author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Richard ADAMS v. STATE.
    1 Div. 757.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Gary D. Porter, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Richard Adams was found guilty by a jury “of unlawfully selling, furnishing or giving away Pentazocine, a controlled substance,” to Tommy Johnson, and was sentenced by the court to imprisonment for three years. Tommy Johnson was a Mobile County Deputy Sheriff working under cover, who testified that he bought some “drugs” from Richard Adams and placed them in a “small tinfoil package,” which he took to the Sheriff’s Department within about thirty minutes thereafter.

In some of the cross-examination of witnesses for the State, defendant’s attorney was able to develop information that tends to support a conclusion that there were one or more breaks in the linkage of the chain of custody between the purchase of the substance and its exhibition during the trial of the case as State’s Exhibit 1, which purported to contain some of the substance. As the actual content of State’s Exhibit 1 was never discernible by the jury, the linkage between Exhibit 1 on the trial and the content of State’s Exhibit 1 before it was brought to the trial is of no material significance. The only linkage of material significance is that which purports to constitute the linkage between the custody by Officer Johnson of the substance he purchased and the custody of Ms. Debra Sennett, the chemist who analyzed the substance and testified that it contained Pentazocine, a controlled substance, otherwise known as Talwin. Defendant’s attorney developed a weakness in that link by his cross-examination of Officer Johnson, as illustrated by the following part of Officer Johnson’s testimony on cross-examination:

“Q. So, it’s very possible that you may have bought some other Talwin from another Defendant that night; isn’t that correct?
“A. That’s correct.
“Q. All right. When you got the tinfoil packet containing the tablets, did you mark them in any way at that time?
“A. No, I didn’t.
“Q. And you don’t know whether or not you had any packets other than that with you at that time, do you?
“A. That’s correct.
“Q. All right. When did you mark for identification that particular packet that you got from somebody that night?
“A. When I arrived back at the Sheriff’s Department.
“Q. All right. Do you remember whether or not you had any other packets with you at that time?
“A. No, I don’t.
“Q. For all you know you could have; is that right?
“A. Possible.
“Q. Okay. More Talwin?
“A. Possible.
“Q. All right. And you put the Talwin in the vault; is that correct?
“A. That’s correct.
“Q. All right. Do you recall what night of the week this was?
“A. No, I don’t.
“Q. All right. But it was June 30th, 1982, right?
“A. That’s correct.
“Q. Okay. And you took it to the lab when?
“A. The following day.
“Q. All right. That would have been July the 1st.
“A. That’s correct.
“Q. All right. And who all had access to this vault in the Mobile County Sheriff’s office?
“A. Myself and about four other officers.
“Q: All right. And the next day you took it to whom?
“A. The Toxicologist Office.
“Q. And who was that?
“A. Debra Sennett.
“Q. All right. Did you hand it to her personally?
“A. That’s correct.
“Q. Okay. Do you know whether or not she marked it for identification?
“A. That’s correct.”

We are of the opinion that, although the first part of the quoted testimony of Officer Johnson revealed some weakness in the chain of custody, considerable strength is to be found by the second part of the cross-examination and that the integrity of the link of the chain of custody personified by Officer Johnson is established with reasonable certainty. The integrity of the next link, personified by Ms. Debra Sennett, is to be found in the following portion of her testimony:

“Q. All right. Now, did you have occasion to receive on July 1st of 1982 any suspected controlled substances from Dep. Tommy Johnson?
“A. I did.
“Q. What time did you receive them? “A. At 11:15.
“Q. All right. Now, what did you receive from Dep. Johnson at that time? “A. I received a manila envelope that was sealed with clear celephone [cellophane?] tape. And it was initialed ‘T.J.’ and that’s what I received.
“Q. All right. And what did you do with the envelope, ma’am?
“A. It was under my custody and control until such time that I removed a portion of the material that was contained within and performed my analysis on it.”

We are not convinced that there was any impairment of the integrity of the linkage between the link of custody of Ms. Debra Sennett and that of Officer Bochenek, who received State’s Exhibit 1 from Ms. Debra Sennett and brought it to the courtroom during the trial. However, if it had been impaired, it would not have been, as we have indicated above, an impairment of any material part of the chain of custody.

By appellant’s only other contention for reversal, he argues that the trial court “committed reversible error in allowing the State to reopen its case after the State had rested and the defendant had moved for a directed verdict of acquittal.” We fail to find in the transcript any semblance of an objection to or any protest against the court’s allowing the State to reopen its case. For us to predicate a reversal upon action by the court would be in conflict with the accepted proposition that review on appeal is limited to matters on which rulings were invoked in the trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974); Stinker v. State, Ala.Cr. App., 344 So.2d 1264, 1268 (1977).

We feel indisposed to close our opinion without noting that defendant took the stand and denied he was the person that made the sale as to which Officer Johnson testified. The evidence shows that he lived at the address at which the sale was made, but from our reading of the transcript, our impression of defendant and his testimony is not altogether unfavorable. That jurors were somewhat favorably impressed by his testimony is indicated to some extent by the fact that the jury could not reach a verdict after two attempts in the jury room on the afternoon the case was submitted to the jury and the jury was excused for the night. The next morning, the verdict was reached soon after the jury reassembled and retired to the jury room for deliberation. It is to be noted from the testimony of defendant that he did not contend or intimate that the substance purchased by Officer Johnson was not the prohibited substance charged in the indictment. Favorable to him particularly was some of his testimony as follows:

“Q. All right. Okay. What were you doing for a living back on June 30th of 1982, Richard?
“A. I was helping a guy in the back of me on a paper wood truck. I was working days with him. When just little odd jobs come, help him some days. When it rained and I couldn’t do that, I helped another guy landscape, doing, you know, regular job.
“Q. Were you working steady back then?
“A. Yes, sir, you know, I didn’t have no regular job, just one job doing paper wood. And when it rained, I would help this guy do landscaping and cleaning up. I mean, I kept regular on helping support my family.
“Q. Did you sell any drugs to supplement your income?
“A. No, sir. I. never sold no drugs, don’t even use no kind of drugs.
“Q. All right. Does your wife use drugs?
“A. No, sir.
“Q. Do you allow any drugs in your house?
“A. None that I know of, no, sir, no, sir.
“A. I heard him say that I sold him some. But I never sold no drugs or no one at my house that I know of. I mean, I was getting stopped for drugs by the Prichard Police all the time. But they never caught me or had seen me with no drugs that I was always getting stopped for.
“Q. All right. Did they come out to your house with a search warrant, the Mobile County Sheriffs Department?
“A. Yes.
“Q. Did they search your house? [Search was made soon after the sale to Officer Johnson.]
“Q. Did they find any drugs or did they arrest you for having any drugs?
“A. No, sir. They didn’t arrest me. They never found none.
“Q. Did you have any on you?
“A. I didn’t have none.”

Notwithstanding the sincerity and honesty of the jury in reaching its verdict and the sincerity of all the witnesses for the State and of all concerned in prosecuting and defending the case, we think much can be said to the credit of appellant. It is hoped that he will prove himself an exemplary prisoner, worthy of respect and consideration while in prison and always thereafter upon his completion of the moderate sentence imposed by the trial court.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur except BOWEN, P.J., who concurs in the result only.


source: Caselaw Access Project

author: PATTERSON, Judge.

license: Public Domain

text:
    Tyrone CHILLOUS v. STATE.
    3 Div. 955.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.

      David G. Flack, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellant, Tyrone Chillous, was convicted of the offense of criminal possession of a forged instrument in the first degree, Code of Alabama (1975), § 13A-9-5, and sentenced as a habitual offender to a term of fifteen years' imprisonment.

I

The degree and penalty progressions of the offense of criminal possession of a forged instrument are based upon the same factors as those of the forgery offenses, namely the kinds of instruments forged as specified in the forgery statutes, §§ 13A-9-2 through 13A-9-4. Griffin v. State, 428 So.2d 213 (Ala.Crim.App.1983). The evidence presented in the instant case showed that the forged instrument uttered or possessed by Chillous was a Social Security check drawn upon the United States Treasury, which had been fraudulently indorsed. Upon this evidence, Chillous was erroneously indicted and convicted of the offense of criminal possession of forgery in the first degree. This holding is supported by our opinion in Griffin v. State, 428 So.2d 213 (1983) wherein Presiding Judge Bowen stated the following in regard to a State of Alabama income tax refund check, at 214:

“Forgery in the first degree and criminal possession of a forged instrument in the first degree involve instruments which include, among others, falsely made, completed or altered instruments which are ‘(p)art 0f an issue or series of stamps, securities or other valuable instruments issued by a government or governmental agency.’ Alabama Code Section 13A-9-2 (1975). A ‘check’ is specifically made the subject of forgery in the second degree. Alabama Code Section 13A-9-3 (1975). Consequently, the crime of possession of a forged check constitutes criminal possession of a forged instrument in the second degree. Alabama Code Section 13A-9-6 (1975).
“The commentary to Section 13A-9-4 also makes it clear that the forgery of a single check constitutes forgery in the second degree.
“ ‘Alabama’s present classification of forgery, though clarified, is substantially followed. Section 13A-9-2, the first degree forgery section, pertains to forgeries that “impair public trust and confidence in governmental or corporate financial issues” (as opposed to single writings). The integrity of these issues is important in maintaining the confidence of persons in government financing, and thus to this conduct is assigned the more serious sanction .... If the forgery is of a single financial paper, it would be covered by Section 13A-9-3 as second degree forgery, to which a lesser sanction is affixed because of the lesser potential harm.’ ”

See also Carter v. State, 420 So.2d 292 (Ala.Crim.App.1982) (wherein this court held that a conviction for the federal offense of unlawful uttering and publishing a forged indorsement on the back of a check drawn upon the- Treasury of the United States was properly used for the enhancement of punishment under the Habitual Felony Offender Act, since the conduct is equivalent, under Alabama law, to criminal possession of a forged instrument in the second degree). Upon this error, Chillous’s conviction is due to be reversed.

II

Chillous further contends that the trial court erroneously considered five prior felony convictions in applying the Habitual Felony Offender Act in sentencing him to fifteen years’ imprisonment. He asserts that three 1981 convictions in the Montgomery County Circuit Court for criminal possession of a forged instrument and one 1981 conviction in the Autauga County Circuit Court for possession of a forged instrument, upon which concurrent sentences were invoked, arose out of a single transaction and, therefore, should have been treated as one offense. The allegation that the forged instruments for which Chillous was convicted of possessing were stolen at the same time from a particular business is not supported by the record before us. Nonetheless, this argument has been repeatedly decided adversely to Chillous’s position. Richmond v. State, 437 So.2d 612 (Ala. Crim.App.1983); Chambers v. State, 418 So.2d 948 (Ala.Crim.App.1982); Seritt v. State, 401 So.2d 248 (Ala.Crim.App.), cert. denied, 401 So.2d 251 (Ala.1981); Watson v. State, 392 So.2d 1274 (Ala.Crim.App. 1980), cert. denied, 392 So.2d 1280 (Ala.1981). Even though the forged instruments in question might have been stolen at the same time, possession of each stolen check is a separate offense. See Logan v. United States, 123 F. 291 (6th Cir.1903); Williams v. State, 162 Ga.App. 213, 290 S.E.2d 551 (1982); 37 C.J.S. Forgery § 78 (1943). The trial court properly considered each of these four convictions arising out of a common event or occurrence as constituting separate felony convictions. Seritt, supra.

Chillous also contends that his 1974 convictions for burglary and grand larceny were erroneously considered in enhancement of his punishment. He bases this assertion on the fact that these two offenses were committed by Chillous when he was seventeen years old and on the theory that, if the conduct constituting these two felony convictions had occurred on or after January 1, 1980, the conduct would have constituted juvenile offenses rather than felony offenses. We need not consider the merits of this argument for even if these two convictions were erroneously considered, the other four convictions were available for consideration in sentencing Chillous as a habitual offender. Smith v. State, 401 So.2d 251 (Ala.Crim.App.), cert. denied, 401 So.2d 257 (Ala.1981); Watson, supra.

The judgment of conviction is reversed and the cause remanded to the Montgomery County Circuit Court.

REVERSED AND REMANDED.


author: BOWEN, Presiding Judge.

text:
    Charles Edward McCLELLAN v. STATE.
    5 Div. 830.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.

      Jerry L. Cruse of Smith, Cruse, Law & May, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Charles Edward McClellan, the appellant, was indicted and convicted for the possession of cocaine and marijuana. Sentence was two years’ imprisonment and a $1,000 fine. Five issues are raised on appeal.

I

It was not error to admit the search warrant into evidence. Rucker v. State, 340 So.2d 825, 828 (Ala.Cr.App.), cert. quashed, 340 So.2d 830 (Ala.1976); Shaneyfelt v. State, 48 Ala.App. 26, 27-8, 261 So.2d 445, cert. denied, 288 Ala. 750, 261 So.2d 447 (1972). See also Horn v. State, 22 Ala.App. 66, 111 So. 452 (1927) (The only purpose for which an affidavit and warrant of arrest is admissible is to show that the offense charged was committed before the institution of the prosecution). At trial, defense counsel’s objection was, simply, “Objection”. No grounds were stated. “If only a general objection is interposed, or only general grounds are assigned in support of the objection, no error results in overruling the objection unless the evidence is illegal for any purpose and cannot be made legal by other evidence or by supplying additional evidence.” Lawrence v. State, 409 So.2d 987, 989 (Ala.Cr.App. 1982). “A valid or apparently valid writ, warrant, or affidavit on which the issuance of a warrant is based has frequently been held admissible in evidence; but such a warrant or affidavit is not admissible to establish the truth of facts or statements recited therein when such recitals relate to the offense charged, especially, in the case of an affidavit, where affiant did not have personal knowledge of the statements set out.” 23 C.J.S. Criminal Law § 846 (1961) (footnotes omitted).

II

“As a general rule, an affidavit is not admissible for the purpose of proving the truth of the matter stated in it because the affidavit is hearsay since the declarant is not present and not subject to cross-examination by the opposing party.” C. Gamble, McElroy’s Alabama Evidence § 260.01 (3rd ed. 1977). See also Eldridge v. State, 415 So.2d 1190, 1198 (Ala.Cr.App. 1982). However, in this case there was no error in the admission of the affidavit to the search warrant. On cross examination of State Narcotics Agent Grady Gibson, defense counsel questioned Gibson, the af-fiant, as to a portion of the contents of his affidavit.

Defense counsel objected to the admission of the affidavit because it had no probative value. The trial judge admitted the document and stated: “I believe that he [defense counsel] opened it up by asking questions about it.” “[W]hen part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal.” Stockard v. State, 391 So.2d 1060, 1064 (Ala.1980).

Here, the affidavit contained Officer Gibson’s statement that an “informant stated that he had observed a quantity of marijuana in possession of a white male known to him as Eddie McClellan.” There was no mention of cocaine in the affidavit. This same information had been placed before the jury by defense counsel in his cross examination of the officer before the affidavit was introduced into evidence. For this reason, the error in the admission of the affidavit was harmless. Eldridge, supra. Furthermore, any possible error was rendered harmless when McClellan admitted possession of the marijuana in testifying in his own defense.

Ill

In this case, the informant was not a material witness or a participant in a criminal transaction. United States v. Skramstad, 649 F.2d 1259, 1265 (8th Cir. 1981). There has been no showing that the disclosure of his identity was necessary to insure a fair trial. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Hatton v. State, 359 So.2d 822, 830 (Ala.Cr.App.1977), cert. quashed, 359 So.2d 832 (Ala.1978). Here, McClellan only speculates that the informant’s testimony could “possibly” show that the meeting between the informant and Officer Gibson could not have occurred as Gibson had testified. See United States v. Halbert, 668 F.2d 489, 496 (10th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 453 (1982). Since McClellan has demonstrated no actual need for disclosure, it was within the discretion of the trial judge to prevent defense counsel from establishing the time of the meeting between the informant and Officer Gibson.

IV

There was no violation of Alabama’s “knock and announce” statute in the execution of the search warrant. 'Alabama Code § 15-5-9 (1975).

Tallassee Police Officer Billy Clayton testified that when the officers arrived at McClellan’s house to execute the warrant, he saw McClellan sitting in a chair inside the house. Officer Clayton testified that “[a]s we pulled up in the yard he looked directly at us and immediately jumped out of the chair and started toward the back of the house.” Clayton noticed that McClellan had a bag in his hand.

Narcotics Agent Gibson testified that he “saw Mr. McClellan through the window in the house. And, as we pulled up in the yard, he got up and ran in—Well, he ran towards the bathroom. I pursued him inside the house telling him that we were police officers, and we had a search warrant for his arrest.” McClellan was discovered in a bathroom attempting to flush marijuana down the commode.

McClellan testified that when he saw the officers he “took off” because he “wanted to flush the marijuana.”

The facts of this case furnish the exigent circumstances which constitute an exception to the knock and announce rule and which justify the • officers’ conduct. The officers’ conduct and immediate entry into the house were necessary to prevent the destruction of evidence. Laffitte v. State, 370 So.2d 1108, 1110 (Ala.Cr.App.), cert. denied, Ex parte Laffitte, 370 So.2d 1111 (Ala.1979). See also Irwin v. State, 415 So.2d 1181 (Ala.Cr.App.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982). We find that the warrant was properly executed.

V

After the trial judge had sentenced McClellan to two years’ imprisonment, the Assistant District Attorney stated: “Judge, it also requires some mandatory fine.” The trial judge then stated: “In addition to that you will have to pay a fine of $1,000.00.”

There is no mandatory fine upon a conviction for possession of controlled substances under Alabama Code § 20-2-70 (1975). The imposition of a fine in such cases is entirely within the discretion of the trial judge. Since this matter was brought to the attention of the trial judge in the motion for new trial and since he declined to amend his sentence, we must assume that he intended to impose the fine and was not misled by the “misrepresentation” of the District Attorney.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Richard Nolan TAYLOR v. STATE.
    8 Div. 19.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Charles A. McGee, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appeal is from a judgment denying this appellant’s petition for writ of error coram nobis after an evidentiary hearing thereon. The ultimate relief sought by the petition was that the court “Vacate the sentence previously imposed upon Petitioner” when petitioner was convicted on September 15, 1981, of kidnapping in the first degree on a plea of guilty and sentenced to imprisonment for thirty-five years.

In the “STATEMENT OF THE ISSUES,” appellant narrows the controversy on appeal by asking whether “the court should have found the appellant guilty upon his plea of guilty when the colloquy between the court and appellant demonstrated defendant was not guilty of the crime of kidnapping in the first degree?”

The court reporter’s transcript of the hearing on defendant’s plea of guilty, at which defendant was represented by employed counsel, shows an extended colloquy among the trial judge, defendant and defendant’s attorney pertaining to defendant’s knowledge and understanding of his constitutional rights in defense of the indictment; at that hearing defendant acknowledged in writing over his signature that he understood his essential constitutional rights and that the lowest and highest punishment for kidnapping in the first degree was “ten yrs. to Life.” The record shows also that his attorney at the time executed a declaration showing that he had explained to the defendant and that “to the best of my [his] knowledge and belief, the defendant understands the matter set forth in his declaration” and that the attorney recommended to the court that the court accept the defendant’s plea of guilty.

In contending that the colloquy at the hearing on the plea of guilty failed to show that defendant was guilty of the crime of kidnapping in the first degree, appellant’s attorney emphasizes the language of our Criminal Code Section 13A-6-43, Code of 1975, in particular part as follows:

“(a) A person commits the crime of kidnapping in the first degree if he abducts another person with intent to:
“(4) Inflict physical injury upon him, or to violate or abuse him sexually;
“(b) A person does not commit the crime of kidnapping in the first degree if he voluntarily releases the victim alive, and not suffering from serious physical injury, in a safe place prior to apprehension. The burden of injecting the issue of voluntary safe release is on the defendant, but this does not shift the burden of proof. This subsection does not apply to a prosecution for or preclude a conviction of kidnapping in the second degree or any other crime.”

We quote, from the court reporter’s transcript, part of the colloquy among the judge, defendant and defendant’s attorney as to what occurred between defendant and the alleged victim of the kidnapping, as follows:

“THE COURT: I don’t think you understand what the Court asked. Tell me what happened. You said you are guilty of it?
“MR. TAYLOR: Yes, sir.
“THE COURT: Go ahead and tell where you first saw her that day.
“MR. TAYLOR: That morning.
“THE COURT: Where did you see her at?
“MR. TAYLOR: Before she got on the bus.
“THE COURT: Where did you pick her up later on at?
“MR. TAYLOR: Chaney’s Chapel at Dutton.
“THE COURT: Is that a church?
“MR. TAYLOR: Yes, sir; down at the grave yard.
“THE COURT: What did y’all do after you got her in the trunk of the car?
“MR. TAYLOR: I covered her up and took off.
“THE COURT: Where did you go to?
“MR. TAYLOR: Down toward the bluff road on Bluff Road and turned off an old abandoned dump.
“THE COURT: And you stopped down there?
“MR. TAYLOR: Yes, sir.
“THE COURT: What happened then?
“MR. TAYLOR: Then she got out; she just got out of the trunk.
“THE COURT: You let her out, did you not?
“MR. TAYLOR: Yes, sir.
“THE COURT: Just tell what happened then when you let her out of the trunk.
“MR. TAYLOR: Then she took her clothes off.
“THE COURT: You took them off or she did?
“MR. TAYLOR: No. She took them off.
“THE COURT: Did you tell her to take them off?
“MR. TAYLOR: Yes, sir.
“THE COURT: And she took them off?
“MR. TAYLOR: Yes, sir.
“THE COURT: Then what happened?
‘MR. TAYLOR: Then just rape.
“THE COURT: You knew her age at that time?
“MR. TAYLOR: Yes, sir.
“THE COURT: What was her age?
“MR. TAYLOR: 12.
“THE COURT: How long had you been knowing her?
“MR. TAYLOR: Ever since I was 5 or 6. I was about 6.
“THE COURT: Let me ask you this? Have you conferred with and advised your attorney concerning the facts of this case and his rights in the case?
“MR. DAWSON [Defendant’s attorney]: Yes, sir.
“THE COURT: Do you recommend to the Court to accept the plea of guilty by the defendant?
“MR. DAWSON: Yes, sir.
“THE COURT: Let the record show that the Court finds that the defendant’s plea of guilty is voluntarily and understandingly made; is that right?
“MR. TAYLOR: Yes, sir.”

We agree with appellant’s counsel that the transcript of the hearing of defendant’s plea of guilty shows that he “voluntarily releases [released] the victim alive ... pri- or to apprehension,” which constitutes a part of the first sentence of § 13A-6-43(b) preclusive of guilt of kidnapping in the first degree, but we are in disagreement with appellant as to his contention as to the remainder of the preclusive sentence. In our opinion, the rape by defendant of the twelve-year-old constituted “serious physical injury” to her and she was not left in a safe place. This conclusion of ours is strengthened by the concluding part of the testimony of Richard Nolan Taylor on the hearing of his petition for writ of error coram nobis:

“BY MR. DUKE [Attorney for the State]:
“Q. Wasn’t it at a garbage-dump type place there on the bluff?
“A. From what my Mom and everybody told me, it was just a little old road on the side where people had been dumping things, you know. I don’t know if it was called a dump or not.
“Q. What time did you leave her out there?
“A. I don’t remember.
“Q. Was she conscious or unconscious when you left her?
“A. Conscious.
“Q. Was she clothed?
“A. I don’t remember if she was or not. “Q. You don’t remember if she had any clothes on or not?
“A. No.
“Q. Do you remember if her hands were tied or her legs?
“A. I think so.
“Q. You remember that her hands and legs were tied when you left?
“A. I think so.”

In our opinion, the judgment of the trial court in denying after a hearing the petition for writ of error coram nobis was correct and should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Marvin A. WILBOURN v. STATE.
    8 Div. 60.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Jack B. Sabatini of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Marvin A. Wilbourn was indicted for escape in the third degree. A jury convicted him of resisting arrest. Sentence was six months’ imprisonment in the county jail.

The only issue raised on appeal is whether the offense of resisting arrest is a lesser included offense of escape in the third degree.

“A person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of himself or of another person.” Alabama Code § 13A-10-41(a) (1975). “A person commits the offense of escape in the third degree if he escapes or attempts to escape from custody.” § 13A-10-33(a).

The question of whether one offense is included within another is governed by § 13A-1-9. The only portion of that statute which is relevant to this case is subsection (a)(1) which provides that an offense is an included one if “[i]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.” Here, it is obvious and clear that the proof necessary to establish the offense of third degree escape will not of necessity establish every element of the offense of resisting arrest. § 13A-1-9 Commentary. “To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser.” Sharpe v. State, 340 So.2d 885, 887 (Ala.Cr.App.), cert. denied, 340 So.2d 889 (Ala.1976). See also Payne v. State, 391 So.2d 140, 143 (Ala.Cr. App.1980); Mayes v. State, 350 So.2d 339, 343 (Ala.Cr.App.1977). The statutory definition of custody makes this clear: “Custody. A restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court_” § 13A-10-30(b)(1).

The initial issue we must answer is whether this question was preserved for review. Here, there was no objection to the oral charge of the trial judge. This issue was first raised on a motion for new trial. Although this issue was not raised as early as it should have, it was preserved by the motion for new trial in view of the fact that the accused has a constitutional right to be informed of the charges against him. Ex parte Washington, 448 So.2d 404 (Ala.1984) (reversible error to instruct jury on universal malice murder where indictment charges only intentional murder).

“The defendant is called upon to answer only the specific charge contained in the indictment. Underwood v. State, 33 Ala. App. 314, 33 So.2d 379 (1948). ‘No proposition of law is more fundamental than the one requiring that the proof at trial must correspond with the material allegations of the indictment.’ Gray v. State, 346 So.2d 974, 978 (Ala.Cr.App.1976), cert. quashed, 346 So.2d 978 (Ala.1977); Owens v. State, supra, 46 Ala. App. [591] at 592, 246 So.2d [478] at 478.” Ex parte Hightower, 443 So.2d 1272, 1274 (Ala.1983) (There was a fatal variance between indictment charging sexual intercourse without consent and proof of sexual intercourse with consent).

The general rule is that questions relating to the court’s oral charge may not be raised for the first time on a motion for new trial. Gurley v. State, 216 Ala. 342, 344, 113 So. 391 (1927); Coleman v. State, 420 So.2d 833, 834 (Ala.Cr.App.1982). However, here the motion for a new trial raised both the grounds of fatal variance and that the verdict was contrary to the law. Both of these issues are proper grounds for a motion for new trial. 24 C.J.S. Criminal Law §§ 1451, 1452 (1961); A.R.Crim.P.Temp. 13(a)(3)(i). “A verdict is contrary to law so as to warrant a new trial, ... where accused is found guilty of an offense not charged in the indictment.” 24 C.J.S. Criminal Law § 1451 (1961).

Only one conclusion is proper.

“The verdict rendered in this case was erroneous in that it did not respond to the issues raised by the indictment, but found the defendant guilty of an offense with which he was not charged. No valid judgment can be rendered on an invalid verdict.” Hamilton v. State, 35 Ala. App. 570, 571, 50 So.2d 449 (1951).

Under Hamilton, the judgment of conviction must be reversed and rendered.

REVERSED AND RENDERED.

All Judges concur.


author: HARRIS, Judge.

text:
    Hubert Wayne ROBERTS v. TOWN OF LEIGHTON.
    8 Div. 930.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.

      Bryce U. Graham, Tuscumbia, for appellant.
    Steven K. Aldridge of Hewlett & Black, Tuscumbia, for appellee.
   HARRIS, Judge.

Hubert Wayne Roberts was prosecuted in municipal court, and on appeal in circuit court, for driving under the influence of alcohol “in violation of Municipal Ordinance 32-5A-191 (1975-A-2).” The jury found the appellant guilty as charged, and the trial court sentenced him to serve three months in the Colbert County jail, and fined him $300 plus court and prosecution costs, but suspended said sentence and placed the appellant on probation for one year on the condition that the appellant not drive a motor vehicle and attend AA meetings during the period of probation.

On this appeal the appellant seeks a reversal due to the prosecutor’s failure to plead and prove the municipal ordinance which he allegedly violated. The appellee concedes the fact that it failed to plead and prove the municipal ordinance cited in the complaint, but contends that the circuit court was “properly entitled to take ‘judicial notice’ of the Ordinance in question,” because it is a “verbatim adoption” of § 32-5A-191, Code of Alabama 1975 .

This same issue, involving a Mobile, Alabama, city ordinance and § 13A-6-22, Code of Alabama 1975, was presented in Maxwell v. City of Mobile, 439 So.2d 714 (Ala.Crim.App.), reversed, 439 So.2d 715 (Ala.1983). The Alabama Supreme Court reversed this court’s decision that the error raised on appeal had not been properly preserved at trial, but both courts agreed that even where there is a corresponding State statute, a trial court cannot take judicial notice of a municipal ordinance unless authorized by statute, and that in a case such as this, where there is no such statutory authorization for judicial notice and the ordinance allegedly violated has not been pleaded and proved, the prosecution has failed “to make out its case against the defendant and the trial court has erred in pronouncing judgment of conviction.” Maxwell v. City of Mobile, supra, and cases therein cited.

Therefore, on the authority of Maxwell v. City of Mobile, 439 So.2d 715, supra, having found this error properly preserved at trial, we have no recourse but to reverse appellant’s conviction below and remand this cause for a new trial.

REVERSED AND REMANDED.

All the Judges concur.

      . Municipal Ordinance 32-5A-191 (1975-A-2) is not documented in the record. Therefore, the State’s contention that it is a "verbatim adoption” of § 32-5A-191, Code of Alabama 1975, is not therein substantiated.


author: TYSON, Judge.

text:
    Michael SKINNER v. STATE of Alabama.
    7 Div. 229.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.

      William P. Powers, Columbiana, for appellant.
    Charles A. Graddick, Atty. Gen. and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The appellant was indicted for escape in the first degree in violation of § 13A-10-31, Code of Alabama 1975, and the jury found him guilty as charged in the indictment. Following a Habitual Felony Offender hearing, the appellant was sentenced to life imprisonment in the penitentiary.

The evidence in the case at bar showed that the appellant, Michael Skinner, escaped from the Shelby County Jail sometime between 11:00 p.m. on May 26, 1983, and 5:15 a.m. on May 27, 1983.

I

During the trial of this case, the State called Harold Walden, a Circuit Judge for the Eighteenth Judicial Circuit, to prove the appellant had been properly incarcerated in the Shelby County Jail during the period when the escape occurred. Judge Walden’s testimony concerned a guilty plea he had accepted from the appellant. During the examination of Judge Walden, the following occurred:

“Q. Do you recall whether or not you advised him of the minimum and maximum sentences?
“MR. POWERS: Just a minute Your Honor, I would like to object at this point as to leading questions. This is getting down to the heart of some matters and Defense Counsel feels that it would be best to ask what was said rather than leading the witness.
“MR. WILLIAMS: If it please, may we respond, Your Honor?
“THE COURT: Yes.
“MR. WILLIAMS: If it please the Court, I had not even finished my question and further—
“MR. POWERS: Well, I apologize for interrupting.
“MR. WILLIAMS: It was in the form of, do you recall whether or not you gave such a minimum and maximum sentence and that would be the last question we would ask of this witness, Your Honor.
“THE COURT: Go ahead and finish your question, please.
“Q. Do you recall whether or not in Mr. Skinner’s plea you informed him of the minimum and maximum sentence available under Alabama law?
“MR. POWERS: I object to that as being suggestive of the answer, Your Honor, and to being a leading question.
“THE COURT: Well, of course, one of the considerations is whether or not the witness testifying is susceptible to having words put in his mouth. I overrule the objection.
“Q. Do you recall whether or not—
“MR. POWERS: Your Honor, I object and move for a mistrial as being a comment on the competency and weight to be given to the witness’ answer.
“THE COURT: What statement particularly?
“MR. POWERS: Of the Court.
“THE COURT: Well, I was ruling on the evidence and the jury understands that the jury is the sole determiner of the facts in any criminal case. I will state that to you very categorically now — you judge the evidence and credibility of all witnesses who testify. I play no part in that whatsoever.
“MR. POWERS: I move for a mistrial, Your Honor.” (R. 70-70A)

The appellant contends this cause should be reversed because the trial judge improperly commented on the evidence. We do not view the trial judge’s statement as an improper comment on the evidence. It was merely an explanation of his reasoning in overruling defense counsel’s objection. Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (Ala.Crim.App.1972); Cooper v. State, 393 So.2d 495 (1981).

Furthermore, if the trial judge’s statement had been found to be an improper comment on the evidence, the error was cured by the trial judge’s instructions to the jury as noted.

The motion for mistrial was properly overruled. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967) and authorities cited therein.

II

The appellant objects to the State introducing evidence that he had been previously convicted of a felony. While evidence of the commission of other crimes by the appellant is generally inadmissible to prove bad character, such was not the purpose of the evidence here presented by the State.

Section 13A-10-31(a) Code of Alabama provides:

“(a) A person commits the crime of escape in the first degree if:
“(1) He employs physical force, a threat of physical force, a deadly weapon or a dangerous instrument in escaping or attempting to escape from custody; or
“(2) Having been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction.”

One of the elements of escape is that the accused has been convicted of a felony. It was necessary for the State, in order to establish this element of the offense at issue, to present evidence of the conviction for which the appellant was incarcerated at the time of the escape. Therefore, we find no basis for reversal on this issue.

Ill

Lastly, the appellant contends he was improperly sentenced under the Habitual Felony Offender Act. The State presented evidence of four prior felonies, all of which were based on guilty pleas. Defense counsel contends reversible error occurred because the record does not indicate whether the standards set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) were followed when each of these guilty pleas were accepted.

“Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), states that before a trial judge may sentence a defendant following a plea of guilty, he must inquire if the defendant’s plea has been given knowingly and voluntarily. However, this rule of law has no application to the instant case. It only applies during the sentencing of the defendant following his guilty plea. There is no authority that these matters must be reviewed when that conviction is used pursuant to the Habitual Offender Act.
“A plea of guilty is a conviction itself. This is not the proper forum for attacking a prior conviction used during a Habitual Offender hearing. The proper forum for attacking the validity of a prior conviction would be by a petition for a writ of error coram nobis. See Mayola v. State, 337 So.2d 105 (Ala.Crim.App. 1976).”

Jones v. State, 431 So.2d 1367 (Ala.Crim. App.1983). Scott v. State, [Ms. 1 Div. 535, July 5, 1983], (Ala.Crim.App.1983).

Furthermore, the State introduced certified copies of each of the minute entries and docket sheets of the appellant’s previous conviction. Thus, this was the proper method of proving these prior convictions. Thomas v. State, 395 So.2d 1105 (Ala.Crim. App. 1981).

There is no merit to the appellant’s contention on this issue.

No error appears in this record.

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

AFFIRMED.

All the Judges concur.


author: ALDERMAN, Chief Justice. McDONALD, Justice,

text:
    JOHN F. KENNEDY MEMORIAL HOSPITAL, INC., a Florida corporation; Gladys Landy, individually and as the duly appointed Guardian of the person of Francis Landy, deceased; and Roger Crews, M.D., Appellants, v. The Honorable David H. BLUDWORTH, State Attorney, in and for the Fifteenth Judicial Circuit of the State of Florida, Appellee.
    No. 63769.
    Supreme Court of Florida.
    May 24, 1984.

      Eric B. Meyers and James C. Cunningham, Jr., Miami, and John R. Day of Shutts & Bowen, West Palm Beach, for petitioner.
    David H. Bludworth, State Atty., and Lisa J. Campbell, Asst. State Atty., West Palm Beach, for respondent.
    Joel T. Strawn of MacMillan, Newett, Strawn, Stanley & Botos, Delray Beach; for Fla. Hosp. Ass’n, Inc., amicus curiae.
    Thomas A. Horkan, Jr., Tallahassee, for amicus curiae.
   ALDERMAN, Chief Justice.

We accept jurisdiction to review the decision of the District Court of Appeal, Fourth District, in John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 432 So.2d 611 (Fla. 4th DCA 1983). The district court has certified the following question to us as one of great public importance:

In the case of a comatose and terminally ill individual who has executed a so-called “living” or “mercy” will, is it necessary that a court appointed guardian of his person obtain the approval of a court of competent jurisdiction before terminating extraordinary life support systems in order for consenting family members, the attending physicians, and the hospital and its administrators to be relieved of civil and criminal liability?

432 So.2d at 620.

We answer the certified question in the negative and hold that court approval to terminate extraordinary life support systems was not necessary in this type of case in order to relieve the consenting family members, the attending physicians, and the hospital and its administrators of civil and criminal liability.

Francis B. Landy was admitted to John F. Kennedy Memorial Hospital in April 1981. He was terminally ill, and within two days he stopped breathing and was placed on a mechanical ventilator. He had suffered permanent brain damage and was held on the threshold of death through the use of extraordinary artificial means developed by modern medical technology. He was unable to breathe for himself and was unable to think and to give a response. A tube was placed in his trachea, and an artificial support system breathed for Mr. Landy. When placed on the ventilator, Mr. Landy was suffering from acute respiratory failure, chronic interstitial fibrosis and gastrointestinal bleeding. Over the next several days after having been placed on the mechanical ventilator, it became obvious to his doctor that, because of his neurological function and his respiratory function, it was impossible to wean him from the ventilator. His mental status continued to deteriorate. Mr. Landy’s doctor diagnosed his condition as terminal.

Mrs. Landy delivered to the treating doctor a written document entitled “Mercy Will and Last Testament” that had been signed by Mr. Landy and two witnesses on April 16, 1975. As recently as February 1981, Mrs. Landy had promised her husband that if he were hospitalized she would make this document a part of his hospital record. Among other things, it stated that Mr. Landy did not wish to be kept alive through the use of extraordinary life support equipment such as a respirator.

Mr. Landy was declared incompetent on April 23, 1981, by the probate court and his wife was appointed guardian of his person. She requested that all extraordinary life support systems be discontinued. Fearing potential civil and criminal liability, the hospital, on the same day, filed a declaratory relief action asking the court to determine its rights and liabilities relating to continuation or discontinuation of the artificial means that were maintaining and sustaining Mr. Landy’s body and preventing his natural death. In its amended petition, the hospital stated that prior to the emergency hearing on this issue, Mr. Landy had died on April 24, 1981, but contended that this matter was not moot because there were numerous other incompetent terminal patients at the hospital who were being sustained by extraordinary artificial life support systems. The state attorney’s motion to dismiss the action on the basis of mootness was denied by the trial court. The trial court decided that notwithstanding Mr. Landy’s death, the issue before it was justiciable. It then held that in order to avoid potential criminal and civil liability for termination of life support systems under the facts of this case, appointment of a guardian to act on the incompetent patient’s behalf, the filing of a petition for authority to order termination, and court approval were required. These cases, it concluded, must be decided by the courts on a case-by-case basis.

The hospital then appealed the trial court’s decision requiring prior court approval in this type of case. The district court upheld the trial court’s finding that a justiciable issue existed. It then expressly recognized that, based on the constitutional right of privacy, a terminally ill comatose patient had the same right as a conscious and competent person suffering from terminal illness to refuse or discontinue extraordinary medical treatment and that, in order for this right to be truly viable, there must be a corresponding capability to exercise it. But the district court determined that the capability of a conscious and competent terminally ill person to make this decision and the capability of Mr. Landy, who was comatose and totally unresponsive but had given direction through a “mercy will,” were not equatable insofar as the exercise of that right without court approval. In the first instance, the district court recognized that court approval was not necessary, while in the second instance, it held that court approval was necessary before life-sustaining procedures could be suspended. It further explained that upon application to a court for termination, it becomes incumbent upon the court to determine what the individual would want done if he were conscious and competent. It concluded that the “mercy will,” when proved by testimony or recent affidavit of at least one disinterested witness as to its due execution and as to the patient’s mental capacity at the time of execution, could be received into evidence and could be considered the best evidence of the patient’s intention.

Before we can answer the certified question, we must first determine what rights comatose and terminally ill persons have. We agree with the district court that terminally ill incompetent persons being sustained only through use of extraordinary artificial means have the same right to refuse to be held on the threshold of death as terminally ill competent persons.

The tremendous advancements in medical technology in the last several years have made it possible to sustain a person who has minimal brain functioning but who does not meet the definition of “brain death” under section 382.085, Florida Statutes (1983). It is now possible to hold such persons on the threshold of death for an indeterminate period of time by utilizing extraordinary mechanical or other artificial means to sustain their vital bodily functions. The procedures used can be accurately described as a means of prolonging the dying process rather than a means of continuing life.

We previously have addressed the right of terminally ill competent adults to discontinue extraordinary medical treatment in Satz v. Perlmutter, 379 So.2d 359 (Fla.1980), wherein we adopted as our own the opinion of the District Court of Appeal, Fourth District, 362 So.2d 160 (Fla. 4th DCA 1978). Mr. Perlmutter, who was seventy-three years old, suffered from Lou Gehrig’s disease for which there was no cure. Although his condition had progressed to the point of incapability of movement and inability to breathe without a mechanical respirator, he was in control of his mental faculties and legally competent. He sought, with family approval, the removal of the respirator which, according to his physician, would result in his death in less than one hour. The Fourth District considered the state’s interests of preservation of life, protection of third parties, prevention of suicide, and maintenance of the ethical integrity of the medical practice, and concluded that none of these outweighed Mr. Perlmutter’s right to have the respirator removed from his trachea. It adopted the view of the line of cases from other jurisdictions that would allow Mr. Perlmutter the right to refuse or discontinue treatment based upon a constitutional right of privacy. As to the state’s assertion of its overriding duty to preserve life, the court responded:

There can be no doubt that the State does have an interest in preserving life, but we again agree with Saikewicz [Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) ] that “there is a substantial distinction in the State’s insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long and at what cost to the individual [his] life may be briefly extended.” (Id. 425-426.) In the case at bar the condition is terminal, the patient’s situation wretched and the continuation of his life temporary and totally artificial.

362 So.2d at 162. Moreover, relative to the ethics of medical practice on this question, the Fourth District, drawing from the seminal case of In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), adopted the reasoning of Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977), that prevailing ethical practice recognizes that the dying are more often in need of comfort than treatment and that the right to refuse treatment in appropriate circumstances is consistent with existing medical mores. In conclusion, the Fourth District stated that Mr. Perlmutter should be allowed to make the choice to die with dignity and explained:

It is all very convenient to insist on continuing Mr. Perlmutter’s life so that there can be no question of foul play, no resulting civil liability and no possible trespass on medical ethics. However, it is quite another matter to do so at the patient’s sole expense and against his competent will, thus inflicting never ending physical torture on his body until the inevitable, but artificially suspended, moment of death. Such a course of conduct invades the patient’s constitutional right of privacy, removes his freedom of choice and invades his right to self-determine.

362 So.2d at 164.

This right of terminally ill patients should not be lost when they suffer irreversible brain damage, become comatose, and are no longer able to personally express their wishes to discontinue the use of extraordinary artificial support systems. We recognized in Perlmutter that the state’s interest against termination of extraordinary artificial life support weakens and the individual’s right to privacy increases as the bodily invasion becomes greater and the prognosis dims. This principle is just as applicable to the present case. The issue in these cases is not whether a life should be saved. Rather, it is how long and at what cost the dying process should be prolonged.

By concluding that terminally ill comatose patients have the right to refuse the continuation of extraordinary means of artificial life support, we acknowledge that there must be a means by which this right may be exercised. This right and the manner in which the corresponding capability will be exercised have been addressed in decisions from other jurisdictions, several of which are discussed at length in the Fourth District’s decision.

The primary concern of these cases is that this valuable right should not be lost because the noncognitive and vegetative condition of the patient prevents a conscious exercise of the choice to refuse further extraordinary treatment. The question is who will exercise this right and what parameters will limit them in the exercise of this right. In order to ensure this right, the procedure for implementing it must not be so cumbersome so as to effectually eliminate it. To require prior court approval for termination of the life support systems in this type of case is too burdensome, is not necessary to protect the state’s interests or the interests of the patient, and could render the right of the incompetent a nullity.

The New Jersey Supreme Court in In re Quinlan held that the right of Karen Quin-lan, who was comatose, noncognitive, and vegetative, to decide that her life should not be maintained by artificial means could be exercised by her guardian father and her family who would render their best judgment as to whether Karen would exercise her right in these circumstances. They would exercise this right in consultation with her attending physicians and the hospital ethics committee or like body, who would have to conclude that there is no reasonable probability of her ever emerging from her present condition to a cognitive sapient life and that her life support apparatus should be discontinued. Under these circumstances, if artificial life support systems were withdrawn, the court held, there would be no civil or criminal liability therefor on the part of any participant. The Quinlan court rejected the requirement of prior court approval as a general rule and maintained that as a general practice these decisions should be made within the patient-doctor-family relationship.

The Washington Supreme Court has also recently addressed the issue of who may exercise the incompetent’s right to refuse further artificial death prolonging measures and how this right should be exercised. In re Coyler, 99 Wash.2d 114, 660 P.2d 738 (1983), involved an incompetent patient who had suffered massive brain damage and had become comatose. She was being kept alive by artificial life support systems. The prognosis of any meaningful existence was zero. That court found that Coyler’s situation was similar to Quinlan’s. It chose a course similar to Quinlan, reiterated that as a general practice these decisions are to be controlled by the patient-doctor-family relationship, and held that judicial intervention in every decision to withdraw life-sustaining treatment is not required. It expressed concern that the court could not respond in a timely manner for the relief sought and reasoned that in this situation and where physicians and family agree, court intervention would be little more than a formality. The Washington court, however, did require the appointment of a guardian to use his best judgment and to exercise, when appropriate, an incompetent’s right to refuse life-sustaining treatment.

In a recent case of first impression in Florida, the Second District Court of Appeal reviewed a trial court’s order authorizing the removal of a life support system from a ten-month-old infant. In re Guardianship of Barry, 445 So.2d 365 (Fla. 2d DCA 1984). In that case the infant had been on the life support system since birth, was in a permanent vegetative state with in excess of 90 percent of his brain function gone, and was without cognitive brain function. He was terminally ill, and, even if the life support system was maintained, he was not expected to live much beyond two years. His condition was permanent and irreversible.

There was no question that this infant was incompetent and, unlike Mr. Perlmut-ter, could not personally exercise his constitutional right of privacy to require removal of the life support system. The district court affirmed the trial court’s order and concluded that the interests of the terminally ill incompetent infant outweighed those of the state and that his parents could validly assert a privacy interest on his behalf. The district court also said that where the question concerns a young child, it did not think the parents must always qualify as legal guardians and seek judicial approval to discontinue these extraordinary measures. It concluded that a decision by parents supported by competent medical advice that their young child suffers from a permanent, incurable, and irreversible physical or mental defect likely to soon result in the child’s death should ordinarily be sufficient without court approval. The court pointed out, however, that although judicial intervention need not be solicited as a matter of course, the courts must always be open to hear these matters on request of the family, guardian, affected medical personnel, or the state. It acknowledged that in cases where doubt exists or where there is a lack of concurrence among the family, physicians, and the hospital, or where an affected party simply desires a judicial order, then the court must be available to consider the matter.

We agree with the analyses of Quinlan, Coyler, and Barry except that we reject that part of Quinlan that requires the concurrence by a hospital “ethics committee,” and we reject that part of Coyler that requires the appointment of a guardian in all such cases. We hold that the right of a patient, who is in an irreversibly comatose and essentially vegetative state to refuse extraordinary life-sustaining measures, may be exercised either by his or her close family members or by a guardian of the person of the patient appointed by the court. If there are close family members such as the patient’s spouse, adult children, or parents, who are willing to exercise this right on behalf of the patient, there is no requirement that a guardian be judicially appointed. However, before either a close family member or legal guardian may exercise the patient’s right, the primary treating physician must certify that the patient is in a permanent vegetative state and that there is no reasonable prospect that the patient will regain cognitive brain function and that his existence is being sustained only through the use of extraordinary life-sustaining measures. This certification should be concurred in by at least two other physicians with specialities relevant to the patient’s condition.

The decision to terminate artificial life supports is a decision that normally should be made in the patient-doctor-family relationship. Doctors, in consultation with close family members are in the best position to make these decisions. The focal point of such decisions should be whether there is a reasonable medical expectation of the patient’s return to a cognitive life as distinguished from the forced continuance of a vegetative existence.

This brings us to the certified question in this ease. We have recognized that terminally ill incompetent persons being sustained only through use of extraordinary artificial means have the same right to refuse to be held on the threshold of death as terminally ill competent persons. Since incompetent persons may not exercise this right while they are incompetent, there must be a means by which this right may be exercised on their behalf, otherwise it will be lost. The means developed by the courts to afford this right to incompetent persons is the doctrine of “substituted judgment.” Under this doctrine close family members or legal guardians substitute their judgment for what they believe the terminally ill incompetent persons, if competent, would have done under these circumstances. If such a person, while competent, had executed a so-called “living” or “mercy” will, that will would be persuasive evidence of that incompetent person’s intention and it should be given great weight by the person or persons who substitute their judgment on behalf of the terminally ill incompetent.

To be relieved of potential civil and criminal liability, guardians, consenting family members, physicians, hospitals, or their administrators need only act in good faith. For them to be held civilly or criminally liable, there must be a showing that their actions were not in good faith but were intended to harm the patient. Under the circumstances of this and similar cases, prior court approval is not required. The courts, however, are always open to hear these matters if request is made by the family, guardian, physician, or hospital. Disagreement among the physicians or family members or evidence of wrongful motives or malpractice may require judicial intervention upon the filing of an appropriate petition.

Accordingly, we answer the certified question in the negative and quash the decision of the district court. •

It is so ordered.

BOYD, OVERTON and EHRLICH, JJ., concur.

McDONALD, J., concurs in result only with an opinion.

SHAW, J., concurs in result only.

McDONALD, Justice,

concurring in result only.

I agree that the certified question should be answered in the negative. This disposes of any issue under the facts of this case. I hesitate to plunge further and suggest answers to factual situations which are not before us and would prefer stopping this opinion by responding to the certified question.

If required to go further, my present inclination is to require the appointment of a guardian to act for an incompetent adult. An incompetent can act only through a guardian; no’ one but a guardian can substitute his judgment for a ward. Certainly, if an incompetent cannot convey property except through a guardian, an equal safeguard should apply to the cessation of life. The guardian is charged with the responsibility of acting in the best interests of the ward and would be so guided when exercising his discretion in this sensitive area. That guardian would be authorized to consent to the termination of life support systems when that consent is made in conjunction with competent medical advice as set forth in the majority opinion.


author: EHRLICH, Justice.

text:
    STATE of Florida, Petitioner, v. Thomas BAKER, Respondent.
    No. 63807.
    Supreme Court of Florida.
    June 7, 1984.

      Jim Smith, Atty. Gen., and Sean Daly, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and David A. Henson, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondent.
   EHRLICH, Justice.

This is a petition to review a decision of a district court. Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983). The decision conflicts with the decision of another district court, Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Baker and an accomplice were arrested after an armed robbery. Baker was charged with: Count I, aggravated assault with a deadly weapon, section 784.021(l)(a), Florida Statutes (1979), because he pointed a shotgun at the robbery victim; Count II, armed robbery, section 812.13(2)(a), Florida Statutes (1979), because he and the accomplice took money and property from the robbery victim; and Count III, attempted murder as a principal in the first degree, sections 777.011, 777.04(1), 782.04(l)(a), Florida Statutes (1979), because his accomplice shot a bystander during the robbery. Baker pleaded guilty to all three charges under a plea agreement, and was sentenced to serve five years for count I, life imprisonment for count II, and thirty years for count III. The sentences were to run concurrently with the exception of the three-year minimum sentences required for counts I and II, which were to be served consecutively. As part of the plea agreement, Baker reserved the right to appeal the sentences on all three charges on the ground that under the single transaction rule only one sentence could be imposed for the three offenses. Baker also reserved the right to appeal the consecutive three-year sentences for counts I and II.

On appeal, the district court held that the aggravated assault charge was a necessarily lesser included offense of armed robbery, and that any sentence for count I was therefore improper. The sentence for count I was reversed, and the remainder of the trial court’s judgment and sentence was affirmed. The state sought review of the reversal to this Court. We quash the district court decision.

In Vitko v. State, the defendant was charged by information with attempted armed robbery and battery. The trial judge acquitted the defendant on the attempted robbery charge and sent the case to the jury on a theory of aggravated assault. The Second District reversed the resulting conviction for aggravated assault on the ground that the information failed to allege that the defendant assaulted the victim with a deadly weapon. The information had tracked the language of the armed robbery statute, alleging only that the defendant had carried a deadly weapon during the attempted robbery. The Vitko case thus established that there was a difference between carrying a deadly weapon during a robbery, and using the weapon to commit an assault. This conflicts with the rationale of the Fifth District Court of Appeal in this case, since a necessarily lesser included offense is one whose essential elements are included within the elements of the greater offense. Bell v. State, 437 So.2d 1057, 1058 (Fla.1983); Borges v. State, 415 So.2d 1265, 1267 (Fla.1982). Since assault with a deadly weapon is not included in armed robbery under the Vitko holding, there is conflict between Vitko and the decision now before us.

In virtually every case of armed robbery, the deadly weapon carried by the perpetrator is the means by which he induces “force, violence, assault, or putting in fear,” one of the elements of any robbery, armed or unarmed. However, the statutory element which enhances punishment for armed robbery is not the use of the deadly weapon, but the mere fact that a deadly weapon was carried by the perpetrator. The victim may never even be aware that a robber is armed, so long as the perpetrator has the weapon in his possession during the offense. For double jeopardy purposes, this Court is bound to consider only the statutory elements of the offenses, not the allegations or proof in a particular case. Bell. Where an offense is not a necessarily lesser included offense, based on its statutory elements, the intent of the legislature clearly is to provide for separate convictions and punishments for the two offenses. § 775.021(4), Fla.Stat. (1979). The trial court therefore properly convicted and sentenced Baker for both counts I and II.

Although the defendant in this case was properly convicted and sentenced for both armed robbery and aggravated assault, the consecutive three-year mandatory minimum sentences may not stand. This Court held in Palmer v. State, 438 So.2d 1 (Fla.1983), that consecutive mandatory three-year sentences may not be imposed for offenses arising from the same incident. Concurrent three-year sentences would be proper.

Accordingly, we quash the district court decision and remand for action in accordance with this opinion.

It is so ordered.

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

ADKINS and OVERTON, JJ., dissent.


author: PER CURIAM.

text:
    Carl Elson SHRINER, Appellant, v. STATE of Florida, Appellee.
    No. 65452.
    Supreme Court of Florida.
    June 15, 1984.
    Robert A. Harper, Jr. and John R. Perry, and Brian Norton, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of the Eighth Judicial Circuit in and for Alachua County denying appellant’s motion for post-conviction relief. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Carl Shriner (appellant) was convicted of first-degree murder and sentenced to death following the jury’s recommendation. This Court affirmed the conviction and sentence in Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). Appellant then filed a petition for writ of habeas corpus which was denied by Shriner v. Wainwright, 570 F.Supp. 766 (N.D.Fla.), aff'd, 715 F.2d 1452 (11th Cir.1983), cert. denied,— U.S.—, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984). Appellant also joined 122 others seeking relief from allegedly unconstitutional sentences of death, which claim was denied by Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). For the reasons below, we affirm the denial by the circuit court of appellant’s motion for post-conviction relief and deny his application for a stay of execution.

Appellant raises several points in his 3.850 motion, only two of which merit discussion. He first argues that he was not a participant in bench conferences held during trial, although he concedes that he was present at trial. He has not, however, shown that he suffered any prejudice nor has he proffered what he believes transpired in these various bench conferences. It is appellant’s contention that his absence from these conferences constitutes fundamental error going to the fairness of the trial itself, but he has not shown or attempted to show that any matter was determined in which he should have been consulted. Appellant was present throughout the trial, raised no objection to the bench conferences, and expressed no desire to participate in the conferences. Under the circumstances we find no error. Cf., Thomas v. State, 65 So.2d 866 (Fla.1953).

Appellant also argues that his counsel was ineffective in failing to present nonstatutory mitigating factors during the sentencing phase of the trial. This contention is belied by the record. At the time evidence was presented to the jury for its consideration on a recommended sentence, appellant advised the jury that he did not desire that it consider any evidence of mitigation. This was done over counsel’s objection. Fifteen days later, after the jury recommended death, appellant reversed himself and sought mercy from the sentencing judge. In argument before the judge, appellant’s counsel referred to appellant’s disadvantaged upbringing and urged that the judge consider this in mitigation. He now claims that his attorney failed to fully investigate his disadvantaged upbringing and to present such non-statutory mitigating factors. Applying the standards set forth in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Knight v. State, 394 So.2d 997 (Fla.1981), we conclude that there was no substantial deficiency in the representation of appellant and if there was any, it was not prejudicial. The various affidavits that appellant now submits, seven years later, are merely cumulative to what counsel argued before the trial judge during the sentencing phase. Considering that appellant took the position only fifteen days previous that he did not desire mitigation, counsel’s argument before the judge was an admirable adjustment to appellant’s change of mind and cannot be said to constitute ineffective assistance of counsel. As Justice O’Connor observed in Strickland:

The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions....

Strickland, 104 S.Ct. at 2066.

. Appellant’s remaining points have been considered but do not merit discussion.

The denial of appellant’s 3.850 motion is affirmed. His application for a stay of execution is denied. No petition for rehearing will be entertained.

It is so ordered.

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


author: OVERTON, Justice. ALDERMAN, Chief Justice,

text:
    STATE of Florida, Petitioner, v. Willie BROWN, Respondent.
    No. 63,406.
    Supreme Court of Florida.
    June 28, 1984.
    Jim Smith, Atty. Gen. and Peggy A. Quince, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender and L.S. Al-perstein, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Second District Court of Appeal reported as Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983). The issue before the district court was whether the trial court erred in assessing against the respondent, who was adjudged partially insolvent, costs of ten dollars pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Fund); two dollars pursuant to section 943.25(4), Florida Statutes (1981); and one dollar pursuant to section 943.25(8), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Funds). The district court held that because the respondent had been adjudged insolvent, the trial court erred in assessing these costs against him. Acknowledging conflict with the decision of the First District Court of Appeal in Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982), the district court in the instant case certified the following question to be one of great public importance:

DOES AN ADJUDICATION OF INDI-GENCY UNDER SECTION 27.52, FLORIDA STATUTES (1981), AUTOMATICALLY BAR ASSESSMENT OF COSTS AGAINST A DEFENDANT PURSUANT TO SECTION 960.20 AND SECTION 943.25(4) AND (8)?

427 So.2d at 273. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed in our decision in Jenkins v. State, 444 So.2d 947 (Fla.1984), we answer the certified question in the negative. Although we disapprove the reasoning of the district court’s decision in the instant case, we approve the result reached. The assessment of costs would not be appropriate in this case because the respondent was not afforded prior notice of and an opportunity to object to the assessment of these costs.

It is so ordered.

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

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

ALDERMAN, Chief Justice,

dissenting.

I dissent for the same reasons stated in my dissenting opinion in Jenkins v. State, 444 So.2d 947 (Fla.1984).

McDONALD, J., concurs.


text:
    Fred Y. SASSO, Petitioner, v. RAM PROPERTY MANAGEMENT and Fireman’s Fund Insurance Company, Respondents.
    No. 63708.
    Supreme Court of Florida.
    June 28, 1984.

      Irvin A. Meyers and Sherry L. Davis of Meyers & Mooney, Orlando, for petitioner.
    Randy Fischer of Haas, Boehm, Brown, Rigdon & Seacrest, Orlando, for respondents.
   PER CURIAM.

This case comes before us on a petition to review a decision of the First District’ Court of Appeal, Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983). The district court declared valid the state statute at issue here, and we therefore have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We approve the district court decision.

Ram Property Management hired Sasso as a landscape gardener in 1979. Sasso was 78 at the time, but told Ram he was born in 1917, believing he wouldn’t get the job if his real age was known. In September 1979, Sasso injured his arm on the job. Respondents paid temporary total disability and medical benefits until Sasso reached maximum medical improvement. His arm was permanently impaired, and Sasso was unable to find employment. He filed a complaint for permanent total disability and wage-loss benefits under section 440.-15(3)(b), Florida Statutes (1979). The deputy commissioner found Sasso ineligible for permanent total disability payments, and denied wage-loss benefits because section 440.15(3)(b)3.d. cut off wage-loss benefits at age sixty-five. Sasso appealed to the First District, which affirmed. The district court held that section 440.15(3)(b)3.d. did not deny Sasso access to the courts or unconstitutionally discriminate on the basis of age.

Sasso urges that the workers’ compensation law, which abolishes the right to sue one’s employer and substitutes the right to receive benefits under the compensation scheme, has denied him access to the courts without providing a substitute. In Kluger v. White, 281 So.2d 1, 4 (Fla.1973), this Court held that “the Legislature is without power to abolish [a right to redress for a particular injury provided by statute before the adoption of the Declaration of Rights of the Florida Constitution] without providing a reasonable alternative.” Sasso argues that because he no longer may sue his employer for lost wages, and because wage-loss benefits are denied him because of his age, he has been denied any “reasonable alternative” to his right to sue, in violation of article I, section 21, of the Florida Constitution.

However, we find that Sasso has been provided with a reasonable alternative. His medical expenses were covered by workers’ compensation benefits, and he received temporary total disability benefits during his convalescence. Permanent total disability benefits were available to him if he had qualified and any future medical expenses related to his injury are also covered. Sasso thus has received some of the compensation which a tort suit might have provided had he been forced to pay his own expenses and subsequently seek redress in court. Such partial remedy does not constitute an abolition of rights without reasonable alternative as contemplated in Kluger v. White. See Acton v. Fort Lauderdale Hospital, 440 So.2d 1282 (Fla.1983); Mahoney v. Sears, Roebuck & Co., 440 So.2d 1285 (Fla.1983).

Sasso also urges us to find that section 440.15(3)(b)3.d. is unconstitutional because it denies wage-loss benefits based on the age of the injured worker. We defer to Judge Ervin’s detailed analysis in the opinion below of the standard of review to be used when statutory discrimination is based on age. 431 So.2d at 211-18. We agree with Judge Ervin that there is no basis to conclude that an elevated standard of review is appropriate in this case. The “rational basis” test is the proper standard of review. In this case the district court found three legitimate state objectives furthered by the discriminatory scheme. We cannot disagree that the objectives are legitimate, and that the age-based discrimination was rationally related to furthering those goals. We therefore must agree with the district court that section 440.-15(3)(b)3.d. does not violate Sasso’s right to equal protection under the law.

Accordingly, the decision of the district court is approved.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MCDONALD and EHRLICH, JJ., concur. “

ADKINS, J., dissents.

      . 3. The right to wage-loss benefits shall terminate:
      a. As of the end of any 2-year period commencing at any time subsequent to the month when the injured employee reaches the date of maximum medical improvement, unless during such 2-year period wage-loss benefits shall have been payable during at least 3 consecutive months;
      b. For injuries occurring on or before July 1, 1980, 350 weeks after the injured employee reaches the date of maximum medical improvement;
      c. For injuries occurring after July 1, 1980, 525 weeks after the injured employee reaches maximum medical improvement; or

        d.When the injured employee reaches age 65,

      whichever comes first.
      § 440.15(3)(b)3, Fla.Stat. (1979) (emphasis added). This section has subsequently been amended to delete the provision terminating benefits at age 65. However, section 440.15(3)(b)4 has also been amended to offset wage-loss benefits to the extent the recipient is entitled to social security retirement benefits. Ch. 83-305, § 5, Laws of Fla.

      . “Access to courts. — The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Art. I, § 21, Fla. Const.

      . The district court examined four legitimate state objectives: (1) To prevent "double-dipping” by injured workers receiving both social security retirement benefits and wage-loss benefits; (2) To reduce fringe benefits to reflect a productivity decline with age; (3) To induce older workers to retire to allow younger workers a chance to advance in their employment; and (4) To reduce the cost of workers’ compensation premiums. The district court properly found that section 440.15(3)(b)3.d. was not rationally related to preventing double-dipping since social security retirement benefits do not serve the same purpose as wage-loss benefits. The district court correctly determined that section 440.15(3)(b)3.d. was rationally related to achieving the three remaining objectives.


text:
    John S. MORROW, Petitioner, v. AMCON CONCRETE, INC. and Michigan Mutual Insurance Company, Respondents.
    No. 64106.
    Supreme Court of Florida.
    June 28, 1984.
    Scott B. Gorman and Stephen L. Rosen of Morris & Rosen, Tampa, for petitioner.
    Maureen Emmet-Miller and Peter H. Dubbeld of Riden, Watson & Goldstein, St. Petersburg, for respondents.
   PER CURIAM.

We accepted jurisdiction in this case based on the district court’s reliance on Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), to uphold the constitutionality of section 440.-15(3)(b)4., Florida Statutes (1979) against the argument that it violated petitioner’s right to equal protection under the law. Morrow v. Amcon Concrete, Inc., 433 So.2d 1230 (Fla. 1st DCA 1983). Because we are unable to find that age discrimination requires review under a standard more strict than the “rational basis” test, Sasso v. Ram Property Management, 452 So.2d 932 (Fla.1984), because we find that the age-discrimination scheme of section 440.-15(3)(b) passes the rational basis test, and for the other reasons discussed in our decision in Sasso, we approve the district court’s decision in this case.

It is so ordered.

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

ADKINS, J., dissents.

       We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.


text:
    THE FLORIDA BAR, Complainant, v. Russell K. PEAVYHOUSE, Respondent.
    Nos. 62961, 64095.
    Supreme Court of Florida.
    July 5, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Stephen 0. Rushing, Bar Counsel, Tampa, for complainant.
    Clifford R. Opp, Jr. of Peavyhouse, Gig-lio, Grant, Clark, Charlton, Opp & Martino, Tampa, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline for respondent’s violations of Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 2-110(A)(3), 6-101(A)(3), 7-101(A)(2), 7-101(A)(3), and 9-102(B)(4) of the Code of Professional Responsibility. The referee recommended that respondent receive a public reprimand and a three-year supervised probation subject to the conditions that the respondent continue psychological counseling and continue to have his caseload actively supervised by an authorized member of The Florida Bar.

We approve respondent’s guilty plea and the discipline recommended by the referee. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand. Costs in the amount of $2,049.90 are hereby taxed against respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Roger M. SHERMAN, Respondent.
    No. 64941.
    Supreme Court of Florida.
    July 5, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Mary Ellen Bateman, Bar Counsel, Tallahassee, for complainant.
    J.B. Murphy of Murphy, Beroset, Parks & Oberhausen, Pensacola, for respondent.
   PER CURIAM.

This matter is before the Court on respondent’s petition for leave to resign pending disciplinary proceedings with right to apply for reinstatement pursuant to The Florida Bar Integration Rule, article XI, Rule 11.08.

The petition states:

1. That the petitioner [respondent] was admitted to practice law in the State of Florida in 1967.
2. That on September 12, 1983, the respondent was sentenced by the United States District Court for the Northern District of Florida to one year imprisonment and a fine of $10,000.00 for his failure to file Federal Income Tax returns for the years 1978, 1979 and 1980.
3. That two grievance complaints have been filed against the petitioner [respondent], on one of which the Grievance Committee found probable cause and which is presently pending hearing before a referee pursuant to this Court’s order of January 30, 1984. This complaint is based upon petitioner’s [respondent’s] conviction and sentence by the United States District Court for the Northern District of Florida as set forth above.
4. That the remaining complaint against petitioner [respondent] consists of a charge that your petitioner [respondent] neglected to adequately represent matters entrusted to him by a client.
5.Petitioner [respondent] believes it to be in the best interest of the Florida Bar, the public, and himself that he voluntarily resign from the Florida Bar.

The Florida Bar having now filed its response supporting the petition and the Court having reviewed the same and determined that the requirements of rule 11.-08(3) are fully satisfied, the petition for leave to resign pending disciplinary proceedings with right to apply for reinstatement is hereby granted, and Roger M. Sherman’s name is hereby stricken from the roll of attorneys in the State of Florida effective this date.

It is so ordered.

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


text:
    Estine DAVIS, Appellant, v. NORTH SHORE HOSPITAL, Leonard Cantor, M.D. and John H. Kathe, M.D., Appellees.
    No. 82-1392.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, and Joel Eaton, and Philip Freidin, Miami, for appellant.
    Steven R. Berger, Wolpe & Leibowitz, Miami, Stephens, Lynn, Chernay & Klein, and Deborah Neimark, West Palm Beach, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court ruled that Section 768.56, Florida Statutes (1981), which provides for an award of reasonable attorney’s fees to the prevailing party in a medical malpractice action, is unconstitutional because it is vague and because it denies to defendants equal protection of the laws as guaranteed by the Florida Constitution and the Constitution of the United States. This appeal challenges that ruling. We agree with the Fourth District that the statute meets constitutional muster. Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983). Another panel of this court has similarly concluded that the statute is constitutional in an opinion of this same date. Young v. Altenhaus, So.2d 1039 (Fla. 3d DCA 1983). 448

Reversed and remanded.

      . Section 768.56, Florida Statutes (1981) states: 768.56 Attorney’s fees in medical malpractice actions.—
      (1) Except as otherwise provided by law, the court shall award a reasonable attorney’s fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization; however, attorney’s fees shall not be awarded against a party who is insolvent or poverty-stricken. Before initiating such a civil action on behalf of a client, it shall be the duty of the attorney to inform his client, in writing, of the provisions of this section. When there is more than one party on one or both sides of an action, the court shall allocate its award of attorney’s fees among prevailing parties and tax such fees against nonprevailing parties in accordance with the principles of equity. In no event shall a nonprevailing party be required to pay to any or all prevailing parties any amount in attorney’s fees in excess of that which is taxed against such nonprevailing party. A party who makes an offer to allow judgment to be taken against him shall not be taxed for the prevailing party’s attorney’s fees which accrue subsequent to such offer of judgment if the final judgment is not more favorable to the prevailing party than the offer. The court shall reduce the amount of attorney’s fees awarded to a prevailing party in proportion to the degree to which such party is determined by the trier of fact to have contributed to his own loss or injury.
      (2) This section shall not apply to any action filed before July 1, 1980.


text:
    Larry MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1560.
    District Court of Appeal of Florida, Second District.
    April 6, 1984.
    Rehearing Denied July 11, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant was convicted of two counts of attempted second degree murder with a firearm and two counts of armed robbery. The trial court sentenced defendant to thirty years imprisonment on each attempted murder charge, to be served concurrently, and twenty years imprisonment on each robbery charge, to be served concurrently. The sentences for robbery were to run consecutively to the attempted murder sentences. The court retained jurisdiction over one-half of each sentence imposed. On one of the attempted murder sentences, defendant was given credit for 271 days jail time served. Defendant has three points on appeal, two of which concern sentencing and have merit. We affirm defendant’s conviction but remand for correction of sentences.

First, defendant correctly argues that the court erred under section 921.-161(1), Florida Statutes (1981), by crediting on only one of his sentences the 271 days of jail time served. Generally when a defendant is sentenced on multiple charges, “he is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition of multiple charges_” Miller v. State, 297 So.2d 36, 38 (Fla. 1st DCA 1974). However, when as here, the defendant received jail time credit on one sentence which was to run concurrently with another sentence, the other sentence should be corrected to apply the credit also to that sentence. See Bevins v. State, 412 So.2d 456 (Fla. 2d DCA 1982).

Second, defendant argues that the court improperly retained jurisdiction. The court should have retained jurisdiction over one-third of the total consecutive sentences. See Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983); Wicker v. State, 438 So.2d 398 (Fla. 2d DCA 1983); § 947.16(3), Fla.Stat. (1982). Also, jurisdiction should be retained over only one of the concurrent sentences for attempted murder. See § 947.16(3), Fla.Stat. (1982).

Therefore, we AFFIRM defendant’s convictions but REVERSE and REMAND for correction of sentences consistent with this opinion.

HOBSON, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: COBB, Judge.

text:
    Robert ALDREDGE, Appellant, v. EAST COLONIAL REFUSE SERVICE, INC., a Florida corporation, Appellee.
    No. 82-1456.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.
    Rehearing Denied May 30, 1984.
    Lawrence G. Mathews, Jr., and Maura T. Smith of Smith, Mackinnon, Mathews & Berry, P.A., Orlando, for appellant.
    Keith J. Hesse of Van Den Berg, Gay & Burke, P.A., Orlando, for appellee.
   ON MOTION FOR REHEARING

COBB, Judge.

The appellant, Robert Aldredge, moves for a rehearing after a per curiam affirm-anee in this case, 451 So.2d 863. This motion is granted, our prior opinion is vacated, and this opinion is substituted therefor.

This case involves an action by Aldredge, plaintiff below, on a promissory note, filed in two counts: (1) a claim at law for enforcement of the note, and (2) an alternative equitable claim for restitution based on unjust enrichment. The execution of the note by the defendant, East Colonial Refuse Service, Inc. (ECRS), was not disputed, nor was the fact that the suit was filed within the applicable statute of limitations. Basically, the case was tried below upon the affirmative defenses of laches and failure of consideration.

Since laches was not a defense to count one, the only issue before the trial court in regard to that count was failure of consideration for the note, which was clear and unambiguous on its fact. The trial court, over objection by the plaintiff based on the parol evidence rule, improperly allowed deposition testimony from one Albert Engle, who executed the note as president of the corporate obligor, that it was his understanding that the note was to be individually paid by another shareholder of the corporation, one Oscar Page. See Sears v. James Talcott, Inc., 174 So.2d 776 (Fla. 2d DCA 1965). There was no evidence presented that this belief by Engle was a mutual mistake on the part of both the corporation (ie., Engle) and Aldredge. Nor was there any evidence that Aldredge induced the execution of the note by any fraud or misrepresentation, which would give rise to rescission. A unilateral belief by Engle that Page would pay the note, or even an agreement to that effect between Engle and Page, is no defense in this action. Moreover, since the corporation expressly assumed the obligations of the partnership (Engle, Aldredge and Page) which preceded it, the corporate note, replacing a note to Aldredge given by Engle and Page, was supported by consideration. See § 673.408, Fla.Stat. (1981). See also: Melody Tire Co. v. Zimmerman, 112 Fla. 65, 150 So. 242 (1933).

We reverse and remand for entry of judgment for the plaintiff, Aldredge, for the balance due on the note, plus interest.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

SHARP, J., dissents, without opinion.

      . Kay v. Fernandez, 373 So.2d 946 (Fla. 3d DCA 1979).