author: BOWEN, Presiding Judge.

text:
    Rayford CONNOR v. STATE.
    1 Div. 607
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied Jan. 31, 1984.
    Certiorari Denied March 23, 1984 Alabama Supreme Court 83-527 and 83-528.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

On this appeal, Rayford Connor, the appellant, argues (1) that his probation was improperly revoked, (2) that he should have been granted a continuance of his trial for burglary, and (3) that the trial judge improperly allowed the indictment to go into the jury room during the deliberation of the jury.

In March of 1982, Connor pled guilty to seven cases of possession of a forged instrument in the second degree. He was given a split sentence and ordered to serve one year with the remaining five years on probation.

In December of 1982, the State moved to revoke Connor’s probation for a burglary he committed in October of 1982. The revocation was originally scheduled for February and counsel was appointed. However, the hearing was reset five times. The trial judge found that four of these times were “either because the Defendant or the Defendant’s attorney was not prepared, the Defendant’s attorney had another matter pending, or whatever.”

On March 11, 1983, the Grand Jury returned an indictment against Connor for Burglary III. This indictment was based on the same incident contained and detailed in the delinquency report filed in December.

Finally, the revocation hearing was scheduled for March 17th. On that day, the defendant was arraigned on the burglary charge, entered a plea, and was tried and convicted by a jury. The trial judge then revoked the probation and ordered a presentence investigation. In April, Con-nor was sentenced as an habitual offender to fifteen years’ imprisonment.

On March 17th, when defense counsel discovered that Connor was going to trial, he requested a continuance “because the Defendant had not been arraigned.” In response to this, the trial judge found: “Clearly he has known since February 2, 1983, of this case, because that is the date the original motion to revoke was filed. It was understood by everyone that today the motion to revoke would be confessed, as well as there would be a plea in this particular case. However, the Defendant was advised that he does not wish to do that.” The judge then arraigned Connor. Connor pled “not guilty by reason of entrapment” and the trial judge read the indictment. The judge also stated that he had told defense counsel about the indictment six days earlier.

Defense counsel requested “a reset that we may discover any matters that are discoverable.” In response, the judge ordered the district attorney to give defense counsel his “whole file”.

Although Connor was represented by appointed counsel, defense counsel requested additional time to allow Connor “to perhaps hire an attorney of his own choosing.” This was denied and Connor was put to trial.

The State’s case was very brief and consisted of the testimony .of the owner of St. Stephens Pharmacy, who merely established the fact that the pharmacy had been broken into, and the arresting officer who observed Connor “behind the counter at the cigarette rack taking cartons of cigarettes and placing them in a box.” In the box the officer also found a crowbar.

After the State rested, the trial judge, at the request of defense counsel, issued a subpoena for co-defendant Leslie Fisher. While waiting on this witness to arrive, defense counsel informed thé judge that he had advised Connor that it was against his better judgment for his client to go to trial, that it “was in his best interest to both confess the revocation and accept (the) offered plea bargain”, and that Connor had “insisted on going to trial” despite the fact that counsel had advised Connor of “the perhaps insufficiency of the defense which he discussed with me.”

Defense counsel talked with the co-defendant and then released him as a witness. Counsel then requested a continuance alleging that he had not had “ample or enough time to research or talk with any of the witnesses that might be available.” Under questioning by the trial judge, defense counsel admitted that he did not know what witnesses he might need or that might be available; and that he had asked his client and still had no knowledge of any witness that would be beneficial to the case. The judge stated: “You know, if he (Connor) doesn’t know of any — I’ll be happy to issue an instanter for anybody you want to issue, but he’s told you there’s not any.”

The defense rested without presenting any evidence. After the jury found Connor guilty, the judge revoked his probation and ordered a presentence investigation. There was no motion for new trial.

I

Connor argues that the fundamental fairness guarantees of due process were violated by the manner in which his probation was revoked. He maintains that he was entitled to a revocation hearing as required by Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

Armstrong is grounded on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which held that parole revocation requires “an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” 408 U.S. at 484, 92 S.Ct. at 2601. The principles outlined in Morrissey were applied to probation revocation hearings by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Here, we find substantial compliance with Armstrong. Instead of having a probation revocation hearing at which the court would not be bound by strict rules of evidence and the State’s evidence need only reasonably satisfy the trial judge, Connor was tried on the indictment for the criminal offense which was the basis of the delinquency report. This was more than due process requires to revoke his probation. “(N)either our statute, ... nor the Constitution requires a final conviction of probationer on the offense charged before his probation may be revoked.” Free v. State, 392 So.2d 857, 859 (Ala.Cr.App.1980), cert. denied, Ex parte Free, 392 So.2d 859 (Ala.1981).

In Moss v. Patterson, 555 F.2d 137 (6th Cir.), cert. denied sub nom. Kette v. Moss, 434 U.S. 873, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977), the appellant’s parole was revoked after he pleaded guilty to several charges. The Sixth Circuit Court of Appeals reversed on the grounds that the appellant was not given an opportunity to present evidence in mitigation as required by Mor-rissey, supra. The situation in the present case, however, is markedly different. Con-nor did not plead guilty to the burglary charge. He was given a full trial and could have presented evidence in his defense or as mitigation. Moreover, he has not at any time asserted that he has any evidence to present in mitigation. See Jamerson v. State, 394 N.E.2d 222 (Ind.App.1979).

To remand this case for a revocation hearing would accomplish nothing. It would not provide Connor with any right or opportunity to exercise any right which he has not already had, such as an opportunity to present evidence in mitigation. Under the facts of this case, we find that the manner in which Connor’s probation was revoked did not violate the fundamental fairness guarantees of due process.

II

It is also argued that the trial judge abused his discretion in denying a continuance. The trial judge is characterized as having exercised a “roughshod manner ... in refusing to continue the trial ... pending discovery of any and all exculpatory material ..., or the location of any and all witnesses who could aid in the presentation of the complex defense such as entrapment.”

“The reversal of a conviction because of the refusal of the trial judge to grant a continuance requires ‘a positive demonstration of abuse of judicial discretion.’ Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671, 672 (1969).” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, Ex parte Beauregard, 372 So.2d 44 (Ala.1979). “This Court must determine whether or not there has been an abuse of discretion in light of the circumstances of each case, looking particularly to those reasons the defendant presented to the trial judge.” Tucker v. State, 429 So.2d 1165, 1169 (Ala.Cr.App.1983).

Connor’s reasons for requesting the continuance were to engage in discovery and to locate witnesses. However, defense counsel’s assertion that he had advised the defendant that it was in the defendant’s best interests to “both confess the revocation and accept (the) offered plea bargain in this matter” certainly suggests that counsel had engaged in some investigation of the burglary charge. Neither counsel nor Connor has at any time asserted that there exists any additional evidence which would be material and competent or any witnesses to find.

In view of the facts that the trial judge made the prosecution disclose its entire file to defense counsel, that Connor indicated at trial that he had no knowledge of any potential witness, and that the trial judge afforded counsel every opportunity to subpoena any witness he might have, we find no abuse of the discretion of the trial judge in denying the continuance. The speculative allegations of defense counsel regarding the possible existence of potential witnesses or evidence are insufficient to show that the trial judge abused his discretion.

We do not wish to intimate by what we have said here that we approve of the manner in which this case was handled. Connor appeared in court for a scheduled probation revocation hearing and instead was tried on the underlying burglary charge. We find, however, that he was in no way prejudiced by this action under the circumstances involved. Connor was fully aware of the facts upon which the burglary charge was based, for they were clearly set forth in the motion to revoke probation which was served upon-him February 11, 1983. Any evidence the defendant could have offered to prove the defense of entrapment could also have been used to show mitigation at the revocation hearing and the defendant had had since February 11 to prepare that evidence. Further, the State presented only two witnesses, who were obviously the same witnesses it would have called at the revocation hearing and who testified to essentially the same information contained in the motion to revoke probation. In all honesty, we conclude that there was little the defendant could offer to combat the overwhelming evidence presented by the State. Cf Williams v. State, 356 So.2d 216 (Ala.Cr.App.1977), cert. quashed, 356 So.2d 219 (Ala.1978) (the trial court did not err in ordering trial for sale of marijuana prior to trial for possession of marijuana, even though the possession case appeared on the docket ahead of the sale case and the defendant desired to try the possession ease first, where the defendant was prepared as well as he could be for the sale case and there was no showing of any prejudice to the defendant).

Ill

The trial judge deliberately allowed the indictment to go into the jury room during the deliberation in violation of A.R. Crim.P.Temp. 14. See Ex parte Allen, 414 So.2d 993, 995 (Ala.1982). We find that this action was invited by defense counsel who in his closing argument to the jury stated, “by way of explanation as to why this trial perhaps has been haphazard or the defense been so slack in this case, it is because the Defendant was only served with his indictment this morning.”

In charging the jury, the trial judge instructed:

“Under our new rules the indictments are not supposed to go back to the jury room with you, but I’m going to let this indictment go back to the jury room with you. It sets out again what he’s charged with. In addition, it sets out the day on which I signed the indictment in this case and I told you that this morning when I read the indictment to you. When you get back in the jury room, read the indictment and that’s the charge. Down here it will show the date that I signed the indictment as the Judge in charge of this Grand Jury, and the date is March 11, 1983. Nobody is trying to hide anything in the world in this case at all.”

The indictment itself merely stated the charge. It contained no prejudicial allegations. Only one alias was alleged, that being “Rayford Conner.” Rule 14 provides that “the court may, in its discretion, submit the charges to the jury in a complex case.” The comment following this rule explains: “The rule, therefore, allows the judge the discretion to give the jury a copy of the charges when he feels it would be helpful to do so.” Allen, 414 So.2d at 996. Since the trial judge had a specific reason for permitting the indictment to go to the jury and since that indictment was not unnecessarily prejudicial, we find no abuse of discretion and no error in the judge’s action.

Our review convinces us that this case is due to be affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    John WEBB, alias v. STATE of Alabama.
    3 Div. 797.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.

      Charles P. Hollifield of Hollifield & Holli-field, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

John Webb was indicted for theft of property in the first degree, in violation of § 13A-8-3, Code of Alabama 1975, and for burglary in the third degree, in violation of § 13A-7-7, Code of Alabama 1975. The jury found the appellant guilty of both charges. The trial court sentenced him to 10 years’ imprisonment on each charge, said sentences to run concurrently, and ordered the appellant to make restitution in the amount of $100.00.

Appellant’s counsel submitted a motion to suppress a statement made by the appellant, while in custody, prior to trial. The trial judge held a hearing on the motion to suppress during the trial, but outside the presence of the jury.

Corporal E.R. Crew of the Montgomery Police Department testified he was working as an investigator on December 5, 1982. He stated that in the early morning hours he was called to investigate a burglary and theft at Harper-Lee Machinery Company. In his investigation he met with John Webb, who had been arrested for the offense, in the Montgomery Police Headquarters at approximately 1:00 a.m. He testified that he advised the appellant of his constitutional rights with the standard Miranda rights form and that the appellant refused to sign the form. He further stated that the appellant refused to talk with him about the case. Officer Crew also testified that he was called out on another investigation at 1:42 a.m. and that he left the appellant at that time and did not return until approximately 7:00 a.m. the same morning. He stated that upon his return, he observed Officer Grimsley taking a statement from the appellant.

Officer J.T. Collier testified that he was working investigation on December 5,1982, along with Officer Crew. He stated that he was responsible for inventorying the property taken from Harper-Lee Machinery. He stated that he was in the process of the inventory when Officer Crew was called out on another investigation. He further testified that he was there when Officer Grimsley arrived. Collier testified that no one else talked with the appellant between the time Officer Crew talked with him and Officer Grimsley’s arrival.

Officer Jeff Grimsley testified that on the morning of December 5, 1982, he had gone to the investigative department to talk with a Sergeant about a transfer. He stated that upon entering the department, he saw John Webb and went in to talk to him about why he was there. Upon the appellant’s advising him of the reason he was there, Officer Grimsley stated that he asked Officer Collier about why he was there and was informed of the charges and that the appellant had refused to talk to them. He stated that he went back to see the appellant again and asked him if he would talk to him since the appellant knew him. He further testified that the appellant said he would. He stated that he read the appellant his Miranda rights and that the appellant signed the waiver of rights form. He further stated that he in no way threatened, forced, coerced or induced the appellant into making a statement, and that he did not promise any benefits to him if he would talk to him. He stated that the appellant then proceeded to give him a confession which was typed and signed by the appellant.

On cross-examination, Officer Grimsley testified that he did not recall telling the appellant that it would look better for him if he would give a statement, but that it was possible that he could have done so.

The appellant, John Webb, testified that, after his arrest, and upon being read his constitutional rights at police headquarters, he told the officers he did not want to make a statement and requested an attorney. He stated that at this time the officers ceased their interrogation. He further stated that a police call came in and Officer Crew left to investigate that call, but returned approximately thirty minutes later and began interrogating him again. John Webb testified that at this point Officer Crew struck him and left. He stated that after this he was left alone until Officer Grimsley came in and asked him why he was in the station. He stated that Officer Grimsley then left the room, came back in a few minutes and asked whether he wanted to talk about the case. He stated that he gave Officer Grimsley a negative reply and Officer Grimsley left the room. He stated that the officer returned once again and made the statement that it would look better for him if he made the statement. He stated that at this point he decided it would be better to talk to Officer Grimsley, to “get it over with”.

The trial court denied the motion to suppress the confession.

I

The sole issue on appeal is the voluntariness of the confession made by the appellant while in custody. The appellant contends that the trial court erred in admitting the confession into evidence. Specifically, the appellant argues (1) he was coerced into making a statement, and (2) he requested counsel and the officers did not obtain counsel for him.

(A)

When the evidence on the circumstances surrounding the appellant’s confession is conflicting on voir dire, the trial judge must determine its admissibility. If admitted, then the controverted testimony for the defendant goes to the jury on the confession’s credibility. Where the trial judge finds on conflicting evidence that the confession was voluntarily made, its finding will not be disturbed on appeal unless found to be manifestly contrary to the great weight of the evidence. Harris v. State, 420 So.2d 812 (Ala.Cr.App.1982); Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981); Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.), cert. denied, 339 So.2d 1070 (Ala.1976); Taylor v. State, 337 So.2d 1368 (Ala.Cr.App.1976). In this cause, the trial judge held the appellant’s confession to be voluntary and admissible and this decision was not contrary to the great weight of the evidence. Wiggins v. State, 440 So.2d 1164 (Ala.Cr.App.1983).

(B)

Moreover, the appellant’s contention that he was coerced into making the confession by Officer Grimsley’s alleged statement that it would look better for him if he made a statement, thus rendering the confession involuntary lacks merit in this cause. “A policeman’s advice or exhoration to an accused ... to tell the truth or that it would be better to tell the truth, unaccompanied by threat or promise, does not render involuntary the subsequent confession.” Parker v. State, 351 So.2d 927 (Ala.Cr.App.), writ quashed, 351 So.2d 938 (Ala.1977); Raines v. State, 428 So.2d 206 (Ala.Cr.App.1983).

The instant case is not affected by the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as the facts do not support any claim that the appellant requested counsel prior to making his confession.

This record is free of error. The judgment of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Alton Ray PICKENS v. STATE of Alabama.
    8 Div. 936.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Bryce U. Graham, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Alton Ray Pickens was convicted of theft of property in the second degree. The appellant was given due notice that the State intended to proceed under the Habitual Felony Offender Act and a sentencing hearing was held at which the appellant was sentenced to 25 years’ imprisonment.

On the night of August 13, 1982, Mr. Edward Allen observed a dark green car being loaded with two camper shells. He followed the path of this car and subsequently observed the tail lights of an automobile light up beside the appellant’s residence. He then notified the police. Police officers subsequently heard the sound of metal being knocked about coming from the location of the appellant’s residence. Officer Williford then observed the appellant enter the back door of his residence. He also observed a dark green car and two camper shells leaning against the side of the residence. The appellant was then arrested and the officers observed scratches on the car. The camper shells were subsequently identified by the rightful owners as having been taken from their business.

I

On appeal, appellant’s counsel has raised a number of issues for this court to consider involving the constitutionality of the Habitual Felony Offender Act, as applied to the appellant, in view of the recent United States Supreme Court decision in Solem, Warden v. Helm, 1983, - U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637. He also argues that the State did not present a prima facie case as required by law.

This court has repeatedly held that the Habitual Felony Offender Act is not violative of the United States Constitution and does not constitute cruel and unusual punishment. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.), cert. denied, 392 So.2d 1280 (Ala.1980); Jackson v. State (1983) 440 So.2d 1181; Weaver v. State (1983) 437 So.2d 626; Campbell v. State (1984) 444 So.2d 913. As required by Solem, we have considered the proportionality of the punishment herein expressed, both in light of the appellant’s prior record and the length of the sentence for the offense for which the appellant has been convicted. The appellant’s prior offenses were: (1) Burglary, second degree; receiving and concealing stolen goods; (2) Burglary, second degree; (3) Robbery, grand larceny; (4) Burglary of a motor vehicle, grand larceny, buying, receiving and concealing stolen property, and (5) Burglary, second degree, grand larceny, receiving and concealing stolen goods. Solem furnishes no authority for disturbing the sentence in this cause, its light in fact leads us in the opposite direction.

II

The State of Alabama properly-presented a prima facie case as required by law. Even though there was some circumstantial evidence, it was properly submitted to the jury for their determination. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied 368 So.2d 877 (Ala.1979); Rainer v. State, 398 So.2d 771 (Ala.Cr.App.1981).

We have carefully examined the record and in view of the foregoing principles of law, we find no cause for reversal.

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

AFFIRMED.

All the Judges concur.


author: BOYD, Justice.

text:
    Kenneth GRIFFIN, Appellant, v. STATE of Florida, Appellee. Kenneth GRIFFIN, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    Nos. 65014, 65016.
    Supreme Court of Florida.
    March 16, 1984.
    Robert LoBue of Patterson, Belknap, Webb & Tyler, New York City, and John D. Middleton, Gainesville, for appellant/petitioner.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton and Gregory C. Smith, Asst. At-tys. Gen., Tallahassee, for appellee/respon-dent.
   BOYD, Justice.

These proceedings are before the Court on appeal from a circuit court order denying Kenneth Griffin’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and upon Griffin’s petition for a writ of habeas corpus. Griffin is a state prisoner held under two sentences of death. We have jurisdiction of his appeal and petition. Art. V, § 3(b)(1) & (9), Fla. Const. We affirm the order denying post-conviction relief and we deny the petition for writ of habeas corpus.

Appellant’s convictions on two counts of first-degree murder and his two sentences of death imposed therefor were affirmed on appeal by this Court. Griffin v. State, 414 So.2d 1025 (Fla.1982). He moved for post-conviction relief in the trial court on numerous grounds based on the following asserted infirmities or defects: (1) lack of effective assistance of counsel at trial; (2) improper dismissal of a prospective juror at trial; (3) error in the instructions given to the jury at the trial; (4) prosecutorial misconduct in inflaming and misleading the jury; (5) systematic exclusion of black citizens from the venire from which the jurors were chosen; (6) erroneous instruction to the jury that it could consider both premeditation and felony-murder theories on both counts when there was no evidence of premeditation on one of the murders; (7) arbitrariness in sentencing appellant to death; and (8) a pattern of racial disparity in the prosecution, trial, and sentencing of capital offenders in Florida.

The trial judge found appellant’s motion to vacate, set aside, or correct the conviction and sentence to be insufficient on its face to state a claim for relief. However, the judge announced his intention to hold a hearing and allow the presentation of evidence as to the claim of ineffective assistance of counsel only. The claim of ineffective assistance of counsel set forth in the motion consisted of forty-eight asserted “failures and inadequacies.” After the evi-dentiary hearing, the trial judge made findings of fact on each of the allegations of ineffective assistance. The trial judge found all the alleged deficiencies to be either factually unsupported or legally inconsequential.

We find that the trial court’s denial of relief, without evidentiary hearing, on all grounds other than ineffective assistance of counsel, was correct. We also find the trial court’s findings regarding ineffective assistance of counsel were supported by the evidence adduced at the hearing. The trial court’s order, which we affirm, is appended to this opinion.

In his petition for writ of habeas corpus, Griffin argues that he was not afforded effective assistance of counsel in pursuing his appeal previously decided by this Court. The petition identifies four issues which appellate counsel did not argue to this Court and which petitioner maintains should have been argued.

Petitioner argues that a prospective juror was excused for expressing mere scruples about capital punishment, which would not have prevented him from serving as an impartial juror, and that the juror’s dismissal was therefore improper under the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The following is a direct quote from the trial court record:

MR. HERBERT: Okay. You could vote guilty but you don’t think you could ever recommend the death penalty to the Court no matter what the circumstances?
PROSPECTIVE JUROR FAYSON: I don’t think I could.
MR. HERBERT: Okay. Could you vote guilty if you felt the rest of the jury was going to recommend the death sentence? By that I mean, could you still vote guilty even though the rest of the jury was going to recommend the death penalty in your mind?
PROSPECTIVE JUROR FAYSON: And could I vote guilty? I doubt it. I doubt it very much.
THE COURT: I believe I heard him say in response to the question just before the challenge was made, that if he found himself in the position where if voting guilty he knew that the others would then vote to recommend the death penalty, that he would not vote to convict.
I believe that is what you said, isn’t it, Mr. Fayson?
PROSPECTIVE JUROR FAYSON: Yes, sir.

Considering the totality of the questions and answers put to this juror, appellate counsel could have reasonably concluded that Witherspoon offered no relief.

Petitioner contends that appellate counsel should have argued that the trial court had erred in instructing the jury on felony murder because a first-degree felony murder conviction was improper under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Petitioner’s argument misapprehends the holding of the United States Supreme Court in En-mund. There was no error in instructing the jury on first-degree felony murder.

Petitioner contends that his appellate counsel was defective in failing to argue that the trial court had erred in not instructing the jury on second-degree felony murder, which petitioner characterizes as a lesser included offense upon which there was some evidence. The record shows that appeal counsel in fact did present arguments to this Court on the lack of instructions on all degrees of homicide. Petitioner’s argument is without merit because, in light of the statutory definition of second-degree felony murder applicable at the time of the crime, there was no evidence to support the instruction petitioner now says should have been given. See Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977).

Petitioner contends that appellate counsel was defective in not raising the issue of inflammatory and misleading statements by the prosecutor. We do not find the cited utterances of the prosecutor to have been of such magnitude as to require that appellate counsel either raise them or be labelled ineffective.

For the foregoing reasons, and for the reasons stated in the attached order of the trial court, we affirm the trial court’s order and deny the petition for habeas corpus.

It is so ordered.

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

IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR BRADFORD COUNTY, FLORIDA

STATE OF FLORIDA, Plaintiff, v. KENNETH GRIFFIN, Defendant.

CRIMINAL ACTION NO. 78-178-CF

ORDER DENYING AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT CONVICTION AND SENTENCE AND ORDER A NEW TRIAL

Defendant, Kenneth Griffin, based on a jury recommendation to impose death in each of two counts of murder, was sentenced to death by the undersigned trial judge on April 19, 1979. A unanimous decision affirmed the judgments and sentences, Griffin v. State, 414 So.2d 1025 (Fla.1982).

The Honorable Bob Graham, Governor of the State of Florida, on February 21, 1984 issued a Death Warrant effective for the week beginning March 16, 1984. The date of execution of the death sentences is now set for March 20, 1984.

This cause is before the Court on an Amended Motion to Vacate, Set Aside or Correct Conviction and Sentence and Order a New Trial. At the request of defendant, an evidentiary hearing was held on March 13, 1984 on the claim of ineffective assistance of trial counsel, Mr. Leonard E. Ireland, Jr., of Gainesville, Florida.

Mr. Ireland, an outstanding member of the local Bar, and a private practitioner with one of the oldest and best law firms in this area, was appointed by another Circuit Judge previously assigned to this case to represent defendant Griffin upon a certification of conflict by the public defender who had previously represented Willie James Bryant, one of three participants in these murders. Bryant had been granted immunity by the State and testified at the trial. Another outstanding private attorney, Mr. Michael L. Bryant, was appointed to represent the co-defendant, Robert John Hinson, who was severed from this trial March 8, 1979. A nolle prosequi of the charges against Hinson was entered by the State on April 9, 1979.

The undersigned, as trial judge, entered judgment and sentences of death for defendant, Griffin, on April 19, 1979. His trial counsel, Mr. Ireland, also handled the appeal resulting in affirmance by the Supreme Court of Florida. Mr. Ireland asked to be relieved as counsel following the Supreme Court decision, and the undersigned sought and secured another capable and experienced attorney, a former public defender, Mr. Thomas J. Farkash, to represent defendant Griffin to pursue his ease through clemency proceedings by Order entered November 2, 1982. Defendant, Griffin, asked the Court to reconsider such appointment of Mr. Farkash, advising that he had secured “volunteer counsel”, Mr. Mel Lamelas of Miami, and an Order so relieving Mr. Farkash was entered November 24, 1982. The undersigned declined the request of Mr. Lamelas to be appointed as special public defender for defendant Griffin because of unfamiliarity with Mr. Lamelas. (Letter dated 12/14/82 from Court to Mr. Lamelas.)

Mr. Lamelas proceeded as volunteer counsel to represent defendant, Griffin, and he filed a Motion to Vacate, Set Aside or Correct Conviction and Sentence on April 20, 1983, but he never asked that such Motion be heard, he did not send the undersigned a copy of such Motion or advise that such Motion had been filed, and the undersigned was completely unaware that such Motion existed until just prior to the issuance of the Governor’s Death Warrant on February 21, 1984.

Upon issuance of the Death Warrant, said Motion was set for hearing March 6, 1984. At the. March 6, 1984 hearing, Mr. John D. Middleton of the local Bar, filed an Amended Motion to Vacate, Set Aside or Correct Conviction and Sentence and Order a New Trial, a Motion for an Evidentiary Hearing and Production of Defendant at the Hearing, an Application for Stay of Execution, a Motion for Continuance, and Motions to admit Messrs. Donald Baer and Frederick T. Davis of the New York Bar as counsel pro hac vice to represent the defendant. After some preliminary discussion the hearing at the Bradford County Courthouse was recessed by the Court to reconvene at Florida State Prison in order that the defendant could assure the Court of his wishes regarding his counsel. The hearing reconvened at 11:00 a.m., at Florida State Prison March 6, 1984. Mr. Lame-las appeared and sought permission to withdraw as counsel with defendant’s consent, which the Court refused, but the Court authorized with defendant’s consent the appearance pro hac vice of Messrs. Baer and Davis to also represent defendant, together with Mr. Middleton and Mr. Lamelas.

Although the Court made no rulings on the merits of the Motion or Amended Motion to Vacate, etc., against the urging of the State, the Court announced that it would grant an evidentiary hearing on the matters raised in said Motion pertaining to the allegations of ineffective counsel. Defendant’s counsel and the State sought a continuance of such evidentiary hearing, and such evidentiary hearing was then set for 9:00 a.m., March 13, 1984.

Because the Amended Motion to Vacate, etc. filed March 6, 1984, was couched only in general and vague language in its allegations of ineffective trial counsel, and in argument presented it appeared that the specific matters claimed to support such allegations were those recited in the previous Motion of similar import filed April 20, 1983, the Court directed counsel to file a bill of particulars to specifically set out those matters complained of as required by Knight v. State, 394 So.2d 997 (Fla.1981). The Court directed such filing to be accomplished by not later than March 9, 1984 at 9:00 a.m., and also set a hearing at that time to argue legal questions relating to such Motion and to determine the specific matters on which evidence would be permitted at the hearing on March 13, 1984.

The Application for Stay of Execution was denied March 6, 1984, on March 9, 1984 another Application for Stay of Execution was orally made and denied, and such Motion was renewed and denied during the hearing March 13, 1984.

At the March 9, 1984 hearing defense counsel filed a Supplement to Amended Motion Pursuant to Florida Rules of Criminal Procedure 3.850, a Memorandum of Law in Support of Amended Motion to Vacate, Set Aside and Correct Conviction and Sentence and Order a New Trial, and an Appendix to said Motion. Following argument of counsel and consideration by the Court the Court announced its ruling on the record at such hearing to permit presentation of evidence on the claims of ineffective trial counsel as claimed on pages 8 through 19 of the above referred to Memorandum. The Court heard argument presented on the other points raised, but denied relief on all other grounds stated.

The Court is keenly aware of the time constraints imposed in this case and the ultimate penalty to be paid if relief is not granted. No satisfactory explanation has been presented as to why the April 29,1983 Motion to Vacate, etc. was not brought to the Court for consideration, but adequate and ample opportunity to be fully heard has now been afforded, even though both the original and amended Motions to Vacate are facially deficient under the requirements of Knight v. State, 394 So.2d 97 (Fla.1981) and Washington v. Strickland, 693 F.2d 1243 (5th Cir. en banc 1982). This Court has attempted to heed the admonition of the Florida Supreme Court in Jones v. State, 446 So.2d 1059 (Fla.1984) and afford defendant an opportunity to be heard.

Before addressing the specific matters raised at the March 13, 1984 hearing, and although my concerns may have little effect in this or other similar cases, I wish to express a sincere and grave concern that I face as a trial judge. I have dedicated a career to the law extending over 36 years, first as a trial lawyer and more recently as a trial judge. I have previously defended indigent clients under appointment as private counsel by the Court, including those charged with First Degree Murder, and as a trial judge feel a keen responsibility to see that competent counsel is afforded every person charged with crime. Although the constitutional guarantees of competent and effective assistance of counsel should be always subject to appropriate review when there is a substantial reason for such review, the practice during recent years has been permitted to develop to the extent that a charge of ineffective assistance of counsel is brought as a matter of course and routine in almost every case where a result is encountered unfavorable to an accused. Notwithstanding numerous pronouncements by appellate courts that the review of counsel’s performance is not to be viewed with “20-20 hindsight,” the initial charges made by those asserting such claims of ineffectiveness is always made with “20-20 hindsight” and in possession of a complete record for review to form the basis for study and deliberate dissection and “second-guessing”. Of course, where a life is at stake, more concern must be given when charges of ineffective counsel are made, but in such cases, a trial judge has the initial responsibility of securing competent counsel in the first place, and often outside the office of the public defender. I am perplexed by the fact, that a chilling effect is had on very able private practitioners who will not allow themselves to be so publicly attacked and ridiculed and their reputations tarnished by such after the fact allegations of incompetence that understandably receive great notoriety. Somehow we must always assure that competent and effective assistance of counsel is afforded every person accused of crime, but dissatisfaction following the rendering of such effective assistance should not be permitted to allow procedures that result in a refusal by competent counsel to undertake such service in the first place. It is therefore incumbent on the judiciary, this trial judge included, to consider these matters in the proper perspective in order that we can continue to assure the availability of competent and willing attorneys to represent those charged with violations of our laws. I interpret Knight v. State, 394 So.2d 997 (Fla.1981) as the proper guide to achieve this necessary review, and although stated in different words, the same is sought to be accomplished by Washington v. Strickland, 693 F.2d 1243 (5th Cir. en banc 1982).

For reasons previously stated private counsel had to be appointed for the defendant. Another Circuit Judge then assigned to this case chose to go outside Bradford County, with a relatively small Bar, and secured the consent of Mr. Ireland to represent the defendant. Mr. Ireland is an active and well respected practitioner in Gainesville with a relatively larger Bar. He was admitted to The Florida Bar in 1967 and was in 1979 and is now a partner in the law firm of Clayton, Johnston, Quin-cey, Ireland, Felder and Gadd, one of the oldest and most successful law firms in this area of our state. He is certified as a civil trial attorney by The Florida Bar (there is no similar certification procedure for criminal trial lawyers). Because, as the trial judge in this case, it was my responsibility to make a subjective determination of Mr. Ireland’s ability and competence, I can and do observe that he came to this trial as an experienced and capable advocate, which observations were and are made and expressed now based on many years of acquaintance and observation as a colleague at the Bar and a worthy adversary during my years of practice. I expressed on the record my own observations as to his competence and the handling of this case at the conclusion of the penalty phase of the case and after the jury had been finally discharged when I stated:

I would also at this time like to state publicly and for the record that the Court wishes to commend Counsel for the State and the Defendant for the high degree of professional conduct exemplified by them and each of them throughout these entire proceedings. Though it may have appeared and at times was necessary that the Court intervene to make sure that matters are handled appropriately, as is the Court’s duty, it is the Court’s firm conviction that counsel for each, the State and the Defendant, in representing the cause that is their responsibility to represent, that they discharged their duty in the very highest professional tradition and they are to be commended for it. p. 842, TR.

I have not changed my opinion and nothing has been presented to me to justify any change, although given the advantage of deliberate review of a complete record, and with suggestions and ideas now made by others who also have such record to review, there may be other or different matters done or tactics pursued than those actually undertaken. In no instance yet presented to the Court do I find that there was a “substantial and serious deficiency measurably below that of competent counsel” to “demonstrate prejudice to the defendant to the extent that there is a likelihood” that any such conduct affected the outcome of the court proceedings as is required. Knight, supra. Nor can I find, as enunciated by Washington, supra, that the overall conduct of Mr. Ireland “rose to the level of ineffective assistance of counsel” and that any of the suggested conduct of ineffective counsel caused the defendant “actual and substantial detriment.”

These conclusions are reached following a thorough review by me of the record and full consideration of the matters presented at the evidentiary hearing.

The matters specified by defendant’s Memorandum of Law, etc., filed March 9, 1984 on pages 8 through 19 are those that were presented to and considered by the Court as the basis for the claim of ineffective assistance of counsel. They are discussed here in the Order recited in the Memorandum.

I Pretrial Investigation:

1-3. These paragraphs attack the professional credibility of Mr. Ireland and an assistant attorney in his law firm who assisted Ireland in the preparation of the case. This general and broadside attack on Mr. Ireland is not well founded and the allegation that Ireland turned this ease over to his associate, Mr. Forbes, “with little or no supervision” is not true and constitutes an unwarranted and callous reproach on the professional integrity of both Mr. Ireland and Mr. Forbes. Mr. Ireland had, previous to this trial, successfully defended one capital case, his client received a life sentence, he had other previous capital and other criminal defense cases and was an experienced trial lawyer in both civil and criminal cases.

4-5. Mr. Ireland was not noticed of the taking of depositions on 12/27/78, but he secured and used copies of such depositions in preparation for and at the trial. His testimony and that of his associate, Mr. Forbes, constitute plausible and reasonable grounds for his conscious determination not to take further depositions of these same witnesses.

6. In addition to the deposition of the witness Bryant, Mr. Ireland had a lengthy written statement from Mr. Bryant, and Ireland’s testimony presented at this hearing, although capable of now being “second-guessed,” for the reasons stated by him he elected not to further depose the witness.

7. Mr. Ireland conferred with Bryant’s wife prior to the trial and gave a plausible and justifiable reason not to take her further deposition.

8. Mr. Ireland was never made aware of any evidence to be offered by defendant’s father, the defendant never informed him and any value that such a deposition may have rendered has not yet been made known.

9. Mr. Ireland explained that he knew Mr. Carter previously, that he talked to him on several occasions that he had the actual benefit of the information Carter had, and chose not to depose him. What more could have been obtained or its use is purely speculation.

10. The investigative files of the Police are not subject to discovery and defense has not yet demonstrated that such matter, if available, would be of any use. Ireland’s investigator was instructed to obtain such of this type information as he could.

11. Ireland had talked with Cooter, he had learned already that Cooter had used Bryant as an informer, and Ireland testified that a deposition was unnecessary.

12. Ireland made a judgment to attack the credibility of Bryant by using his wife or his former wife. He had his investigator make the exploration complained of and no better impeachment evidence was available.

13. Ireland had the benefit of a deposition already taken of Henry. Ireland, for reasons, and understandable reasons, testified that he chose not to further depose him and afford Henry a chance to rehabilitate statements already in his prior deposition that he felt were impeachment, and Ireland actually developed these matters at the trial.

14. No evidence or argument was presented on this point, and the suggestion made now is pure speculation that something may have developed.

15. As stated previously, the investigative files of the Police Department are not subject to discovery. What they may have shown, if anything, is not yet known, and Ireland instructed his investigator to make this type inquiry.

16. Ireland testified that he and his investigator attempted to find out matters in the community about Mr. Henry and nothing more damaging than his own deposition was found.

17. The deposition of Henry Hamm already taken clearly shows his inability to afford the desired alibi. No good purpose would have been served by another deposition.

18-22. Ireland was never told by Griffin about his brother or that he had any information available to assist him. Neither was Ireland ever told by Griffin about Pool, Crosby, Simmons, or Griffin’s aunt, Mrs. Martin. Even if we accept Griffin’s present testimony (which the Court rejects as untruthful) that Ireland and Forbes never saw him until two weeks prior to the trial, Griffin and Ireland were together in the presence of the Court for four days during the guilt phase of the trial. It is now suggested that information from these persons may have been of benefit at the penalty phase. Griffin apparently chose not to share such information with his attorney.

II VOIR DIRE

The points raised here are not considered by this Court as properly included for purposes of collateral attack on the Judgment and Sentence, but are considered only in support of the claim of ineffective assistance of counsel.

1. This allegation constitutes an incorrect statement and conclusion based on the record itself. It is'now for the first time claimed that Ireland should have objected to the Court excusing prospective juror Fayson for cause. Indeed, Mr. Ireland did argue appropriately with the Court when the challenge for cause was presented by the State. Having reviewed the record pertaining to this matter the Court finds no reason to now suggest that Ireland should have pursued the matter further. Who can now say that a conscious decision made not to alienate members of the jury by pursuing such objection was an improper tactic?

2. It is claimed that Ireland should have challenged for cause 8 of the jurors who sat in the case and not a single recitation in the Amended Motion or Memorandum nor in the record itself would serve as a proper basis for challenge for cause. Had such a challenge been made on the record it would have been denied. Who can now state that the failure to make such challenges and not only alienate such prospective jurors, but others as well, for such flimsy and baseless reasons constitutes an improper trial tactic?

3. This point charges Mr. Ireland with not objecting to the prosecutor’s reference to race. Of all the points raised, this is perhaps the most absurd, and is indicative of the extent present counsel will go to inject matters into this case that were never there. First, defense counsel misrepresents the facts and second the conclusions sought to be drawn are absolutely ridiculous. There were only two references made during voir dire to the color of the victims and these were made entirely in the context of identification of the victim. (TR p. 26, 135) Two other references for the exact same purpose were made during the prosecution’s opening statement (TR p. 226, 230) and once during questioning of the witness Bryant (TR p. 458). A careful review of the entire record clearly reveals that this trial was conducted unblemished by any racial slurs or inferences. To suggest otherwise is not only an unwarranted attack on Mr. Ireland, the Assistant State Attorney, Mr. Hebert, but this Court as well. Neither attack has any basis whatsoever. Who is now to say that Mr. Ireland should be faulted for not injecting the subject of racial bias, either intended or unintended, into this trial conducted entirely without any such insinuation?

Ill TRIAL

1. Defense claims that Mr. Ireland failed to effectively cross-examine the witness Bryant and failed to impeach his testimony by use of Bryant’s deposition. A careful reading of Bryant’s trial testimony, both on direct and cross-examination, together with Bryant’s deposition fails to disclose the inconsistency of Bryant claimed by the defendant. Inferences may be drawn from the lack of precision in reciting the exact order in which Bryant told his minister, his wife, his father, his attorney and deputy Carter, but the deposition itself shows that Bryant refused to answer such questions. The trial record demonstrates that Ireland did make appropriate use of the deposition, he did attempt to impeach Bryant in the ways that Ireland thought were best and I cannot now question such tactic.

2. Ireland gave a sound and logical reason for his decision not to call Cooter because he had on several occasions vouched for Bryant’s veracity as an informer in securing such warrants.

3. Ireland examined Bryant’s wife in the fashion and to the extent that he felt proper. His was an approach taken as a result of his own strategy developed for this trial.

4. Ireland has fully explained that he determined not to require production of the mentioned diary and he stated that he indeed made this decision after talking with Ms. Bryant.

5. Matters pertaining to the failure to again take the deposition of Henry have already been discussed here and were explained fully by Mr. Ireland. At the trial Ireland used the deposition already taken to attempt to impeach his testimony.

6. Whether Griffin owed Henry money is not yet known to the Court. No testimony was presented to that effect then or now. Griffin testified at the hearing that he never shared any such information with Ireland.

7. It has already been established that Hamm would have been absolutely no use as an alibi witness. To put him on the stand would have been a gross mistake in judgment.

8. Counsel failed to argue or present any evidence on the charge of “shocking ineffective assistance of counsel when he put his client on the stand.” I assume only that defense counsel discovered that Griffin insisted on taking the stand.

9. That Griffin’s brother could have “undercut” the evidence relating to the pri- or conviction of Griffin is unsupported by any fact or suggestion. While it was never made known to the Court what such evidence may have been, the fact of such conviction itself constitutes evidence in support of the relevant aggravating circumstance. No explanation could alter that fact.

10. No proof nor any evidence was offered in support of this point made. I must assume that such proof does not exist.

11. The evidence disclosed that Mr. Glover died in 1977. He could not have been deposed or used as a witness.

12.The failure to request an instruction on felony second degree murder I must assume was also a tactical decision made. Ireland was not questioned about this at the hearing and I shall not speculate.

Note there is no paragraph 13.

14. The complaint now made about Ireland’s failure to object to 2 statements made by the prosecutor in closing argument was not argued by defense at the hearing. I treat it as abandoned or admittedly unimportant.

CHARGE TO THE JURY

1-6 These points now sought to be made are excellent after the fact arguments. While they are not permitted by me now as a collateral attack on the Judgment and Sentence, I announced that I would permit the defense to argue these matters only in their support of ineffective counsel. The failure by the Court to charge the jury on the underlying felony of robbery was an oversight, but the oversight was corrected in the manner authorized by the rules and such procedure was approved by the Supreme Court on appeal. This, like the other matters complained of in points 1-6, has been addressed by the Supreme Court, and my review of these entire proceedings and these points in particular do not cause me to conclude that such procedure demonstrates ineffective assistance of counsel as pronounced by Knight, supra or Washington, supra. Certainly we can’t now fault Ireland as being ineffective because of the later decision in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

PENALTY

1-4 These points were raised and discussed earlier. Ireland was never informed as to the persons Griffin now wishes he had used. Ireland testified as to his own strategy used in presenting the cause of his client at the penalty phase. Others may have handled the matter differently, but I am not persuaded that such tactical decision now should be declared to be erroneous or that it demonstrates ineffective counsel.

I must comment on some matters developed during the hearing designed to demonstrate lack of time spent by Ireland in preparation for the defense of this case. Ireland did not have the benefit of his case files to use before or at the hearing. These had, at the request of Griffin, long ago been turned over to Mr. Lámelas and Ireland had not had the benefit of their use. There was presented in evidence a Motion for Order Setting and Awarding Attorney’s Fees and Costs signed under oath by Ireland. This document, Defense Ex. # 2, was used to establish that Ireland did only that which is stated in such Motion, and to show unequivocally that Ireland had very little time in preparation for the case. I do not ignore the contents of the Motion, and neither do I ignore my own knowledge of the purpose for which such Motion was prepared. It was not prepared to demonstrate to the satisfaction of the Court that Ireland had properly and effectively represented his client. It was prepared for the purpose of demonstrating that sufficient time had been devoted to the case to justify at least the maximum attorney’s fee authorized by law. Ireland testified that the Motion, although under oath, did not include reference to all the time spent in the case. I know that and I believe it to be true.

I have considered the matters raised in the Amended Motion, the evidence presented, and the argument of counsel. I am aware that defendant faces the death penalty if his claims of ineffective assistance of counsel are denied. I have viewed the claims now made both individually and collectively. I am fully aware that with all the record review now available and the prompting made by cumulative well trained minds there are various alternate approaches that trial counsel could have taken differently, and indeed today, may do differently. I cannot and do not find that the constitutional rights of the defendant to effective assistance of counsel were violated using either Knight or Washington standards. There has been no showing of resulting altering possibilities, probabilities, or any actual and substantial detriment.

IT IS THEREFORE ORDERED AND ADJUDGED that the Amended Motion to Vacate, Set Aside or Correct Conviction and Sentence and Order a New Trial is denied.

The defendant has not exceeding 30 days to appeal this Order.

DONE AND ORDERED in Chambers at Gainesville, Florida, this 13th day of March, 1984.

s/Osee R. Fagan OSEE R. FAGAN, CIRCUIT JUDGE


author: BOOTH, Judge. PER CURIAM.

text:
    James William ROCHE, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-346.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1982.
    On Rehearing March 8, 1984.
    . Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   BOOTH, Judge.

Appellant appeals his conviction for trafficking in more than 100 pounds but less than 2,000 pounds of cannabis. Among other issues raised on appeal, which we find are without merit, appellant contends that the trial court erred in denying his motions to suppress the cannabis seized pursuant to an agricultural search warrant and a calculator and list of weights seized as a result of a warrantless search of appellant’s flight bag. We affirm.

Appellant was the driver of a van that passed an agricultural inspection station without stopping. Another individual was a passenger in the van at the time. Deputy Sheriff Pease observed the van pass the station, pursued it, pulled it over, informed appellant that he had failed to stop as required by law, arrested appellant for the misdemeanor violation, and requested that appellant return to the agricultural inspection station.

At the station, Agricultural Inspector Clark obtained permission from appellant to look into the van and, upon doing so, observed a large compartment area with no visible access and no odor emanating therefrom. Appellant informed Inspector Clark that he knew of no way into the compartment area and denied ownership of the vehicle. Inspector Clark, not satisfied with the search, thereupon obtained an agricultural search warrant pursuant to Section 570.15(l)(b), Florida Statutes.

The locked compartment was forcibly opened by Inspector Clark with the assistance of Deputy Sheriff Pease, and cannabis in excess of 500 pounds was discovered therein. Both the vehicle and appellant were transported to the police station, whereupon the van was searched and a flight bag, which belonged to appellant, seized. Pursuant to a warrantless search of the flight bag, Deputy Pease discovered a calculator that contained a list of weights which corresponded to the number of bales of cannabis and weights of each stored in the compartment area of the vehicle. Appellant’s motions to suppress the cannabis, the flight bag and the contents found therein were denied.

Appellant contends that Section 570.-15(l)(b), Florida Statutes, is unconstitutional because it permits the issuance of a regulatory search warrant on less than probable cause as required by Article I, Section 12 of the Florida Constitution and that the warrantless search of the flight bag conducted by Deputy Pease at the station was unconstitutional pursuant to Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.3d 744 (1981), Knight v. State, 398 So.2d 908 (Fla. 1st DCA 1981), and Hicks v. State, 398 So.2d 1008 (Fla. 1st DCA 1981). We disagree.

In Pederson v. State, 373 So.2d 367 (Fla. 1st DCA 1979), this court recognized that it is “constitutionally permissible for the Legislature to impose an administrative probable cause standard for a warrant.” Shortly thereafter, the Legislature redrafted Section 570.15(l)(b), Florida Statutes, and deleted the requirement that criminal probable cause, as enunciated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and set forth in Chapter 933, Florida Statutes, be satisfied. Ch. 79-587, § 1, Laws of Florida.

“If a valid public interest justifies the intrusion contemplated, then there is [administrative] probable cause to issue a suitably restrictive warrant.” Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The reasonable governmental interests advanced by Chapter 570, Florida Statutes, which justify the intrusion contemplated, are the protection of the public health and economic good. See Gluesenkamp v. State, 391 So.2d 192 (Fla.1980), cert. denied, 453 U.S. 924, 102 S.Ct. 888, 69 L.Ed.2d 1022 (1981).

Upon discovery of the cannabis, Deputy Officer Pease had probable cause to conduct a warrantless search of the vehicle and containers, including the flight bag, found therein. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). It matters not whether that search was conducted at the immediate scene or at the police station shortly thereafter. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

Accordingly, we conclude that the trial judge did not err in denying appellant’s motions to suppress and affirm the judgment of conviction.

SMITH and SHIVERS, JJ„ concur.

ON MOTION FOR REHEARING

PER CURIAM.

On rehearing, appellant directs this court’s attention to Lake Butler Apparel Company v. Department of Agriculture and Consumer Services, 551 F.Supp. 901 (M.D.Fla.1982), wherein the United States District Court held Section 570.15, Florida Statutes, unconstitutional and enjoined random vehicle searches conducted pursuant to that statute. The facts in the instant case go beyond those in the Lake Butler decision in establishing probable cause; so, having given due consideration to the federal decision, we nonetheless adhere to our prior judgment of affirmance, but certify to the Supreme Court of Florida the following issue:

DOES SECTION 570.15, FLORIDA STATUTES, VIOLATE THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION IN THAT IT ALLOWS ADMINISTRATIVE SEARCHES WITHOUT A SHOWING OF “PROBABLE CAUSE” AND WITHOUT AN “ADMINISTRATIVE PLAN CONTAINING SPECIFIC NEUTRAL CRITERIA?”

Marshall v. Barlow’s, Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978); United States v. Mississippi Power and Light Company, 638 F.2d 899, 907 (5th Cir.1981).

BOOTH, SMITH and SHIVERS, JJ., concur.

      . Although we do not address herein whether the search conducted by Deputy Pease at the police station could be upheld under the inventory exception to the warrant requirement, we note that the continued viability of Knight v. State, 398 So.2d 908 (Fla. 1st DCA 1981), and Hicks v. State, 398 So.2d 1008 (Fla. 1st DCA 1981), is questionable in view of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).


author: HERSEY, Judge.

text:
    John H. JAMASON and James Gabbard, Appellants, v. STATE of Florida, Appellee.
    No. 82-565.
    District Court of Appeal of Florida, Fourth District.
    March 23, 1983.
    David Roth of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, and Larry Klein, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
    Leon St. John, Florida Criminal Defense Attys’ Ass’n, West Palm Beach, as amicus curiae.
   HERSEY, Judge.

Appellants, law enforcement officers, were adjudged guilty of criminal contempt and were each fined $500.00. The contempt consisted of refusal to comply with the telephonic order of a circuit court judge to produce and bring before her an individual in the custody of appellants. Custody terminated before a formal writ of habeas corpus could be served. After notice and a hearing the judge entered the order under review here.

These skeletal facts need fleshing out in order to place the important issues in proper perspective. In brief: On January 18, 1982, at approximately 9:30 a.m., Judge Rosemary Barkett received a telephone call from Steven Gomberg, an attorney in private practice. Attorney Gomberg explained to Judge Barkett that he had been retained by the wife of one John Melody, who was being detained at the West Palm Beach Police Department. Attorney Gom-berg stated that appellant Gabbard (a lieutenant with the West Palm Beach Police Department) had refused his request to see John Melody.

Mr. Melody was, in fact, in custody as a suspect in a rape case. He had been advised of his constitutional rights and had made no request to consult with counsel or to contact anyone.

On the basis of the call from attorney Gomberg, Judge Barkett telephoned appellant Gabbard and stated that she was “issuing an oral writ of habeas corpus to bring John Wayne Melody before me immediately.” Appellant Gabbard declined to comply and the judge asked to speak to appellant Jamason (Chief of the West Palm Beach Police Department) who also refused to comply with the oral order. Appellants did not doubt that the person issuing the oral order was Judge Barkett.

At about 12:15 p.m. a formal writ of habeas corpus was served on Major Mann of the West Palm Beach Police Department; however, Melody was no longer in the custody of that Department. He had been transferred to the Palm Beach County Jail for booking. Appellants allege that if Melody had been in their custody at the time the written writ was served, they would have complied with it.

In fact, appellants (through Major Mann of the Police Department) informed personnel at the county jail of the issuance of the writ and sent a copy of it to the jail. At some point in time after the oral order was issued, a written petition for a writ of habeas corpus was filed.

The question to be answered by these appellate proceedings is whether the willful refusal to obey a telephonic order (in the nature of a writ of habeas corpus) issued by a court of general jurisdiction and based upon an oral application therefor by an attorney for the individual said to be illegally restrained, may constitute criminal contempt.

The first important issue to be determined is whether, and if so under what circumstances, an oral order of a court of general jurisdiction may be disregarded with impunity. The clear answer is that only if an order is entered in a matter concerning which the court has no jurisdiction may such an order be safely ignored. The corollary of that rule is that whether an order be totally erroneous or irregular or even unconstitutional, its violation may constitute a criminal contempt. We explained this rule at length in Sandstrom v. State, 309 So.2d 17, 20 (Fla. 4th DCA 1975), quoting Anno: Contempt — Disobeying Invalid Decree, 12 A.L.R.2d 1059, 1107.

Where the court has jurisdiction over the subject matter and the parties and has the authority or power to render the particular order or decree, the fact that such order or decree, violation or disobedience of which is made the basis of the contempt charge, is erroneous or irregular or improvidently rendered, does not justify the defendant in failing to abide by its terms, and his conduct in failing to do so may be punished as for contempt despite the error or irregularity. It is almost unanimously agreed that if the defendant desires to attack the order or decree as erroneous, he must do so, not by disregarding or violating it and then setting the error up as a defense to a charge of contempt, but by attacking the order on direct appeal or by motion to set it aside. He cannot attack it collaterally upon an appeal from the judgment of contempt or upon an application for ha-beas corpus to be released from imprisonment for contempt. He must obey the order so long as it is in effect and until it is dissolved by the court issuing it, or reversed on appeal by the appellate court.

The rule is not the progeny of the arrogance of the judiciary but a safeguard of the rights of citizens to have their lives, their property and their freedom protected from attack from any source by an independent and impartial court guided by a system of enshrined laws. Its rationale was more fully explored by the Fifth Circuit Court of Appeals in United States v. Dickinson, 465 F.2d 496, 510 (5th Cir.1972):

The criminal contempt exception requiring compliance with court orders, while invalid nonjudicial directives may be disregarded, is not the product of self-protection or arrogance of Judges. Rather it is born of an experience proved recognition that this rule is essential for the system to work. Judges, after all, are charged with the final responsibility to adjudicate legal disputes. It is the judiciary which is vested with the duty and the power to interpret and apply statutory and constitutional law. Determinations take the form of orders. The problem is unique to the judiciary because of its particular role .... the deliberate refusal to obey an order of the court without testing its validity through established processes requires further action by the judiciary, and therefore directly affects the judiciary’s ability to discharge its duties and responsibilities. Therefore, ‘while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration whose judgments and decrees would be only advisory.’

There are two significant jurisdictional events involved in the present case, both of which raise issues which appear to be matters of first impression in this jurisdiction.

The first is whether jurisdiction of the subject matter in a habeas corpus proceeding is properly invoked by an oral application. Chapter 79, Florida Statutes (1981), studied in a vacuum, would dictate a negative reply to this inquiry. We may not stop there, however. The great writ has its origins in antiquity and its parameters have been shaped by suffering and deprivation. It is more than a privilege with which free men are endowed by constitutional mandate; it is a writ of ancient right.

The great writ, known commonly by the name of habeas corpus, was a high prerogative writ known to the common law, the object of which was the liberation of those who were imprisoned without sufficient cause. See Ex-parte Watkins, 3 Pet. (28 U.S.) 193, 7 L.Ed. 650.
It is a writ of inquiry upon matters of which the State itself is concerned in aid of right and liberty. State v. Michel, 105 La. 741, text 747, 30 South.Rep. 122, 54 L.R.A. 927; Ex parte Coupland, 26 Tex. 386.
The name of the writ is “habeas corpus ad subjiciendum et recipiendum.” It is not an action or suit but is a summary remedy open to the person detained. It is civil rather than criminal in nature and is a legal and not equitable remedy. See Ex-parte Watkins, supra; Ex-parte Bollman, 4 Cranch (8 U.S.) 75, 2 L.Ed. 554.
[Wjhile the writ had been in use in England from remote antiquity it was often assailed by kings who sought tyrannical power and the benefits of the writ were in a great degree eluded by time-serving judges who assumed a discretionary power in awarding or refusing it and were disposed to support royal and ministerial usurpations. Owing to such abuses the writ became powerless to release persons imprisoned without any cause assigned. In the fight by the people against the abuses of the writ, petitions of rights were submitted to the king and during the reign of Charles I, A.D. 1641, provisions were enacted intended to make the writ effectual. These activities were however vain. At last, in 1679, the Statute 31 Chas. II Chap. 2 was enacted. That Act is known as the Habeas Corpus Act. That Act has been substantially incorporated into the jurisprudence of every State in the Union and the right to it secured by their Constitutions. The Constitution of the United States provides that the privilege of the writ of habeas corpus shall not be suspended except in certain circumstances. Art. I, Sec. 9, par. 2, U.S. Const.
The application for the writ may be made by an agent or friend, wife, husband, or the person detained himself, or by parent for his child, guardian for his ward, or special bail for his principal. In any event it must be a friendly person in the interest of the person illegally detained.

State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 460-461, 152 So. 207, rehearing denied 156 So. 261 (1933).

It was early established that no formal application was required to invoke the jurisdiction of the courts in habeas corpus proceedings. “No formal application for habeas corpus is required.” Martin v. State, 123 Fla. 143, 145, 166 So. 467 (1936). “The writ of habeas corpus is a writ of right. It is sometimes issued upon very informal application, Ex Parte Pells, 28 Fla. 67, 9 South.Rep. 833.” Ex Parte: Ernest Amos, 93 Fla. 5, 11, 112 So. 289 (1927). The most extreme statement of the rule is represented by the following quotation from Corpus Juris Secundum:

[t]he writ may be issued by the court of its own motion in a proper ease. 39A C.J.S., Habeas Corpus § 167.a (1976).

This quotation taken out of context is inserted here merely for contrast. We are not called upon to decide whether a judge may sua sponte issue the writ but whether a telephonic application is a viable alternative to some form of written application, as, for an example of the latter, an informal letter written to a Justice of the Supreme Court. Sneed v. Mayo, 66 So.2d 865 (Fla.1953).

As a general rule, a habeas corpus proceeding is an independent action, legal and civil in nature, designed to secure prompt determination as to the legality of restraint in some form.

Crane v. Hayes, 253 So.2d 435, 439 (Fla.1971).

Habeas corpus, then, like the unicorn, is a unique animal. Public policy demands that it be readily, speedily and constantly available. The judiciary has been singularly zealous in responding to that policy. Given the history of the great writ in politics as well as in the judicial arena we are inclined to the view that the oral application involved here was sufficient to invoke the court’s jurisdiction. As was said in Anglin v. Mayo, 88 So.2d 918, 919-920 (Fla.1956):

[Historically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.

We do no more than expand upon the phrase “If it appears to a court of competent jurisdiction” when we determine that if the court is advised by an oral communication by one having a legitimate interest that an individual may be “illegally restrained of his liberty, it is the responsibility of the court to ... issue such appropriate orders as will do justice.”

We are aware of no policy considerations which would lead to a different result. If we bear in mind that all we are concerned with at this juncture is activating the jurisdiction of the court, any parade of horribles picturing an unbridled judiciary seeking omnipotence must be brushed aside. The court has no more power, nor any less, in an action commenced by the spoken as opposed to the written word. The criteria is availability or access to the courts and no other rule suits it so well.

Such a rule, on the other hand, should give the judiciary food for thought. Problems of identity, credibility, reality of interest and even judicial immunity from personal liability may become issues in or consequent upon habeas corpus proceedings instituted orally. Such questions will demand the exercise of judicial discretion to a high degree.

Having therefore concluded that the court had subject matter jurisdiction so that the order was not void on that account, we next consider the second jurisdictional event: the oral order. Both parties concede the validity of unwritten orders under a multitude of circumstances. We doubt that the present case fits within any of such circumstances. We lean toward the view, without deciding, that service of a formal writ is an absolute requirement to obtain personal jurisdiction over the authority it is claimed illegally restrains the body of the captive individual. We need not decide the issue, however, as it involves jurisdiction over the person, which, if defective, renders the order voidable only, not void. One may not disobey with impunity the order of a court which is merely voidable, as here.

We have come full circle. The court, having subject matter jurisdiction, issued an order (which may be voidable because it was oral) in the nature of a writ of habeas corpus with which appellants chose to refuse to comply. We are somewhat sympathetic to appellants’ argument that they were seeking, through what appeared to them to be the only channel open for that purpose, appellate resolution of an issue which appears to have been a frequently encountered and therefore troublesome one, to wit: oral orders. Technically, however, they committed an act of criminal contempt in the process ana we are not prepared to determine that the amounts of the respective fines represent an abuse of discretion.

In affirming on the foregoing basis we specifically do not foreclose the possibility that the amount of the fines may be reduced either by the trial court, sua sponte, or upon appropriate application to the trial court by appellants for post-conviction relief.

Further, because the matter is one of first impression in the State of Florida and may in one of its potentially infinite variations recur with some frequency, we determine the issue to be one of great public importance and certify the following question to the supreme court:

Whether the willful refusal to obey a telephonic order (in the nature of a writ of habeas corpus) issued by a court of general jurisdiction and based upon an oral application therefor by an attorney for the individual said to be illegally restrained, may constitute criminal contempt.

AFFIRMED; REMANDED; QUESTION CERTIFIED.

ANSTEAD and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    Bernice COHEN and Sally Friedland, Appellants, v. George FRIEDLAND and Sylvan M. Cohen, Appellees.
    No. 82-2479.
    District Court of Appeal of Florida, Third District.
    July 12, 1983.
    Rehearing Denied Aug. 3, 1983.

      Morgan, Lewis & Bockius and Paul J. Levine, Miami, for appellants.
    Steel, Hector & Davis and Arthur J. England, Jr. and Thomas R. Julin, Miami, Stein-berg & Wohl, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

In a judicial proceeding instituted by the settlor to revoke a trust, the alleged failure of the trustee to take a position in response to the court’s inquiry as to whether he wishes to continue as trustee does not constitute a failure by the trustee to discharge his fiduciary duties. If it were necessary to reach the factual question, the evidence shows clearly by the trustee’s own testimony that he has “exercised and will continue to exercise his best judgment” in accordance with the trust agreement. Further, it affirmatively appears that there is no other basis for removal of the trustee.

The order discharging the trustee and dissolving the trust is reversed; the cause is remanded with instructions to enter judgment for appellants.


text:
    Neil J. KARLIN, M.D. and Florida Patient’s Compensation Fund, Appellants/cross appellees, v. Donna DENSON and Joseph Denson, her husband, Appellees/cross appellants.
    Nos. 82-1984, 82-2085.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Joe N. Unger of Law Offices of Joe N. Unger, P.A., Miami, for appellants/cross appellees, Neil J. Karlin, M.D., and Florida Patient’s Compensation Fund.
    Milton Kelner and John D. Kelner of Kelner & Kelner, Miami, for ap-pellees/eross appellants, Donna Denson and Joseph Denson.
   PER CURIAM.

This appeal is based on a medical malpractice action. Appellant challenges the trial court’s ruling that Section 768.56, Florida Statutes (1981) is constitutional. That statute provides for the award of attorney's fees to the prevailing party in medical malpractice actions. We affirm upon authority of Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983).

Appellant’s remaining issue was not properly preserved for appeal; thus appel-lee’s issue on cross-appeal need not be addressed.

AFFIRMED.

LETTS, HERSEY and WALDEN, JJ., concur.


text:
    Armando LOPEZ, Appellant, v. Rosa LOPEZ, Appellee.
    No. 83-730.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Robert A. Romagna, Miami, for appellant.
    Myra Bennett Torres, Miami, for appel-lee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Appellant husband seeks review of a final judgment of dissolution of marriage which awarded the wife (1) lump sum alimony, (2) a special equity in the marital home and (3) exclusive use and occupancy of the marital home pending its sale, and which further required both parties to share in the mortgage payments.

Appellant has raised several points on appeal, only one of which has merit. Appellant contends that the trial court erred in failing to adjudicate the rights of the parties as to the personal property acquired by the parties during the marriage, as requested by the parties in the petition and counter-petition for dissolution of marriage. We agree that reversible error has been demonstrated in this respect. “In a dissolution action, when the question of property rights is raised, the court must determine the issue since its final judgment of dissolution settles all property rights of the parties and bars further action to determine such rights.” Craig v. Craig, 404 So.2d 413, 414 (Fla. 4th DCA 1981) (citations omitted). Accordingly, the cause is remanded for a determination of the property rights of the parties.

The final judgment is in all other respects affirmed.

Affirmed in part, reversed in part and remanded.


author: BERANEK, Judge.

text:
    James Ervin SHEFFIELD, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-1868, 82-1876.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    John P. Shevock, of Gillespie, McCormick, McFall, Gilbert & McGee, Fort Laud-erdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant appeals his conviction and sentence for dealing in stolen property and conspiracy to deal in the same stolen property. We reverse and remand.

The defendant was charged in two separate informations for the above two crimes arising from a single criminal episode. For some unknown reason, the State chose to prosecute the defendant for each crime separately, and defendant chose not to object. In the case charging defendant with dealing in stolen property, a defense continuance was taken. However, the speedy trial deadline ran in the conspiracy case. The defendant’s motion for discharge was denied due to the continuance in the other case.

Reviewing the matter on a case-by-case basis, we find the rationale of State v. DeSimone, 386 So.2d 283 (Fla. 4th DCA 1980), inapposite. Here, the defendant was not brought to trial within the speedy trial deadline and should have been discharged on the conspiracy charge. The State chose its prosecutorial route and is bound by it. Although the two prosecutions might well have been, consolidated, they were filed in different divisions before different judges and with different prosecutors. Each case was prepared separately and discovery proceeded independently. At all times, the defendant made known his reliance on the speedy trial deadline in the conspiracy case and the State even agreed to speed up discovery in that case to meet the speedy trial deadline. Unlike State v. DeSimone, supra, the instant ease presents strong elements of estoppel against the State. Further, in DeSimone the two informa-tions were consolidated prior to the running of the speedy trial deadline.

Our review of the record convinces us that the appellant was prejudiced and the court thus erred in denying discharge as to the conspiracy count. We also find error in the trial of the matter as to the admission of certain coconspirator statements against defendant. This evidence prejudiced defendant in the dealing in stolen property prosecution so we must also reverse that conviction.

REVERSED WITH DIRECTIONS TO DISCHARGE ON THE CONSPIRACY CHARGE AND POR A NEW TRIAL ON THE DEALING IN STOLEN PROPERTY CHARGE.

DELL and HERSEY, JJ., concur.


author: LEHAN, Judge.

text:
    Fred KAECEK, Appellant, v. Theodore J. KNIGHT, Appellee.
    No. 83-805.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1984.
    Rehearing Denied April 6, 1984.
    A1 Millar, Jacksonville, for appellant.
    Daniel P. Rock, New Port Richey, for appellee.
   LEHAN, Judge.

A co-owner of property which was sold at a public sale pursuant to an order of partition appeals from the trial court’s order denying his motion to set aside the sale. We reverse.

Appellant and appellee are brothers who became co-owners of certain real property under the terms of their mother’s will. The property came to them free and clear of any liens. After they took title, however, a number of outstanding judgments against appellee (totaling approximately $20,000) were placed of record against ap-pellee’s interest in the property.

The brothers were unable to agree upon a sale of the property. Appellant instituted this action requesting partition. By order of the trial court, a public sale was conducted on February 25, 1983. Immediately prior to the beginning of the bidding, appellee’s attorney asked the deputy clerk conducting the sale to announce that the sale would be made subject to outstanding liens. The deputy clerk made that announcement although the order of partition said nothing in that regard. Only one bid for the property, in the amount of $100.00, was received. That bid was made by appel-lee’s attorney. Appellant did not attend the sale or have a representative present.

Appellant filed a timely objection to the sale and a motion to set aside the sale, claiming that the $100.00 sale price was so inadequate as to shock the conscience of the court. Appellant later filed an untimely objection to the sale, which it appears that the trial court treated as an amendment to the first objection. The second objection was based upon the announcement at the sale that the property would be sold subject to outstanding liens. After a hearing, the trial court denied the relief requested by appellant. This appeal followed.

The gross inadequacy of the $100.00 sale price for property on which the co-owners had recently received an offer to purchase for $35,000 (the offer having been rejected by appellee), coupled with the irregularity of the deputy clerk’s announcement prior to the bidding, was a sufficient ground to require the setting aside of the sale. If gross inadequacy of price results from mistake, accident, surprise, fraud, misconduct or irregularity by the purchaser or other persons connected with the sale, equity will act to right the wrong. Arlt v. Buchanan, 190 So.2d 575 (Fla.1966); American National Bank v. Lau, 268 So.2d 567 (Fla. 2d DCA 1972).

Appellee argues that the allegedly inadequate price in this case has not been shown to have resulted from the pre-bidding announcement. The record indicates that there were several other people gathered around the place for the public sale who might or might not have been possible bidders and who might or might not have been discouraged from bidding by the announcement that the sale was subject to outstanding liens. To require appellant to prove that the announcement caused the lack of other bids may require appellant to virtually do the impossible. Under the circumstances of this case where the dampening effect of the announcement appears obvious we feel it would be inequitable to place that burden upon appellant.

No Florida case law has come to our attention which sets out any required method for structuring a partition sale when there are outstanding liens against the interest of one of the co-owners. However, a court has the power to order satisfaction of a lien from the proceeds of a partition sale. See Rosenfield v. Rosenfield, 404 So.2d 188 (Fla. 4th DCA 1981). Also, the generally recognized rule is that liens on the undivided interest of a cotenant will, upon a partition sale, attach to the cotenant’s share of the proceeds of the sale, and the purchaser at the partition sale takes the property discharged of the lien. 59 Am.Jur.2d Partition § 193 (1971). Any other result in this case would be unfair to the cotenant against whose interest no liens are filed because the effect would be to tax his interest to pay the liens incurred by the other cotenant.

In this case, the probable effect of the sale being made subject to outstanding liens against appellee’s interest was to reduce the purchase price at the partition sale, thereby taking value away from appellant’s share of the property. The sale should be set aside. The trial court should order that the liens against appellee’s interest in the property will be paid from appel-lee’s portion of the proceeds of the sale.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

SCHEB, A.C.J., and SCHOONOVER, J., concur.


text:
    FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Appellant, v. SOUTH FLORIDA REGIONAL PLANNING COUNCIL and City National Bank of Miami, Appellee.
    No. 83-50.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Rehearing Denied April 17, 1984.
    Michael F. Chenoweth, Miami, for appellant.
    John G. Fletcher, Susan Keil, Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff and Alan S. Gold and Anthony J. O’Donnell, Jr. and Thomas K. Equels, Miami, for appellees.
    Simon, Schindler & Hurst and Kenneth E. Weisner and Thomas M. Pflaum, Miami, for amicus curiae.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Events occurring both before and after the entry of the order sought to be reviewed have made it apparent that even if this court were to decide the issues raised on this appeal in appellant’s favor, the appellant would be afforded no relief. Accordingly, since no practical purpose will be served by a decision, the appeal must be dismissed as moot. See DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1953); Alabama Coal Company v. Bowden, 44 Fla. 163, 31 So. 820 (1902); Halloran v. Pensacola Association of Life Underwriters, Inc., 395 So.2d 554 (Fla. 1st DCA 1981); Gulf Life Insurance Company v. Newell’s Incorporated, 226 So.2d 858 (Fla. 4th DCA 1969); In re Estate of Lindsay, 207 So.2d 736 (Fla. 4th DCA 1968); Gill v. City of North Miami Beach, 156 So.2d 182 (Fla. 3d DCA 1963); Coursen v. City of South Daytona, 127 So.2d 905 (Fla. 1st DCA 1961); Bliven v. Turville, 100 So.2d 91 (Fla. 2d DCA 1958).

Appeal dismissed.


text:
    Julio PADILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1303.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 10, 1984.
    Julio Padilla, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order of revocation of probation under review, which, contrary to the trial court’s oral findings that the defendant violated Conditions 2 and 4 only of the order granting probation, recites that the defendant violated Conditions 2, 4, 7 and 9, is upon remand to be modified by striking therefrom the reference to Conditions 7 and 9. In all other respects the order, and the pursuant judgment and sentence, are affirmed.

Remanded for modification of order and affirmed.