Code (1975), provided that “(w)hen no maximum limit to the duration of the imprisonment is prescribed by law, the court may, in its discretion, sentence the offender to imprisonment for the term of his natural life.” Trone v. State, 366 So.2d 379 (Ala.Cr.App.1979). This section was repealed by our new Criminal Code.

Applying these principles and rules of construction, we find that Section 13A-5-6 is definite and certain with respect to the punishments it intends to impose. We do find that it was misconstrued by the trial judge who mistakenly sentenced the defendant to a term of imprisonment in excess of that authorized by statute.

Isolated from the remainder of the statute, subdivisions (4) and (5) of subsection (a) do establish minimum sentences without fixing maximum terms. Construing the statute as a whole, it is clear that those maximum terms are in fact supplied by subdivisions (1), (2) and (3) of subsection (a). Any confusion created by the failure of subdivisions (4) and (5) to specifically state the maximum limits of imprisonment must be imputed to the fact that these subdivisions were added by subsequent amendment. Because the new subdivisions neither repeal nor contradict the existing provisions of Section 13A-5-6, the maximum sentences of the existing provisions of the statute must govern if the statute is to be construed as a whole giving effect to each portion and every word thereof. This is the only reasonable and just construction available.

The defendant relies heavily on the fact that Section 13A-5-6(a) states that “(s)entences for felonies shall be for a definite term of imprisonment.” In light of the fact that our legislature has abandoned the indeterminate sentencing policy found in previous enactments of the criminal code (see Hall v. State, 33 Ala.App. 429, 34 So.2d 231 (1948), we construe this phrase to refer to the actual sentence imposed on the accused as distinguished from the range of punishment.

The terms of imprisonment provided by Section 13A-5-6 where a firearm or deadly weapon was used or attempted to be used in the commission of a felony are as follows:

Degree of Felony Authorized Term
Class A 20 to 99 years or life
Class B 10 to 20 years
Class C 10 years

In accordance with this opinion, the judgment of the circuit court is affirmed but the cause is remanded for proper sentencing.

AFFIRMED;

REMANDED FOR PROPER SENTENCING.

All Judges concur.


author: PER CURIAM.

text:
    Ex parte State of Alabama. (Re William Lincoln SMITH v. STATE of Alabama). Ex parte State of Alabama. (Re Ex parte David WAKEFIELD). (Re STATE of Alabama v. David WAKEFIELD).
    82-999, 82-776.
    Supreme Court of Alabama.
    Feb. 24, 1984.

      Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for petitioner.
    Jerry K. Selman of Selman, Beaird & Selman, Jasper, for respondent William Lincoln Smith.
    Arthur Parker, Birmingham, for respondent David Wakefield.
   PER CURIAM.

82-999, THE SMITH CASE

William Lincoln Smith was convicted of manslaughter in which a firearm was used, a class “C” felony, in the Circuit Court of Walker County on May 18, 1982. He was sentenced to 45 years of imprisonment pursuant to Code 1975, § 13A-5-6(a):

“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.
“(2) For a Class B felony, not more than 20 years or less than 2 years.
“(3) For a Class C felony, not more than 10 years or less than 1 year and 1 day.
“(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.
“(5) For a Class B or C felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 10 years.” (Emphasis added.)

Smith appealed his conviction and sentence to the Court of Criminal Appeals and that court affirmed his conviction but reversed his sentence on the grounds that the trial court had misconstrued the provisions of § 13A-5-6(a)(5). We agree with the opinion of the Court of Criminal Appeals. Under § 13A-5-6(a)(3) the term of imprisonment may be set at not more than 10 years. Under section (5) if a deadly weapon is used the sentence must be for at least 10 years. Section (5) must be construed to mean that the 10-year-term is both the minimum and maximum sentence which can be imposed for a Class C felony. We have very carefully considered the forceful argument made by the state that a sentencing statute which sets á minimum sentence but specifically sets no maximum, implicitly sets a maximum sentence of life imprisonment, but we are persuaded that the reasoning by the Court of Criminal Appeals is correct and that the judgment of that court is due to be affirmed.

AFFIRMED.

82-776, THE WAKEFIELD CASE

David Wakefield was indicted for capital murder, but was convicted of manslaughter, a Class “C” felony. The trial court sentenced Wakefield to 45 years of imprisonment pursuant to the provisions of Code 1975, § 13A-5-6(a)(5).

Wakefield appealed his conviction and sentence, see 447 So.2d 1325, and subsequently brought a petition for mandamus against the trial judge in which he demanded that the trial judge be compelled to set aside the 45-year sentence and instead sentence him under the provisions of Code 1975, § 13A-5-6(a)(3).

The Court of Criminal Appeals issued the writ of mandamus in which the court ordered the trial judge to sentence the defendant to 10 years of imprisonment.

The legal issue involved in this case is identical to the legal issue involved in the case of Ex parte State of Alabama, In re William Lincoln Smith, (82-999), which was consolidated with it here in this Court. The judgment of the Court of Criminal Appeals is due to be affirmed on the same grounds we stated in affirming the judgment of the Court of Criminal Appeals in the Smith case.

The state, in a reply brief, argues that mandamus relief was inappropriate in this case because Wakefield was appealing his conviction. As the state correctly points out, mandamus is not a substitute for an appeal, but we believe that under the particular facts of this case, mandamus was not inappropriate. Wakefield had indeed appealed his case, but he had been improperly sentenced to 45 years of imprisonment, and because of the length of his sentence, was not entitled to apply for bail pending his appeal under the provisions of Code 1975, § 12-22-170.

The Court of Criminal Appeals has the power to issue writs of mandamus in relation to matters in which it has appellate jurisdiction. Amendment 328, § 6.03, Constitution of Alabama 1901. Here, that appellate court, having correctly concluded that the trial judge had exceeded his authority in imposing a 45-year sentence, was authorized to order the trial court to correct the sentence. Otherwise, Wakefield could have remained incarcerated until the question was decided on his appeal. The remedy by appeal was therefore inadequate to prevent this undue injury. Cf. Alcoholic Beverage Control Board v. Taylor, 339 So.2d 66 (Ala.1976).

AFFIRMED.

CONCLUSION

In view of the foregoing, the judgments entered by the Court of Criminal Appeals in both of these cases are due to be affirmed.

AFFIRMED.

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


author: EHRLICH, Justice. OVERTON, Justice, BOYD, Justice,

text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE CO., Petitioner, v. Deborah KWECHIN, Respondent.
    No. 61843.
    Supreme Court of Florida.
    Dec. 1, 1983.
    Rehearing Denied May 3, 1984.
    Goodhart & Rosner, P.A., Miami, Schwartz, Klein, Steinhardt & Weiss, P.A., North Miami Beach, and Mark Hicks and Patrice A. Talisman of Daniels & Hicks, Miami, for petitioner.
    Edward A. Perse of Horton, Perse & Ginsberg, and Michael Nuzzo, Miami, for respondent.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Allstate Ins. Co., General Acc. Fire & Life Assur. Corp., and Nationwide Mut. Ins. Co., amicus curiae.
   EHRLICH, Justice.

Pursuant to jurisdiction granted in article V, section 3(b)(4) of the Florida Constitution, we have before us the following certified question of great public importance:

[Whether] an insurer which sells' to a prospective insured a personal injury protection policy containing deductibles, knowing that the prospective insured does not have other collateral insurance or benefits, is liable to the insured under the policy as if the policy contained no deductible.

Kwechin v. Industrial Fire & Casualty Co., 409 So.2d 28, 31 (Fla. 3d DCA 1981). We answer the question in the affirmative and approve the holding of the district court.

Florida law requires that automobile insurance coverage must include personal injury protection (PIP). Deborah Kwechin, respondent here, purchased automobile insurance from petitioner, Industrial Fire & Casualty Co. Although the insurance agent writing the policy had actual knowledge that Kwechin had no collateral coverage, he provided a $4,000 deductible in her PIP coverage. Ten days later, Kwechin was injured in an automobile accident and sought compensation from the insurance company. The insurer refused to pay any medical expenses below the $4,000 deductible amount provided.

Kwechin brought suit, claiming the policy as issued violated section 627.739, Florida Statutes (1977) and that the insurance company was liable for medical expenses under the $4,000 threshhold, the deductible provision notwithstanding. Both parties moved for summary judgment; the trial court granted summary judgment in favor of the insurer. The district court reversed and certified the question we now address.

Section 627.739 provides, in pertinent part:

In order to prevent duplication with other private or governmental insurance or benefits for senior citizens and others with access to such insurance or benefits, each insurer providing the coverage and benefits described in s. 627.736(1) shall offer to the named insureds modified forms of personal injury protection as described in this section. Such election may be made by the named insured to apply to the named insured alone, or to the named insured and dependent relatives residing in the same household. Any person electing such modified coverage, or subject to such modified coverage as a result of the named insured’s election, shall have no right to claim or to recover any amount so deducted from any owner, registrant, operator, or occupant of a vehicle or any person or organization legally responsible for any such person’s acts or omissions who is made exempt from tort liability by ss. 627.730-627.741. Premium reductions for each modification or combination of modifications shall be adequate to recognize the reduction in hazard and shall be subject to the approval of the Department of Insurance.
(1) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, $1,000, $2,000, $3,000, and $4,000, said amount to be deducted from the benefits otherwise due each person subject to the deduction, and shall explain to each applicant or policyholder that if they have coverage under private or governmental disability plans, they may avail themselves of deductibles or other modifications as provided in subsections (1), (2), and (3).

This provision is a part of Florida’s Automobile Reparations Reform Act, sections 627.730-41 Florida Statutes (1973) (the “No-Fault Insurance Law). In Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974), this Court upheld that entire law in the face of a challenge to its constitutionality. Central to that decision was the Court’s recognition of the legislative intent to enhance the public welfare through

a lessening of the congestion of the court system, a reduction in concomitant delays in court calendars, a reduction of automobile insurance premiums and an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls.

Id. at 16 (emphasis supplied).

This enunciation of the general policy underlying the No-Fault Insurance Law is in no way in conflict with the specific policy set forth in the first sentence of section 627.739: “In order to prevent duplication with other ... insurance or benefits” insurers are authorized to offer deductibles. The express authorization of deductibles in the enumerated situations implies the prohibition against them in all other situations according to the rule of statutory construction inclusio unius est ex-clusio alterius.

Further support for this reading of section 627.739 comes from reading it in pari materia with the rest of Florida’s No-Fault Insurance Law. To allow one who lacks any other applicable insurance coverage to purchase personal injury protection subject to a deductible of several thousand dollars makes that person, in effect, a self insurer for that not inconsiderable amount without subjecting the insured to any showing of financial responsibility as required by section 627.733(3)(b), Florida Statutes (1977). Indisputably, allowing insurance companies to issue policies with large deductibles not covered by other insurance circumvents the general policy of this law as articulated in Lasky.

Accordingly, the necessity for a provision in the act which allows one with collateral coverage to pay a reduced premium for the statutorily required insurance is obvious in light of section 627.7372, Florida Statutes (1977). This section provides that any amount paid from a collateral source may be set off against any amount payable from insurance coverage mandated by the act. To require payment for coverage which is redundant, therefore uncollecta-ble, would be inequitable. Hence, section 627.739 provides for a deductible to prevent overlapping coverage.

To read this statute to permit issuance of inappropriate coverage while it denies access to the courts to remedy the loss raises grave constitutional problems. See Lasky, supra; Kluger v. White, 281 So.2d 1 (Fla.1973). When two constructions of a statute are possible, one of which is of questionable constitutionality, the statute must be construed so as to avoid any violation of the constitution. State v. Beasley, 317 So.2d 750 (Fla.1975); Garcia v. Allstate Insurance Co., 327 So.2d 784 (Fla. 3d DCA 1976).

For the foregoing reasons, the certified question is answered in the affirmative and the decision of the district court is approved.

It is so ordered.

ADKINS and McDONALD, JJ., concur.

OVERTON, J., concurs with an opinion.

BOYD, J., dissents with an opinion.

ALDERMAN, C.J., dissents.

OVERTON, Justice,

concurring.

I concur. To construe this statute to allow the deduction without collateral coverage would, in my view, require a holding that the no-fault law is unconstitutional.

BOYD, Justice,

dissenting.

Consistent with Chapman v. Dillon, 415 So.2d 12 (Fla.1982), and Lasky v. State Farm Insurance, 296 So.2d 9 (Fla.1974), I would uphold the statutory approval of a $4,000 optional deductible in personal injury protection policies, § 627.739(1), Fla.Stat. (1977), and answer the certified question in the negative.

In Chapman v. Dillon, we said:

The purpose of raising the permissible amount of deductible is to prevent car owners who have some other type of insurance coverage from paying premiums for duplicative coverage. Purchasers of insurance contracts choose one of the optional deductibles and we should presume that they do so with knowledge of the consequences.

415 So.2d at 18. The Court’s holding today will require insurance agents and insurance company sales employees to inquire into the financial affairs of all persons selecting one of the optional deductibles available with personal injury protection coverage and to counsel with such individuals concerning the coverage and deductible selected. To avoid future liability such agents will need to require written statements indicating that appropriate complementary coverage exists. The imposition of such duties on those who sell insurance should be required only if clearly intended under the statute and should not be ordered by this Court.

References to the public policy expressed in the financial responsibility law cited by the majority are inapposite because those provisions exist for the protection of society while the selection of a certain personal injury protection deductible affects only the person selecting such deductible.

The constitutionality of the Automobile Reparations Reform Act was settled in Chapman v. Dillon and Lasky v. State Farm Insurance. We should not rewrite the statute but should construe and apply it according to the manifest legislative intent.

      . Section 627.733(3)(b), Fla.Slat. (1977) provides:
      (b) Security may be provided with respect to any motor vehicle by any other method [i.c. other than insurance] authorized by s. 324.-031(2), (3), or (4)...
      Section 324.031, Fla.Stat. (1977) provides in pertinent part:
      The operator or owner of a vehicle may prove his financial responsibility by:
      (1) ...,
      (2) Posting with the department a satisfactory bond of a surety company authorized to do business in this state,
      (3) Furnishing a certificate of the department showing a deposit of cash or securities ...,
      (4) Furnishing a certificate of self-insurance issued by the department in accordance with s. 324.171.
      Section 324.171, Florida Statutes (1977) provides that one may self-insure only if he has unencumbered net capital of at least 540,000.


text:
    THE FLORIDA BAR, Complainant, v. Thomas A. LARKIN, Respondent.
    No. 62976.
    Supreme Court of Florida.
    Jan. 12, 1984.
    Rehearing Denied May 2, 1984.

      John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, and Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    Francis Jerome Shea, Jacksonville, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Thomas A. Larkin, 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 11.09(1) has been filed.

The uncontested referee’s report contains the following recommendations:

Respondent is 61 years old. He is a former Circuit Judge.
In 1979 Respondent received a public reprimand and one year probation for failing to file suit on behalf of his clients prior to the expiration of the applicable statutory time limitation for filing their claim.
In 1982 Respondent was suspended for 91 days for three counts of misconduct by the Florida Supreme Court in The Florida Bar v. Larkin, 420 So.2d 1080 (Fla.1982). Both of the prior disciplinary cases involved conduct similar to the conduct of which Respondent is guilty of in this case.
Respondent applied for reinstatement in February, 1983, and his petition is scheduled for hearing August 26th.
Respondent attributes his violations to alcohol abuse and claims he has conquered his drinking problem. He has not had a drink in over a year. He says he delayed filing his petition for reinstatement until he could be certain he had conquered the drinking. Because of the duration of his actual suspension (one year as of August 26th) Respondent requests any recommended disciplinary measures to be imposed retroactively and run concurrent with the prior suspension.
Protection of the public, punishment, rehabilitation of an attorney who commits ethical violations are three important purposes of disciplinary measures. Equally important purposes, however, are a deterrence to other members of the Bar and the creation and protection of a favorable image of the profession. The latter will not occur unless the profession imposes visible and effective disciplinary measures when serious violations occur. The mishandling of trust funds and neglect of a client’s case are among the most serious violations which an attorney can commit. Alcoholism explains the violations, it does not justify them.
Respondent’s delay in applying for reinstatement was his own decision. Apparently he did not believe he was ready for reinstatement until February of 1983. Further delay in pursuing his petition was obviously influenced by this case and the civil case which was filed by Dees against Respondent and not settled until March.
The Referee recommends that Respondent be suspended from the practice of law for a period of ninety-one days from the date of the order of suspension and thereafter until he shall prove his rehabilitation.

We approve the referee’s recommendations and suspend respondent for ninety-one days effective today and thereafter until he proves rehabilitation.

Costs in the amount of $771.54 are hereby taxed against the respondent.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OV-ERTON, MCDONALD and EHRLICH, JJ., concur.


author: PER CURIAM. BOYD, Acting Chief Justice,

text:
    THE FLORIDA BAR, Complainant, v. Richard E. GENTRY, Respondent.
    No. 62061.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied May 2, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    Richard E. Gentry, in pro. per., St. Augustine, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of The Florida Bar and the report of the referee recommending that petitioner, Richard E. Gentry, be found guilty of violating the Integration Rules of The Florida Bar and the Disciplinary Rules of the Code of Professional Responsibility. We accept the referee’s final recommendation as to the disciplinary measures to be applied. We have jurisdiction pursuant to article V, section 15 of the Florida Constitution.

The referee’s findings and recommendations, in summary, are as follows:

COUNT ONE

After receiving funds from a client in trust, Gentry removed them from an identifiable trust account and deposited them in a personal savings account. Upon termination of the attorney-client relationship, Gentry refused to return the funds when demanded by the client. He later pledged a portion of the trust funds as security for a personal loan. Gentry, therefore, should be found guilty of violating The Florida Bar’s Integration Rule, art. XI, Rule 11.-02(4).

COUNT TWO

Gentry appeared at a deposition without bringing the records and documents requested by the subpoena duces tecum and gave false answers to questions about the savings and loan association where he had a personal savings account. Gentry, therefore, should be found guilty of violating The Florida Bar Code of Professional Responsibility Disciplinary Rule 1-102(A)(4), (5), and (6).

COUNT THREE

Gentry drafted a rental agreement between himself and his landlord, a Dr. Yost, and thereafter denied its validity. Gentry should, therefore, be found in violation of Disciplinary Rule 1-102(A)(4), (5), and (6) even though it has not been proven that he believed at the time he drafted the contract that it was unenforceable.

COUNT FOUR

Gentry admitted that he instructed his secretary to prepare a cheek to be drawn on his trust account in payment of a personal obligation. Gentry, therefore, should be found guilty of violating Florida Bar Integration Rule, Art. XI, rule 11.02(4), and Disciplinary Rule 9-102. The referee recommended that Gentry be suspended for a period of six months.

After examining the record and referee’s report we approve the referee’s findings and conclusions in counts one and two. We must reject as unfounded, however, the referee’s finding of guilt in count three. In regard to count four, while we cannot accept the referee’s factual findings in full, there exists sufficient evidence in the record to support the referee’s conclusion of guilt.

Respondent argues that res judicata bars a finding of guilt on count one because the transaction in question had already been the subject of a previous disciplinary proceeding in which respondent was found guilty of misconduct and given a private reprimand. It is true that the earlier disciplinary proceeding and the allegations in count one both involve the withholding of trust funds and the transfer of those funds to a personal account. Count one of the complaint, however, is based on separate, additional, and continuing misconduct on the part of respondent. After Gentry had received notice that the monies in his personal savings account were es-crowed funds to be held for the benefit of his client, Gentry pledged those funds as collateral for a personal loan. Clearly, the subject matter of the prior disciplinary hearing and the allegations in count one of the complaint do not possess an “identity of facts” required for the application of the res judicata doctrine. See Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952).

With regard to count three, we accept the referee’s findings of misconduct. While the evidence is insufficient to support a finding of violation of Disciplinary Rule 1-102(A)(4) and (5), it does reflect a violation of Disciplinary Rule 1-102(A)(6). Gentry prepared a contract and then claimed that it was unenforceable because his wife had not joined him in its execution. Little confidence of the bar can be expected if a lawyer seeks to escape from a personal contract because of errors created by that lawyer in its preparation or execution.

Regarding count four, the record indicates that, contrary to the referee’s conclusion, Gentry did not admit that he knowingly instructed his secretary to draw a check on trust funds in payment of a personal obligation. The record does reveal, however, that Gentry learned that a trust account check had been issued and that he took no action to correct the matter until several days later when the check had been dishonored. Thus, there exists sufficient evidence to support the referee’s finding of trust account misconduct.

We therefore conclude that, as recommended by the referee, Richard E. Gentry shall stand suspended as a member of The Florida Bar for a period of six months, commencing thirty days from the filing of this opinion. During this time he shall not engage in the practice of law in any manner. He is also directed to pay costs in the sum of $2,460.50 within thirty days of the filing of this opinion.

It is so ordered.

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

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

BOYD, Acting Chief Justice,

concurring in part and dissenting in part.

In several important particulars, the factual findings in the referee’s report are not supported by competent, substantial evidence. The Bar failed to present evidence to prove the most serious of the allegations of its complaint. There was proof of several instances of professional misconduct and for these respondent should be disciplined. But the proven misconduct ■ is not serious enough to warrant a six-month suspension. In view of the degree of rehabilitation already shown, I would impose upon respondent a public reprimand, place him on supervised probation for two years, and require that he pay the costs of these proceedings.

Regarding count one, the referee found that respondent had refused to return $8,000 of “escrow money” to a client when demanded, that he placed the money in a personal account, and that he pledged a portion of it as security for a personal loan. The referee concluded that respondent thereby violated article XI, Rule 11.02(4) of the Integration Rule. Respondent contends that the finding of guilt on count one is erroneous because the transaction in question has already been the subject of a previous disciplinary proceeding in which respondent was found guilty of minor misconduct and given a private reprimand. He argues that the outcome of the prior proceeding is res judicata on the question of misconduct and discipline. The Bar concedes that count one duplicates the earlier proceeding insofar as it alleges withholding of trust funds and transfer of trust funds to a personal account, but takes the position that the new charges pertain to the additional misconduct of pledging the account for a personal loan and the continuing misconduct of failing to replace the funds to a designated trust account.

In its effort to prove the allegations of count one, the Bar relied on documents from the previous disciplinary proceeding against respondent. During the previous proceeding, branch staff counsel notified respondent of the grievance committee’s finding of minor misconduct and recommendation of a private reprimand. The letter said that the finding was predicated on respondent’s depositing funds held in trust in a personal savings account and his refusal “to turn over on demand those portions of the trust funds ... that were not disputed fees.” In the present proceeding, this letter was allowed to stand as substantive evidence of misconduct, and the Bar presented no other evidence about respondent’s relationship with the client, nor about the means or process by which respondent came into possession of the $8,000 alleged to have been beneficially owned by the client. Indeed, when respondent attempted to testify concerning these matters, he was not allowed to, on the ground that the background information was already established and adjudicated by the previous proceeding. The documents relied on by the Bar also show that as a condition of the private reprimand and minor misconduct finding, respondent was told to return $2,100 to the client.

Thus the Bar’s argument that count one is based on separate, additional, and continuing misconduct is grounded in the theory that the previous proceeding not only disciplined respondent for misconduct, but also put him on notice that the funds in the personal savings account were to be regarded as trust funds. Respondent testified that prior to the previous disciplinary proceeding, he had held $8,000 in an escrow account. For reasons which respondent was not allowed to testify about, he regarded the money as his. After notifying The Florida Bar and the client, respondent removed the $8,000 from the escrow account and placed it in a personal savings account. The client complained, thus bringing about the previous grievance committee proceeding referred to above. Respondent testified that he understood the letter from branch staff counsel to say that the committee had found that $2,100 of the money was held in trust for the client and therefore had to be returned on his demand. Respondent believed that the remainder of the money, after returning $2,100 to the client, was to be left to the arena of civil litigation for determination of rightful ownership and was therefore respondent’s unless and until a civil court should declare otherwise.

Contrary to the findings of the majority opinion, the record shows that respondent’s pledge of the savings account as security for a personal loan took place before the commencement of the previous disciplinary proceeding. Thus this was not subsequent misconduct and was not separate from the misconduct found in the previous disciplinary proceeding. It took place before respondent was put on notice of the Bar’s findings. Therefore the Bar’s argument on the pledging must fail.

Bar counsel took the position below that the reprimand and explanatory letter put respondent on notice that the Bar regarded all of the money as held in trust, so that the subsequent failure to replace the money to a designated trust account was additional misconduct separate from the misconduct already disciplined. However, the letter failed to make this clear. That the committee regarded the entire amount as held in trust is certainly a reasonable conclusion to draw from the letter, but it is not the only possible reasonable interpretation. According to article XI, Rule 11.02(4), money held in trust must be returned to the beneficial owner on demand or else the attorney is guilty of a conversion. Because the committee only required respondent to pay $2,100 in response to the client’s demand, respondent could have concluded that the committee did not regard the remainder of the money as held in trust. I therefore believe that the findings of trust account misconduct under count one, separate and apart from the misconduct that was the subject of the previous proceedings, are not supported by competent, substantial evidence. I would therefore reject the findings and recommendations of the referee on count one.

On count two, I would approve the referee’s findings of guilt in part and reject them in part, and I therefore concur in part and dissent in part to the Court’s approval in full of the findings on count two. My review of the record reveals that respondent was guilty of conduct prejudicial to the administration of justice and conduct adversely reflecting on fitness to practice law. Based on the whole record, however, I do not believe that clear and convincing evidence was presented to the referee showing that respondent engaged in dishonesty, deceit, fraud, or misrepresentation. Although the referee found that there was this latter kind of misconduct, he made no explicit finding on the issue of guilty knowledge, which should be a requirement for such a legal conclusion.

Regarding count three, I dissent from the Court's approval of the referee’s finding of misconduct. The referee found that respondent drafted a real estate lease agreement, that he “later informed Dr. Yost that the contract was an unenforceable lease,” and that Dr. Yost and his lawyer “felt and treated the real estate contract as a valid contract.” Based on these findings the referee recommended that respondent be found guilty of violating Disciplinary Rule 1-102(A)(4) (dishonesty, etc.) and 1-102(A)(6) (conduct adversely reflecting on fitness to practice law), but added: “however, it was not proven to this referee that the Respondent believed at the time he drafted the contract that it was unenforceable.” Respondent correctly argues that it was erroneous for the referee to recommend a finding of guilt on count three while finding no proof of belief on respondent’s part that the contract was unenforceable when he drafted it.

The complaint in count three alleged that Dr. Yost asked respondent to draft a document reflecting their agreement and that at the time he drafted it, “respondent believed the contract to be an unenforceable lease.” There was no attorney-client relationship alleged or proved, and no evidence that Dr. Yost was relying on or placing his trust in respondent. Indeed, the evidence showed that Dr. Yost had his own lawyer who reviewed the agreement drafted by respondent and advised Dr. Yost that it was adequate. Thus the agreement was clearly the product of an arms-length transaction. The Bar failed to introduce the document into evidence, but the testimony showed that it was a lease of a house with an option to purchase. The referee found that some time after drafting it, respondent stated to Dr. Yost that it was an unenforceable lease. All the testimony about the agreement, however, pertained to its purchase and sale provisions rather than its lease provisions.

Since there was no evidence about whether the agreement was enforceable or not, the gravamen of the complaint seems to be that respondent intended to perpetrate a fraud on Dr. Yost by attempting to draft an unenforceable lease, even though the lease may have in fact been enforceable. Thus proof of the mental element of fraudulent intent is essential to a finding of the misconduct charged. The referee specifically found evidence of the mental element to be lacking, but found the misconduct anyway. This was clearly erroneous. The evidence does not sustain the findings of guilt on count three. The findings should therefore be rejected.

Regarding count four, the referee found that a check written and issued on respondent’s behalf for a personal obligation was written on his trust account, that it was dishonored as “drawn against uncollected funds,” that respondent wrote a valid check on his own account discharging the obligation twelve days later, and that when the trust account check was written, neither account contained sufficient funds to cover the check. The referee recommended that respondent be found guilty of violating article XI, Rule 11.02(4) of the Integration Rule and Disciplinary Rule 9-102.

The referee found that respondent admitted having instructed his secretary to issue a check drawn on his trust account. As the majority opinion correctly concedes, this finding was clearly erroneous. Not only did respondent not admit this, but there was neither an allegation nor any proof that respondent directed that a trust account check be issued. The evidence showed that respondent instructed his office to issue a check for $1,800 to Dr. Yost’s attorney in payment for three months’ rent. The secretary who signed and delivered the check testified that she told respondent on the following day that it was a trust account check. Respondent testified that he learned this later. Respondent contends that the referee’s finding of wrongdoing is erroneous because the evidence failed to prove the alleged misconduct of knowingly using trust funds to pay a personal debt.

The evidence showed that after the check was dishonored respondent redeemed it a few days later with another check drawn on his personal funds. The referee concluded that respondent should be found guilty of trust account misconduct but made no explicit finding on the issue of respondent’s intent, knowledge, or motive. At the hearing below Bar counsel diverged widely from the allegations of the complaint and argued that the evidence showed a very different kind of misconduct based entirely on inference: that respondent knowingly used the worthless trust account check to temporarily placate his creditor.

Although the evidence on count four showed extremely poor law office management and control procedures, it did not establish that respondent intentionally used funds held in trust for his personal benefit. However, there was evidence that respondent learned on the following day that a trust account check had been issued and that he took no action to correct the matter until several days later when the check was dishonored. I therefore concur in the approval of the finding that there was trust account misconduct. I find, however, insufficient evidence of corrupt motive or fraudulent intent, and therefore cannot concur in the Court’s approval in full of the referee’s findings on count four.

Respondent contends that the referee’s recommended discipline of six months suspension is too harsh under the circumstances. Respondent presented evidence that he has taken steps to reform himself thus remedying the alcoholic condition which he says was the root cause of most of his problems. Since the Bar sought a suspension requiring proof of rehabilitation for reinstatement, it is appropriate to consider respondent’s initial steps toward rehabilitation in deciding upon an appropriate discipline.

I have found the evidence insufficient to support the findings of the alleged misconduct on counts one and three. As to count two, I have found the charge of dishonesty or deceit to be unsupported by evidence, while approving the findings of conduct prejudicial to the administration of justice and conduct reflecting adversely on fitness to practice law. On count four I have found trust account misconduct based on poor law office management and control procedures and failure of diligent supervision, but without corrupt motive. The evidence showed that respondent conducted his professional and financial affairs in a highly disorganized manner. By his own admission it has been shown that respondent has endangered the interests of clients and the public image of the legal profession through poor law office management and obnoxious personal behavior due to alcoholism.

Having found the referee’s most serious recommended findings of misconduct unsubstantiated by evidence, and having considered respondent’s first steps toward reform, I conclude that the recommended suspension is not appropriate. Based on the supported findings of misconduct and the demonstrated need for supervision, I conclude that the appropriate discipline is a public reprimand and two years of supervised probation.

       This is Richard Ellis Gentry of St. Augustine, not to be confused with Richard Earl Gentry of Tallahassee.


author: BOYD, Justice. OVERTON, Justice,

text:
    Al H. BLAKE, Property Appraiser of Dade County, R.K. Overstreet, Tax Collector of Dade County, and Randy Miller, Executive Director of the Florida Department of Revenue, Petitioners, v. XEROX CORPORATION, Respondent.
    No. 62445.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied May 3, 1984.

      Jim Smith, Atty. Gen. and J. Terrell Williams, Asst. Atty. Gen., Tallahassee; and Robert A. Ginsburg, Dade County Atty., and Stephen J. Keating, Asst. County Atty., Miami, for petitioners.
    Randy R. Briggs of Ayres, Cluster, Curry, McCall & Briggs, Ocala, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal, Xerox Corp. v. Blake, 415 So.2d 1308 (Fla. 3d DCA 1982). We granted review on the jurisdictional ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const.

This case involves the appraisal of the value of Xerox Corporation’s copying machines and other business equipment in Dade County, for purposes of levying ad valorem taxation for the year 1977. Xerox owns thousands of such machines situated in Dade County, and leases them to its customers. Xerox is also in the business of selling copying machines and other items, and has set prices for its new products offered for sale, ’Die Dade County Property Appraiser appraised Xerox’s leased equipment at $28,100,053, using the list prices of the various machines adjusted for depreciation.

Xerox filed a complaint against the property appraiser and the Dade County Tax Collector claiming that the county appraiser’s method of valuation violated article VII, section 4, Florida Constitution, and section 193.011, Florida Statutes (1977). The Florida Department of Revenue was later added as a party defendant. At trial Xerox presented evidence and argument to the effect that the county property appraiser should have used an income capitalization method for assessing the property rather than looking at list prices adjusted for depreciation. The income capitalization method concentrates on the capacity of property to produce income and capitalizes such net income into present value. Xerox claimed that the income capitalization method of valuation achieves a fairer representation of market value because the vast majority of the equipment manufactured by Xerox is leased arid argued that there was an insufficient sales market to justify the use of the list prices as representative of market value. Xerox presented a calculation of value, using the income capitalization method, amounting to $15,338,280.

The trial court rendered judgment for Dade County, finding:

1. The Court finds that the Plaintiff failed to sustain its burden of proof that the Property Appraiser did not consider all the relevant factors under F.S. 193.-011.
2. The Court rejects the income approach used by Plaintiff’s experts as representing just or market value for the following reasons:
(a) The approach failed to provide for salvage value.
(b) The officer or agent of the Plaintiff admitted that the Plaintiff corporation would not sell its equipment at the prices indicated by its income approach.
3. The “List Price less depreciation” method used by the Property Appraiser more accurately reflected just value albeit that the amount of sales was small and the sales were not of all models of Xerox equipment.
4. The Property Appraiser did not abuse his discretion, and the value set by the Property Appraiser did represent just or fair market value.

On appeal, the district court of appeal reversed, finding that the list prices were not a fair representation of market value since only a small proportion of the copiers and accessories produced by Xerox were sold. The court held “that the absence of an established sales market for the Xerox equipment in question required the appraiser to utilize an income capitalization method as the only method which would assure a just valuation.” 415 So.2d at 1311.

The district court found that the income capitalization method put forward by Xerox was a better method of determining market value than the list-price-less-depreciation method used by the property appraiser. On the basis of this perceived superiority of one method over the other, the district court held that the income capitalization method should have been used. But see Xerox Corp. v. Blake, 415 So.2d at 1311 (Pearson, J., concurring) (income capitalization was the only possible legally correct method). We find that the district court applied an erroneous standard of review and we therefore quash the district court’s decision.

The property appraiser’s determination of assessment value was an exercise of administrative discretion within the officer’s field of expertise. Therefore, if the appraiser proceeded lawfully, then that determination was clothed with a presumption of correctness when the taxpayer challenged it. The burden was on the taxpayer to show that the appraiser departed from the requirements of the law or that the appraisal made was not supported by any reasonable hypothesis of legality. Powell v. Kelly, 223 So.2d 305 (Fla.1969).

The trial court, as was indicated above where the findings are set out, found that Xerox Corporation had failed to show that the appraiser departed from the law governing the appraisal of property for ad valorem taxation. Section 193.011, Florida Statutes (1977), provides a list of factors which a property appraiser is to consider when determining the “just valuation” of property. The trial court’s determination that the appraiser properly considered the statutory factors as mandated was supported by competent, substantial evidence. Thus the only remaining question was whether the appraiser, following the law, could conceivably and reasonably have arrived at the appraisal value being challenged. Although the trial court appears to have grounded its judgment on the finding that Xerox had failed to prove that its method was superior, this finding was unnecessary to the judgment. Regardless of which method was theoretically superior, the trial court was bound to uphold the appraiser’s determination if it was lawfully arrived at and within the range of reasonable appraisals, that is, if it was supported by any reasonable hypothesis of legality.

Like the trial court, the district court addressed the merits of the question of which method was theoretically superior, and simply disagreed with the trial court’s determination. Although the trial court’s determination was based in part on a finding that the property appraiser’s method was the better one, the judgment should have been affirmed simply on the ground that the property appraiser’s determination, having been lawfully arrived at and being supported by a reasonable hypothesis of correctness, was properly upheld. Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla. 1969). The size or scope of the sales market for Xerox copying machines should not have been regarded by the district court as determinative. The trial court found that there was a sufficient sales market to render the appraiser’s method reasonable.

The courts of other jurisdictions have disagreed among themselves on the question of the theoretical correctness of the two valuation methods. See, e.g., Xerox Corp. v. Board of Tax Review, 175 Conn. 301, 397 A.2d 1367 (1978); Xerox Corp. v. Board of Review, 298 N.W.2d 416 (Iowa 1980); Xerox Corp. v. County of Hennepin, 309 Minn. 239, 244 N.W.2d 135 (1976); Xerox Corp. v. City of Jackson, 328 So.2d 330 (Miss.1976); Xerox Corp. v. King County, 94 Wash.2d 284, 617 P.2d 412 (1980). These cases arose in various factual and procedural settings and to the extent they addressed the question of which of the two methods is fairer or more theoretically accurate, they are inapposite to the questions presented in the instant case. To reiterate, the only questions presented by the instant case are whether the appraiser considered all factors mandated by the law and whether his methods and conclusion are supported by any reasonable hypothesis of a legal assessment.

The district court may have been correct in concluding that the income capitalization method was the better method for determining market value, but that was not the legal question presented.

We therefore quash the decision of the district court of appeal and remand with instructions to affirm the judgment of the trial court.

It is so ordered.

ALDERMAN, C.J., and McDONALD, EHRLICH and SHAW, JJ., concur.

OVERTON, Justice,

dissenting:

I find no conflict jurisdiction and would consequently deny this petition for review.

      . Section 193.011 provides as follows:
      In arriving al just valuation as required under s. 4, Art. VII of the State Constitution, the property appraiser shall lake into consideration the following factors:
      (1) The present cash value of the property, which is the amount a willing purchaser would pay a willing seller, exclusive of reasonable fees and costs of purchase, in cash or the immediate equivalent thereof in a transaction at arm’s length;
      (2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the Governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law;
      (3) The location of said property;
      (4) The quantity or size of said properly;
      (5) The cost of said property and the present replacement value of any improvements thereon;
      (6) The condition of said property;
      (7) The income from said property; and
      (8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing, and allowance for unconventional or atypical terms of financing arrangements.

      . An appellate court should affirm a judgment brought to it for review if the judgment is correct, even where the trial court has not correctly slalcd all the legal reasons sustaining the judgment. Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962).


author: SHAW, Justice. ALDERMAN, Chief Justice,

text:
    James W. JENNY, Petitioner, v. STATE of Florida, Respondent.
    No. 63279.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied May 2, 1984.

      Loren H. Cohen and Max B. Kogen, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Marlyn J. Altman and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for respondent.
   SHAW, Justice.

We have before us by petition for review State v. Jenny, 424 So.2d 142 (Fla. 4th DCA 1982), a decision which expressly affects the state attorneys, a class of constitutional officers. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner was served with a subpoena on October 15, 1980, which commanded him to appear before the state attorney to testify that same morning. He was questioned regarding the transaction for which he was later charged. Petitioner’s motion to dismiss two counts of the information because they related to his subpoenaed testimony before the state attorney was granted. The district court reversed, finding that section 914.04, Florida Statutes (1979) did not confer immunity in the absence of petitioner’s having asserted his privilege against self-incrimination and the state having compelled his answer over his objection. We quash the decision of the district court.

Section 914.04, Florida Statutes (1979) provides:

Witnesses; person not excused from testifying in certain prosecutions on ground testimony- might incriminate him; immunity from prosecution. — No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to. convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence,' documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.

By its very plain meaning, the statute is self-executing. The statute automatically grants use and transactional immunity to one who testifies under the circumstances it delineates. There is no requirement that a person must invoke the privilege against self-incrimination in order to be granted immunity. Had the legislature so desired, it could have included such a provision. We will not rewrite the statute. Where a statute is unambiguous and clear upon its face, courts must accord the statute its plain meaning and are not free to construe it otherwise. Carson v. Miller, 370 So.2d 10 (Fla.1979); Heredia v. Allstate Insurance Co., 358 So.2d 1353 (Fla.1978).

The decision of the district court is quashed with directions to reinstate the trial court’s order dismissing the counts relating to the transaction about which petitioner was subpoenaed to testify before the state attorney.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

ALDERMAN, C.J., dissents with an opinion, in which EHRLICH, J., concurs.

ALDERMAN, Chief Justice,

dissenting.

I would approve the decision of the District Court of Appeal, Fourth District, which reverses the trial court’s order granting defendant’s motion to dismiss two counts of the information.

The Fourth District correctly held that section-914.04, Florida Statutes (1979), did not confer transactional or use immunity on the defendant in the absence of his having asserted his privilege against self-incrimination and in the absence of the state’s having compelled his answer over his objection. It further correctly held that the state’s failure to first advise defendant of his right against self-incrimination did not relieve him of the necessity to assert this right.

Section 914.04 is not self-executing upon the issuance of a subpoena and nonprotest-ing compliance with the subpoena by the witness’s attendance. To gain the immunity provided by this state, the subpoenaed witness must assert his privilege against self-incrimination. When he asserts this privilege but is still compelled to furnish incriminating evidence, his answers then may not be used against him in a subsequent criminal prosecution.

EHRLICH, J., concurs.

       Section 914.04 was amended in 1982 to delete the provision regarding transactional immunity.


author: OVERTON, Justice.

text:
    Robert John BRENNAN, Petitioner, v. STATE of Florida, Respondent.
    No. 62533.
    Supreme Court of Florida.
    March 22, 1984.

      Jerry Hill, Public Defender and W.C. McLain, Asst. Public Defender, Chief, Capital Appeals, Tenth Judicial Circuit, Bartow, for petitioner.
    Jim Smith, Atty. Gen., and David T. We-isbrod and Robert J. Krauss, Asst. Attys, Gen., Tampa, for respondent.
   OVERTON, Justice.

We accepted jurisdiction in this case having found conflict between the district court’s decision, cited as Brennan v. State, 417 So.2d 1024 (Fla. 2d DCA 1982), and this Court’s decision in State v. Brady, 406 So.2d 1093 (Fla.1981), cert. granted, 456 U.S. 988, 102 S.Ct. 2266, 73 L.Ed.2d 1282 (1982). After receiving briefs on the merits and hearing oral argument, we conclude that no conflict was created by the district court’s decision. The district court found that petitioner did not have a reasonable expectation of privacy in his marijuana patch and that evidence obtained by police observation was admissible under the “open fields” doctrine. Here, there was insufficient external manifestation of privacy exhibited by petitioner in the marijuana patch, as required by Brady and DeMontmorency v. State, No. 61,179 (Fla. Oct. 28, 1982) (rehearing pending). Both Brady and DeMontmorency are factually distinguishable from the instant case, and no conflict arises.

For the reasons expressed, we dismiss this case for lack of jurisdiction.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. John R. McARTHUR, Respondent.
    No. 63354.
    Supreme Court of Florida.
    March 22, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    John R. McArthur, Lakeland, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against John R. McArthur, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of referee. Pursuant to the Florida Bar Integration Rule, article XI, Rule 11.-06(9)(b), the referee’s report and record were duly filed with this Court. No petition for review pursuant to the Florida Bar Integration Rule 11.09(1) has been filed.

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

As to Count I
I recommend the respondent be found guilty and specifically that he be found guilty of violating the following Disciplinary Rules of The Florida Bar’s Code of Professional Responsibility: 2-110(A)(2) for withdrawing without taking steps to protect the client, 6-101(A)(3) for neglecting a legal matter entrusted to him, 7-101(A)(1) for intentionally failing to seek his client’s lawful objectives, 7 — 101(A)(3) for intentionally failing to carry out a contract of employment, 7-101(A)(3) for intentionally prejudicing or damaging his client. I recommend he be found not guilty of violating Disciplinary Rule 1-102(A)(4) for misrepresentation.
As to Count II .
I recommend the respondent be found guilty and specifically that he be found guilty of violating Rule 11.02(4) of Article XI of the Integration Rule for misusing trust funds, and the following Disciplinary Rules of The Florida Bar’s Code of Professional Responsibility: 2-110(A)(3) for withdrawing from employment without taking steps to protect the client, 6-101(A)(3) for neglecting a legal matter entrusted to him, 7-101(A)(l) for intentionally failing to seek the lawful objectives of his client, 7-101(A)(2) for intentionally failing to carry out a contract of employment, 9-102(A) .for commingling, 9 — 102(B)(3) for failing to account and 9-102(B)(4) for misusing that portion of the funds tendered to him for costs.

The referee recommends that respondent be suspended for a period of six months and thereafter until he shall prove his rehabilitation as provided in Integration Rule 11.10(4).

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

Accordingly, respondent, John R. McAr-thur, is hereby suspended from the practice of law in the State of Florida for a period of six months effective immediately, and thereafter until he shall prove his rehabilitation.

Costs in the amount of $571.47 are hereby taxed against respondent.

It is so ordered.

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