author: TYSON, Presiding Judge.

text:
    Ulysses McHELLEN v. STATE.
    4 Div. 550.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.

      J. Ronald Storey and Clarence W. Slaughter, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant, Ulysses McHellen, was charged with the possession of heroin, a controlled substance. The jury found the appellant guilty as charged and the trial court fixed punishment at five years in the penitentiary.

A search warrant was issued on August 19, 1976, for 1309 East Adams, Dothan, Alabama. The item named in the warrant was heroin, and the search was conducted at approximately 5:00 p. m. the same day.

Officer Robert Sorrells, an employee of the City of Dothan Police Department, Narcotics Division, testified that on August 19, 1976, he and two other officers conducted a search, pursuant to a warrant, of the residence of Ulysses McHellen. Officer Sor-rells, on voir dire, testified that the search warrant was issued based upon information received from a reliable informer, who in the past had supplied information which had resulted in several convictions. The warrant stated that the informer had seen heroin at such address within the past three days.

Officer Sorrells testified that the appellant was served with the search warrant at his residence, and that he and one other officer searched the house while a third officer stayed near the appellant. Officer Sorrells stated that he found a water pipe (marijuana smoking device) in the den behind a bar. Also found, according to Officers Sorrells, Lynn, and Smith, was a tin foil packet containing a white powdery substance. Officer Sorrells testified that he found the small foil packet containing the white powdery substance underneath a piece of linoleum rug in front of appellant’s refrigerator in the kitchen area.

Charles F. Brooks testified that he was employed by the Enterprise Laboratory of the Alabama Department of Toxicology and Criminal Investigation. Brooks testified that on August 23,1976, he received a large smoking pipe and a small sealed manila envelope identified as containing a white powder from Officer Sorrells. Brooks stated that he gave the pipe and white powdery substance, still in the manila envelope, to Tom Hopen, laboratory analyst from the Montgomery Laboratory.

Tom Hopen testified that he was employed by the Department of Toxicology and Criminal Investigation in Montgomery, Alabama. Hopen stated that on September 17,1976, he received a manila envelope containing a white powdery substance, along with a pipe, from Charles Brooks. Hopen testified that he performed eight different chemical tests on the white powder, which consisted of a combination of color tests, thin layer chromatography tests, gas chromatography tests, and ultra violet spectroscopy tests. From these tests Hopen stated that he determined the substance to contain heroin. Hopen testified that in his opinion the street value of the heroin was “approximately twenty-five dollars ($25.00).”

The appellant testified that he lived at 1309 East Adams, Dothan, Alabama, and had lived at this address since 1938. According to the appellant, he was away from his house between twelve and thirteen hours a day, seven days a week. The appellant testified that he had rented a bedroom to a young lady in his home for the past three to five months. Also, according to the appellant, his daughter and her friends would sometimes spend the night at his home. The appellant denied any knowledge of the heroin being in his home.

I

Appellant contends that the trial court erred in denying his “Motion to Quash the Search Warrant and Suppress Evidence.” Since the search warrant appears nowhere in the record, and was not introduced by either the State or the defense, nothing is presented to this Court for review. Barbosa v. State, AIa.Cr.App., 331 So.2d 811.

II

Appellant contends that the trial court erred in denying his motion for a mistrial. During direct examination of Officer Sor-rells, the following occurred (R. pp. 17-18):

“Q. All right. Was anything found as a result of this search?
“A. Yes, there was.
“Q. What was found?
“A. A tin foil package, containing heroin. A water pipe, a marijuana smoking device. And a pistol that had been altered.
“MR. SLAUGHTER: Your Honor, I would like to object to this testimony. May we approach the bench?
“THE COURT: Yes. Sustained.
(Thereupon, an off the record discussion was held between the Court and the attorneys of record. After said discussion, the following proceedings were had, to-wit:)
“THE COURT: Yes, I sustain the objection. Let me see the return on that thing.
“MR. SLAUGHTER: I move for a mistrial. This whole situation was tainted.
“THE COURT: I sustained the objection as to the Defendant about a pistol. And, I instruct the Jury not to consider that when they come to make up their verdict in this case. Any testimony concerning a pistol that was found as a result of this search should not and must not be considered by you Ladies and Gentlemen when you come to make up your verdict in this case. All right.
“MR. SLAUGHTER: I request a mistrial.
“THE COURT: And I deny your motion. Let’s go ahead.”

Appellant contends that the trial court should have excluded Officer Sorrell’s testimony concerning the “water pipe, a marijuana smoking device.” As can be seen, appellant made a general objection to Officer Sorrell’s testimony after t which an off-the-record discussion was held between the court and the attorneys of record. The trial court then sustained appellant’s objection as to the pistol. The appellant did not receive an adverse ruling by the trial court since we do not know what ground of objection, if any, was related to the trial court during the off-the-record discussion. From the record it appears that appellant was satisfied with the court’s ruling since no further objection or specific objection was made. Therefore, the trial court properly denied appellant’s motion for a mistrial. Gibbs v. State, Ala.Cr.App., 342 So.2d 448.

As to the testimony concerning the pistol, the trial court took the necessary steps to remove any possible prejudicial effect the testimony may have had. Thus, no error is shown. Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Retowsky v. State, Ala. Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62.

Further, the testimony concerning the “water pipe” was properly admitted. Brantley v. State, 294 Ala. 344, 317 So.2d 345.

Ill

Appellant contends the trial court erred in refusing a requested written charge which read as follows (R. p. 81):

“To sustain a guilty verdict the State must prove beyond a reasonable doubt that the Defendant knew of the presence of the prohibited substance.”

The trial court, in its oral charge, substantially covered the written requested charge quoted above. Therefore, its refusal is not error. Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied 295 Ala. 426, 324 So.2d 333; Young v. State, 283 Ala. 676, 220 So.2d 843; Title 7, Section 273, Code of Alabama 1940, Recompiled 1958.

IV

Appellant contends that the trial court erred in denying his motion for a new trial due to the fact that the State did not prove, beyond a reasonable doubt, that the appellant knew of the presence of the heroin in question.

In Daniels v. State, 49 Ala.App. 654, 275. So.2d 169, this Court stated:

“In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons, Keynote 9.
“Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761.”

We think the evidence sufficiently supported an inference for the jury’s consideration that appellant knew the controlled substance was in his house:

(a) Appellant was home when the search was made and had lived at such address since 1938.
(b) Even though appellant testified that he rented one bedroom to a young lady, the heroin was found in the kitchen area, a neutral part of the house.
(c) The heroin was found underneath a loose piece of linoleum tile in front of a refrigerator, a place which is not easily unnoticed.

Where the evidence raises a question of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the overruling of a motion for a new trial does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843; Fields v. State, Ala.Cr.App., 333 So.2d 861, and authorities therein cited; Henderson v. State, Ala.Cr.App., 347 So.2d 540, cert. quashed, Ala., 347 So.2d 543.

We have carefully examined this record and find no error therein.

The judgment is

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Robert Lee JAMES v. STATE.
    4 Div. 572.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Wayne Johnson, Phenix City, for appellant.

      William J. Baxley, Atty. Gen. and Seott W. Bamman, Legal Research Aide, Montgomery, for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of burglary in the second degree and sentenced to seven years imprisonment.

There was no eyewitness to the alleged burglary, but the undisputed evidence shows beyond question that during the afternoon of February 14, 1977, the dwelling house of Fred Primm and his wife at 1517 Sixth Place South, Phenix City, was burglarized and a portable television set was taken therefrom.

Charlie Edmunds, a school bus driver for the Mother of Mary Mission, testified that, on Sixth Place South, while he was driving the bus between 3:30 and 3:35 P.M. on February 14, 1977, he saw appellant standing beside a yellow Mercury which was parked on the side of the road with its hood and door of the trunk raised. He told the court and jury that the distance between the automobile and the Primms’ house “would be from where you [defendant’s attorney] are sitting to the back of the court room.” He said that the distance between the automobile and any other house was “a block or block and a half.” He stopped the bus “five, ten or fifteen seconds” to let some children out a short distance from where the automobile was parked; no person other than defendant was at the automobile at the time. As he started the bus in motion, he saw another person walk from a wooded area carrying an object and place it in the trunk. Appellant then closed the hood and trunk door and got in the car. The wooded area from which the other person walked was right next to the residence of Mr. and Mrs. Primm. According to the witness, appellant was merely standing beside the automobile until the other person approached the automobile from the woods; the witness did not see appellant look under the hood. He then passed the automobile with his bus; looked back and obtained the number of the license tag on the automobile and wrote it down.

Officer John Wilson testified that on the evening of the burglary, Mr. Edmunds came to Mr. Wilson’s house, “explained to me about something he had witnessed that looked unusual and he gave me information concerning the time he was driving the school bus,” including the tag number and description of the automobile and “the circumstances that he deemed suspicious.” He found that the automobile was registered to defendant, learned that a burglary had taken place and then turned the matter “over to the detectives.”

Defendant was arrested for the crime on February 19. There is no evidence as to what he said, if anything, at the time of his arrest, but evidence was introduced as to what he said to an officer sometime that day and what he said to another officer five days thereafter.

Wesley F. Butler, an investigator with the Russell County Sheriff’s Department, testified that on February 19, defendant voluntarily came to him at the Sheriff’s Department, told the officer that he had been charged with a burglary, and that he was not guilty. He said he “had not been involved” but he knew where the television set was and would direct the officer to its location. They went together to an apartment building in Columbus, Georgia, and defendant pointed out to the officer where the television set was at the time. They returned to Phenix City, where this information was reported to the Police Department of Phenix City. The evidence shows that a detective then obtained a warrant for the seizure of the television set and by virtue of the warrant recovered the set. Officer Butler also testified that on the occasion of his talking with defendant and going with defendant to Columbus on February 19, 1977, defendant told him that he had been “flagged down” by Aaron Preer on the day of the burglary and “asked to transport a television set in the company of the other gentleman to the location in Columbus.” The witness stated that defendant said he “immediately assumed that this guy had had problems with his girlfriend and he was just taking back the TV he had loaned her. . . . that he waited on the road, raised the trunk of the car and the guy brought the TV up and put it in the trunk” and that they then proceeded to Columbus. According to defendant, defendant had not known Preer before this occasion. Defendant told the officer that Preer “offered to pay him a nominal fee to run him and the TV over to Columbus,” but he was never paid.

Detective Boyd Battles, of the Phenix City Police Department, who made the initial investigation of the burglary, testified that on February 24, 1977, defendant told him:

. . Aaron Preer had offered him two dollars to take him to Columbus and that he had just got off from work and Aaron Preer wanted him to go up the road and turn around and come back and he would have some of his stuff that he got out of his girlfriend’s house and that he wanted me to take him to Columbus. He stated he went up and turned around and he come back and Aaron Preer was standing beside the road with the TV in his hand and that he got in the car and they went to Columbus.”

The witness said:

“He [defendant] made the statement to myself that Aaron Preer advised him to go up the road and turn around and come back, that he would have his stuff out of his girlfriend’s house. He made the statement to me that as he went up the road and came back, that Aaron Preer was standing beside the road with the road [sic] with the TV.”

All the evidence stated above was presented either on direct examination or on cross-examination of witnesses for the State. At the conclusion of the State’s case, defendant moved that the evidence be excluded. The motion was overruled. Thereupon, defendant introduced interrogatories to, and answers of, Aaron Preer, who said defendant did not assist him in burglarizing the house; that defendant had no knowledge of the burglary; that he had told defendant the television set belonged to defendant and he was moving it to another address in Columbus; that he paid defendant at the time for taking the television set to Columbus; that he did not tell defendant the set was stolen. He further said, in answer to the question as to the purpose of the hood being raised on the automobile, that it was “something concerning the motor or the oil or the transmission or something but I can’t verify which one it was. Transmission oil was leaking, one or the two, I can’t remember.”

Without defendant’s taking the stand, and without presenting any testimony other than the interrogatories to and answers of Preer, defendant rested. No request for the general charge or directed verdict was made.

The evidence presents a debatable question as to defendant’s guilt of burglary.

Whether the court was in error in overruling defendant’s motion to exclude the evidence is to be determined by the state of the evidence at the time the State rested. Whether defendant was entitled to the general affirmative charge in his favor after the closing of the case, and after the answers of Preer had been introduced in evidence, is not for our decision, as no request for the affirmative charge or a directed verdict in favor of defendant was made. Nevertheless, the answers of Preer afford some aid to an understanding of the explanations of defendant as shown by the evidence for the State and thereby justify a consideration of such answers.

Both parties acknowledge the applicability of Code of Alabama 1940, Tit. 14, § 14, abolishing the distinction between an accessory before the fact and a principal and between principals in the first and second degree and providing that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, are to be indicted, tried, and punished as principals. The case was submitted to the jury to determine whether defendant was an aider or abettor of Preer in the commission of the burglary.

Knowledge of the commission of a felony, after its commission, without aid being rendered to the active felon in the commission of the felony, is not sufficient to authorize a conviction. There must be, by prearrangement or on spur of the moment, a common enterprise or adventure, and a criminal offense contemplated. West v. State, 25 Ala.App. 492, 149 So. 354. When, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. Stokley v. State, 254 Ala. 534, 49 So.2d 284. In Stokley, it was also held that the community of purpose of conspiracy need not be proved by positive testimony, but a jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. The guilt of defendant may be inferred from circumstantial evidence. Parsons v. State, 33 Ala.App. 309, 33 So.2d 164; Foster v. State, (burglary), 43 Ala.App. 435, 191 So.2d 523, cert. denied 280 Ala. 713, 191 So.2d 527; Poellnitz v. State, (burglary), 48 Ala.App. 196, 263 So.2d 181 (1972).

It has been repeatedly held that once burglary has been definitely established by the evidence, evidence of possession by defendant soon thereafter of goods stolen in the burglary affords a logical inference, in the absence of a satisfactory explanation of the possession, that the possessor is guilty of burglary. Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130, cert. denied 291 Ala. 774, 285 So.2d 134; Wildman v. State, 42 Ala.App. 357, 165 So.2d 396, cert. denied 276 Ala. 708, 165 So.2d 403; Miller v. State, 43 Ala.App. 287, 189 So.2d 576, cert. denied 280 Ala. 715, 189 So.2d 580, cert. denied 385 U.S. 1043, 87 S.Ct. 783, 17 L.Ed.2d 687; Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210, cert. denied 288 Ala. 750, 264 So.2d 214. The question of the guilt or innocence of defendant narrows to whether the apparently exculpatory portions of defendant’s explanation of his conduct, as related in the testimony of witnesses Battles and Butler, and as based upon the answers of the admitted burglar, Aaron Preer, were true and not reasonably consistent with guilt.

Although the guilt of defendant is not absolutely conclusive, there are several incriminating circumstances, in addition to his possession of the television soon after the burglary. What he said to one officer is not absolutely consistent with what he said to another. In one, it is indicated that there was a flagging down by Preer and a prompt delivery of the television set to the trunk of defendant’s automobile; in the other, defendant drove on past Preer, down the street somewhere and turned around and returned to Preer. As to each statement, it is to be noted that at the time defendant observed Preer, according to defendant’s statement, Preer was across the street from the lane of travel of defendant in his automobile. In other words, according to defendant, Preer, a stranger, flagged him down to ask him to take him in an opposite direction to that which he was traveling. Such a thing happens, of course, at times, but not usually. There is some indication that the on-the-street transaction between Preer and defendant was only momentary, but there is no definite evidence to this effect. The time between defendant’s first observance of Preer, according to defendant’s statements, and the receipt by him of the television set into his automobile is not definitely shown. That defendant had talked with Preer prior to Preer’s breaking and entering the house from which the television set was stolen is consistent with the statements of fact of defendant as contained in the testimony of the officers as well as in the answers of Preer to interrogatories propounded to him, the conclusional statements of Preer to the contrary notwithstanding. Preer’s statements to the effect that defendant did not assist him, that he had no knowledge of the burglary, that he told defendant the television belonged to Preer are conclusionally, but not factually, irreconcilable with a conspiracy between defendant and Preer prior to Preer’s entry into the burglarized house.

The strength of the incriminating circumstances of what occurred is emphasized by the spontaneous reaction of Charlie Ed-munds, the bus driver. That he would have taken the pains to make a memorandum of the tag number of the automobile and report it the same day to a police officer speaks louder than words. If he, by what he observed in only a few seconds, believed that a stolen television set was being placed in the automobile of defendant, the question naturally arises as to why defendant could have been so easily duped into believing otherwise, when he had a better opportunity, and a longer time, to learn the truth. We realize that for him to have been guilty he would have had to have been aware of the truth prior to or at the time of the breaking and entry, but reasonableness of his story is the test of his guilt, and whatever reasonableness it would otherwise have pales in the light of all the circumstances, including the actions of Mr. Ed-munds.

The trial judge and the jury had the advantage of detailed explanations by witnesses as to the locations of various places in the vicinity of the burglary. Diagrams, which are not before us, were extensively used on the trial. There is nothing in the record to indicate that the jury was not convinced beyond a reasonable doubt that defendant designedly aided and abetted Preer in the commission of the burglary. Whether correct or not, there was substantial evidence to justify such a finding, and we are not justified in vitiating the verdict by reason of any possible disagreement therewith.

The only other contention for a reversal is based largely upon some remarks of the trial judge to the jury at the inception of the trial. The trial judge rather lengthily explained to the jury the procedure that could be expected, including the examination and cross-examination of witnesses and arguments of counsel for the State and defendant. He said, “The attorneys will again speak to you in something that is referred to as final argument or final summation by the parties.” He said, “The District Attorney’s Office will speak first on behalf of the State of Alabama and then Mr. Roney will speak on behalf of the Defendant. . . . ” At the conclusion of the evidence, the State made an argument, but defendant’s attorney waived argument, and no further argument was attempted to be made by the State. No objection, no exception was taken by defendant to any of the remarks of the trial judge, and no point was made on the trial as to the action and remarks just narrated. We can readily see that a trial judge is likely to give rise to justifiable complaint in attempting at the beginning of a case to foretell what the parties or their attorneys will do from the beginning to the end of the case, but in the absence of ineradicable prejudice, which clearly was not present here, we cannot reverse the trial court for its action, where there was no protest of any kind on the trial. In the absence of such a protest, such as an exception to what the court said, there is nothing presented for review. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974); Richardson v. State, 57 Ala.App. 24, 325 So.2d 540 (1975), cert. denied 295 Ala. 415, 325 So.2d 543 (1976); Walton v. State, 52 Ala.App. 541, 295 So.2d 262 (1974); Harris v. State, 56 Ala.App. 301, 321 So.2d 267 (1975).

We have searched the record for error prejudicial to defendant and have found none. The judgment appealed from 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 New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment is hereby

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Donald Ray CROSS v. STATE.
    7 Div. 557.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Cary F. Smith, Anniston, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

Appellant was charged with robbing a grocery store operated by A. Z. Haynes on January 27, 1977. Haynes identified the appellant as the man who entered his store, held a shotgun on him, and took approximately $100 from his cash register.

I

Robert Vinson, a State’s witness, testified that he had loaned his shotgun to the appellant sometime prior to the robbery, but could not remember exactly when. The district attorney elicited from Vinson that appellant borrowed the gun about three weeks before Vinson had given Detective Steve Robinson a statement about the incident. On cross-examination, Vinson’s testimony was to the effect that he had actually loaned the gun to the appellant in the fall of 1976 to use for squirrel hunting and that appellant had returned the gun the same day. A sworn statement to that effect, given by Vinson to the defense counsel, was introduced into evidence also. On redirect examination, the district attorney called to the witness’ attention his contradicting testimony and asked him further questions on that point. The defense objected that the prosecution was impeaching its own witness, and the trial court overruled the objection. From the answers elicited from Vinson, it is uncertain whether he told Detective Robinson that the appellant borrowed his gun three weeks earlier or three months earlier. At best, the testimony of Vinson on that point is confused and inconclusive.

Appellant contends that the trial court erred in allowing the prosecution to examine its own witness concerning the discrepancy in his testimony. We disagree. The rule is that a party cannot impeach his own witness by showing by another witness inconsistent statements by the witness sought to be impeached. However, this court in Randolph v. State, Ala.Cr.App., 331 So.2d 766, cert. denied, Ala., 331 So.2d 771 (1976) stated:

“. . . This rule, to which there is uniform adherence by the appellate courts of Alabama, is not inconsistent with the principle that a party, who has been surprised by a witness, may interrogate him, lead him, in effect cross-examine him, in order (1) to refresh the recollection of the witness or (2) to show the surprise of the party who called the witness. . . . ”

Also see: Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767 (1949).

II

Appellant contends that the trial court committed error in failing to serve him with a copy of a special venire at least one day prior to the trial, pursuant to the requirements of Title 30, § 63, Code of Alabama 1940. Appellant filed a motion for a continuance based upon his failure to receive a copy of the special venire. The motion was filed in open court, but the record does not reflect that a ruling was ever made oh the motion. It appears that appellant was served with a copy of the venire for the week of May 23, 1977, but the trial did not commence until the week of June 13, 1977. The State properly contends that absent a ruling on the motion, there is nothing for this court to review. Mitchell v. State, Ala.Cr.App., 338 So.2d 524 (1976). We would further point out that it is unnecessary to serve a copy of a special venire upon a defendant charged with robbery as it is no longer a capital felony. Our previous ruling on this point is set out fully in Fisher v. State, 57 Ala.App. 310, 328 So.2d 311 (1976) cert. denied, 295 Ala. 401, 328 So.2d 321.

Ill

A. Z. Haynes testified that the appellant committed the robbery. He had seen appellant in the store on more than one occasion and had ample opportunity to observe the appellant during the robbery. He testified that after the robbery, he went to the police station, looked through some one hundred or more photographs from which he selected a photograph of the appellant. He stated that he looked at the photographs alone and that no one suggested to him which one to select. Haynes was fully cross-examined on his identification of the appellant, and he stated in positive terms that his in-court identification of the appellant was based upon his observation of the robber at the time of the robbery and was not based upon the photograph identification at the police station. No objection to the identification procedure was made during Haynes’ testimony.

At the end of the State’s case in chief, counsel for appellant argued to the court that appellant was in custody (on a misdemeanor charge) at one of the times Haynes may have viewed photographs and thus appellant was entitled to have an attorney present as the phofbgraphs were viewed. The record showed that the appellant was not in custody when Haynes selected his photograph from some one hundred others, on the night of the robbery. Detective Robinson had testified that Haynes viewed photographs on the night of the robbery and also had viewed some photographs on January 31. However, he was not positive whether Haynes viewed any photographs on February 15. Since the appellant was arrested on February 11 on a charge of assault and battery, his counsel contends that a photographic identification allegedly conducted on February 15 violated his right to counsel. While such an argument is made, no motion requesting any specific action by the trial court appeared in the record and neither does any ruling thereon appear. The trial court’s discussion of the issue with defense counsel does not constitute a ruling. Thus, no error is shown in the record.

In any event, the appellant was not entitled to counsel during the photograph identification process in this case. “[T]he Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. . . .” United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). There is likewise no showing in the record that the identification of appellant by Haynes was the result of an impermissibly suggestive procedure. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976).

IV

Appellant moved to suppress a shotgun recovered from the home of Robert Vinson on the ground that its seizure was the result of an illegal search. The appellant was not present when the search was made, he did not own the weapon, nor did he have any proprietary interest in or right of possession over the place searched, thus he had no standing to challenge the search. Lewis v. State, Ala.Cr.App., 335 So.2d 426 (1976); Barbosa v. State, Ala.Cr.App., 331 So.2d 811 (1976).

V

Appellant contends that the trial court erred in allowing the prosecution to reopen its case. The record shows that at the end of the State’s case in chief, appellant moved to exclude the State’s evidence for failure to prove venue. The trial court allowed the State to recall a witness and prove venue. We find no error. The trial court has discretion to allow the State to reopen its case at any time prior to the conclusion of final arguments. Title 7, § 252, Code of Alabama 1940. Final arguments had not commenced, and the defense had not yet put on its evidence when the State’s case was reopened. No abuse of the trial court’s discretion is shown. Colston v. State, 57 Ala.App. 4, 325 So.2d 520 (1975), cert. denied, 295 Ala. 398, 325 So.2d 531.

VI

The appellant’s refused charges (none of which were numbered) were either affirmative in nature, covered in the court’s oral charge or other given charges, or were not proper statements of law. Title 7, § 273, Code of Alabama 1940; Harvey v. State, Ala.Cr.App., 341 So.2d 187 (1977).

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    William THOMPSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 49964, 50486.
    Supreme Court of Florida.
    June 23, 1977.
    Rehearing Denied Nov. 28, 1977.
    Louis M. Jepeway, Jr., Special Asst. Public Defender, of Jepeway, Gassen & Jepe-way, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   ADKINS, Justice.

These are consolidated appeals, one of which is from a judgment convicting defendant of first degree murder, involuntary sexual battery, and kidnapping, resulting in a sentence of death and concurrent sentences of life imprisonment. We have jurisdiction of this appeal.

The other appeal is from an order of the trial court denying defendant’s motion to set aside the imposition of the sentences pursuant to Fla.R.Crim.P. 3.850. This appeal was transferred to us by the District Court of Appeal.

The defendant, after withdrawing pleas of not guilty, entered pleas of guilty in all charges and was adjudged guilty. His waiver of the penalty hearing over the objection of the state attorney was refused by trial judge. The jury recommended the death penalty. The sentences were then imposed.

Defendant, through counsel other than trial counsel, then filed a motion to vacate the sentences and the withdrawal of the guilty pleas on the ground that the pleas were induced by a commitment of the trial judge which was communicated to him by his court-appointed counsel. The motion was bolstered by written statements of .trial counsel. The record is sufficient to bring this case squarely within the rule pronounced by this Court in Costello v. State, 260 So.2d 198 (Fla.1972).

The pleas were based on a failure of communication or misunderstanding of the facts. In the colloquy preceding the plea the defendant was not asked if any promises were made to him. The defendant has established to our satisfaction that he was prejudiced by an honest misunderstanding which contaminated the voluntariness of the pleas.

The judgments and sentences are reversed and the cause is remanded to the trial judge with instructions to grant the motion for withdrawal of the guilty pleas and proceed to trial.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


text:
    Rocco J. SURACE, Appellant, v. STATE of Florida, Appellee.
    Nos. 49965, 50485.
    Supreme Court of Florida.
    June 23, 1977.
    Rehearing Denied Nov. 28, 1977.
    Mark King Leban, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   ADKINS, Justice.

These are consolidated appeals, one of which is from a judgment convicting defendant of first degree murder, involuntary sexual battery, and kidnapping, resulting in a sentence of death and concurrent sentences of life imprisonment. We have jurisdiction of this appeal.

The other appeal is from an order of the trial court denying defendant’s motion to set aside the imposition of the sentences pursuant to Fla.R.Crim.P. 3.850. This appeal was transferred to us by the District Court of Appeal.

The defendant, after withdrawing pleas of not guilty, entered pleas of guilty in all charges and was adjudged guilty. His waiver of the penalty hearing over the objection of the state attorney was refused by the trial judge. The jury recommended the death penalty. The sentences were then imposed.

Defendant, through counsel other than trial counsel, then filed a motion to vacate the sentences and the withdrawal of the guilty pleas on the ground that the pleas were induced by a commitment of the trial judge which was communicated to him by his court-appointed counsel. The motion was bolstered by written statements of trial counsel. The record is sufficient to bring this case squarely within the rule pronounced by this Court in Costello v. State, 260 So.2d 198 (Fla.1972).

The pleas were based on a failure of communication or misunderstanding of the facts. In the colloquy preceding the plea the defendant was not asked if any promises were made to him. The defendant has established to our satisfaction that he was prejudiced by an honest misunderstanding which contaminated the voluntariness of the pleas.

The judgments and sentences are reversed and the cause is remanded to the trial judge with instructions to grant the motion for withdrawal of the guilty pleas and proceed to trial.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


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

text:
    Frank M. STUART, M.D., P.A., and Underwriters at Lloyds, Petitioners, v. The HERTZ CORPORATION, George Holbrook, Individually and as father and next friend and guardian ad litem of Stafford Holbrook, a minor, Respondents.
    No. 46553.
    Supreme Court of Florida.
    July 28, 1977.
    Rehearing Denied Nov. 28, 1977.

      Mark Hicks and James E. Tribble, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioners.
    Stephen A. Stieglitz, of Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, and Pomeroy & Betts, Fort Lauder-dale, for respondents.
   ADKINS, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the Fourth District Court of Appeal reported at 302 So.2d 187 (Fla.4th DCA 1974).

This case concerns the right of a defendant who is the negligent tortfeasor in an automobile accident to bring a third party complaint against the treating physician of the plaintiff for alleged malpractice which aggravated the injuries of the plaintiff. The Fourth District Court in an extensive opinion held the third party complaint properly sought indemnification from the treating physician, finding also that he was not a joint tortfeasor. There is deci-sional conflict with the holding of the Third District Court in Mathis v. Virgin, 167 So.2d 897 (Fla.3d DCA 1964). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

The record reflects that an automobile owned by respondent Hertz collided with an automobile operated by one Mrs. Johnson, who suffered orthopedic injuries in the accident. Mrs. Johnson underwent surgery performed by petitioner Dr. Stuart, for these injuries. During the course of the surgery, Mrs. Johnson’s carotid artery was accidentally severed, causing a neurological disability. Mrs. Johnson instituted suit against Hertz, who filed a third party complaint against petitioners seeking indemnity for any damages recovered as a result only of the neurological injuries. Petitioner doctor’s motion to dismiss the third party complaint was denied by the trial court.

In affirming the trial court the District Court held in part:

“[Tjhere is an equitable right to indemnity under certain factual considerations and particularly under the facts present in the case sub judice; a tortfeasor initially causing an injury has the right to seek indemnification against the physician for aggravating injury in the course of treatment. . . .” 302 So.2d at 194.

Therefore, the issue before us is simply whether or not an active tortfeasor in ah automobile accident may bring a third party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiff’s injuries.

We hold that such an action for indemnity may not be brought. To hold otherwise would alter traditional indemnity law by adopting a doctrine of partial equitable indemnification between active tortfeasors.

The negligent action of the defendant tortfeasor in the case sub judice was the proximate cause of the plaintiff’s injuries. However, the action of petitioner doctor was in fact an aggravating intervening cause of the ultimate condition of the plaintiff. The parties causing plaintiff’s injuries here were not joint tortfeasors but distinct and independent tortfeasors.

Indemnity has been defined as a right which inures to a person who has discharged a duty which is owed by him but which, as between himself and another, should have been discharged by the other. 41 Am.Jur.2d Indemnity § 1. As stated in Mims Crane Serv., Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.2d DCA 1969), the obligation to indemnify need not be based upon an express contract of indemnification but may arise out of a liability imposed by law. The rule is stated in 41 Am.Jur.2d Indemnity § 2.

“Although it has been said that the right to indemnity springs from a contract, express or implied, the modern cases note that contract furnishes too narrow a basis, and that principles of equity furnish a more satisfactory basis for indemnity. Thus, a right of indemnity has been said to exist whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join. The rule proposed in the Restatement of Restitution makes no specific reference to contract and appears to be based on principles of equity; it provides that a person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have-been discharged by the other, is entitled to indemnity from the other, unless the payor (indemnitee) is barred by the wrongful nature of his conduct.” (Emphasis supplied.)

To date, an action for indemnity has been restricted by this Court to situations involving either express contracts, a duty, or the existence of active and passive negligence. University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Mims Crane Serv., Inc. v. Insley, supra; Winn-Dixie Stores v. Fellows, 153 So.2d 45 (Fla.1st DCA 1963); Suwannee Valley Elec. Coop., Inc. v. Live Oak, Perry and Gulf R. Co., 73 So.2d 820 (Fla.1954); Seaboard Air Line Ry. Co. v. American Dist. Elec. Protective Co., 106 Fla. 330, 143 So. 316 (1932).

The Third District Court has held that a tortfeasor is not “locked in” by allegations that he was an active tortfeasor and could make third party claims for indemnification. Central Truck Lines v. White Motor Corp., 316 So.2d 579 (Fla.3d DCA 1975). But the court still looked to proof of an active/passive relationship of the tort-feasors upon which the claim of indemnity could rest. Florida continues to follow the general rule that where each tortfeasor is chargeable with active or affirmative negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other. 41 Am.Jur.2d Indemnity § 21. See Seaboard Coast Line R. Co. v. Gordon, 328 So.2d 206 (Fla.1st DCA 1976); Armor Elev. Co., Inc. v. Elev. Sales & Serv., Inc., 309 So.2d 44 (Fla.3d DCA 1975); Dura Corp. v. Wallace, 297 So.2d 619 (Fla.3d DCA 1974); General Motors Corp. v. County of Dade, 272 So.2d 192 (Fla.3d DCA 1973); University Plaza Shopping Center, Inc. v. Stewart, supra; Aircraft Taxi Co. v. Perkins, 227 So.2d 722 (Fla.3d DCA 1969); Winn-Dixie Stores, Inc. v. Fellows, supra. It follows that the rights of a party to indemnification will be denied where his own wrongful act or omission proximately contributes to the injury complained of. 41 Am.Jur.2d Indemnity § 21. The stated reason for this rule is that, since no one should be permitted to found a cause of action on his own wrong, the courts will not aid one tortfeasor against another. Herrero v. Atkinson, 227 Cal.App.2d 69, 38 Cal.Rptr. 490, 493 (1st Dist. 1964).

There is a fundamental distinction between indemnity and contribution. Traditionally, indemnity has evolved from the concept of express or implied contract while the doctrine of contribution has been based upon equitable rights. In the case of indemnity the defendant is liable for the whole outlay, while in contribution he is chargeable only with a ratable proportion. 41 Am.Jur.2d Indemnity § 3. The District Court notes the fact that the indemnity sought is not for total damages awarded, but is only from the consequences brought about solely by the malpractice, thereby espousing a hybrid doctrine of partial equitable indemnification which will most certainly lead to confusion and nonuniformity of application by the lower courts. The rule stated in the case of Transcon Lines v. Barnes, 17 Ariz.App. 428, 498 P.2d 502, 509 (1972) is a better reasoned rule. There the court affirmed a decision dismissing a claim for indemnity where the deceased was initially injured in an automobile accident and after receiving medical care, died of broncho-pneumonia. The court held that:

“It must be remembered that indemnity is an all or nothing proposition damage-wise, and hence should be an all or nothing proposition fault-wise. Apportionment of damages is not contemplated by it. . Stated in the positive the cases mean simply that indemnity between tortfeasors is allowable only where the whole of the fault was in the one against whom indemnity is sought.”

Having finally decided the issue in favor of contribution among joint tortfeasors in Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), the Court here finds itself faced with the question of whether to apportion the loss between initial and subsequent rather than joint or concurrent tortfeasors. This cannot be done.

An active tortfeasor should not be permitted to confuse and obfuscate the .issue of his liability by forcing the plaintiff to concurrently litigate a complex malpractice suit in order to proceed with a simple personal injury suit. To hold otherwise would in effect permit a defendant to determine the time and manner, indeed the appropriateness, of a plaintiff’s action for malpractice. This decision eliminates the traditional policy of allowing the plaintiff to choose the time, forum and manner in which to press his claim. See C. Wright and A. Miller, Federal Practice and Procedure § 1459, at 316.

The choice of when and whether to sue his treating physician for medical malpractice is a personal one which rightfully belongs to the patient. A complete outsider, and a tortfeasor at that, must not be allowed to undermine the patient-physician relationship, nor make the plaintiffs case against the original tortfeasor longer and more complex through the use of a third-party practice rule which was adopted for the purpose of expediting and simplifying litigation.

The complex issues of liability to be resolved in a medical malpractice action are foreign to the resolution of liability in the typical personal injury suit. Indeed Fla.R. Civ.P. 1.180 itself recognizes that not all third party claims should be allowed to proceed by providing that any party may, in addition to a motion to strike, move for its severance or separate trial. The courts in the past have exercised this discretion in furtherance of convenience or to avoid prejudice, or when separate trials are conducive to expedition and economy. C. Wright and A. Miller, supra, § 1460.

In summary, to allow a third party action for indemnity, as in the case sub judice, would not only incorrectly expand traditional concepts of indemnity to the point of making it indistinguishable from contribution, but also expand the applicability of the third-party rule and make it a tool whereby the tortfeasor is allowed to complicate the issues to be resolved in a personal injury suit and prolong the litigation through the filing of a third-party malpractice action.

We therefore hold that Hertz Corporation, the initial tortfeasor, may not file a third-party complaint seeking indemnity for the alleged aggravation of the injuries by the negligence of the treating physician.

This holding is in conformity with the rule announced in J. Ray Arnold Corporation, etc. v. Richardson, 105 Fla. 204, 141 So. 133 (1932), which reads as follows:

“Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor. Texas & Pacific Ry. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918.” At 135.

Florida is not alone in adhering to this principle for, as stated in 57 Am.Jur.2d Negligence § 149, at 507,

“[T]he rule is well established that a wrongdoer is liable for the ultimate result, although the mistake or even negligence of the physician who treated the injury may have increased the damage which would otherwise have followed from the original wrong.”

The following appears in an Annotation “Torts — Negligent Treatment of Injury,” 100 A.L.R.2d 808:

“Although stating the rule in different ways and basing it upon different theories, most of the courts which have considered the question have taken the view that where a person has suffered personal injury by reason of another’s negligence, the tortfeasor is liable for any additional harm and expense caused the injured person by the negligence, mistake, or lack of skill of the attending physician or surgeon.
* * * % # sH
“In most of the cases the courts have stated, in substance, that the tortfeasor is liable for the consequences of the negligence, mistake, or lack of skill of the physician or surgeon attending the injured person, if the injured person exercised reasonable care in securing the services of a competent physician or surgeon.” At 813-14.

For the above reasons the decision of the District Court of Appeal is quashed, and this cause is remanded for the purpose of a further remand to the trial court with instructions to grant the motion to dismiss.

It is so ordered.

SUNDBERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., concurs in result only.

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

OVERTON, C. J., dissents with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the opinion of Justice Adkins that original tortfeasors should not be permitted to join treating physicians in the suits for damages on the basis that the malpractice of doctors has aggravated the injuries and increased the damages. The relationship between patients and their doctors precludes inclusion of the doctors as defendants without permission of the patients. Many patients forgive malpractice or settle out of court to prevent damage to medical reputations.

I dissent to the view that any active tortfeasor sued should be unable to shift an equitable portion of the judgment obligation to others causing or increasing the injuries and damages.

Although respondent Hertz Corporation must not be permitted to join petitioner as a third party defendant, it should be permitted to allege and prove any malpractice and have the judgment amount reduced to the extent the malpractice contributed to the total amount of damages. It is fundamentally unfair and unjust to require Hertz to pay for the negligence of petitioner, if any. If the injured person, Mrs. Johnson, does not wish to join her doctor in the suit that should be her privilege, but she should not recover from Hertz the full damages unless Hertz is the only tortfeasor.

If the Hertz judgment should be reduced by proving malpractice Mrs. Johnson could sue petitioner to recover for malpractice or waive her claim against petitioner.

This view may well conflict with existing legal concepts, but it follows the ancient principle that each person must be accountable for his or her own misconduct.

OVERTON, Chief Justice,

dissenting.

I dissent. The issue in this case is whether the negligent driver in an automobile accident who causes injury to the plaintiff may bring a third party indemnity action against the physician for damages directly attributed to the physician’s malpractice, which aggravated the plaintiff’s injuries. I would hold that indemnity is a proper remedy in this factual situation. The equitable principle that everyone should be responsible for the consequences of his or her own wrong should apply. If others have been compelled to pay damages which ought to have been paid by the wrongdoer, indemnity is the proper remedy. See Gertz v. Campbell, 55 Ill.2d 84, 302 N.E.2d 40 (1973); Herrero v. Atkinson, 227 Cal.App.2d 69, 38 Cal.Rptr. 490 (1964). For the same result based on subrogation doctrine, see Fisher v. Milwaukee Electric Ry. & Light Co., 173 Wis. 57, 180 N.W. 269 (1920); Clark v. Halstead, 276 App.Div. 17, 93 N.Y.S.2d 49 (1949).

My view would not disturb the existing law that a tortfeasor remains responsible for all injuries which flow naturally from the original act, and I would specifically reaffirm the opinion of this Court in J. Ray Arnold Lumber Corporation v. Richardson, 105 Fla. 204, 141 So. 133, 135 (1932).

A plaintiff should not be allowed to recover for the same wrong from both tort-feasors, which may be possible under the majority opinion as I understand it. Clearly one tortfeasor should not be responsible for all the injuries without the right of indemnification for the Identifiable consequences of another’s wrong.

I would affirm the decision of the Fourth District Court of Appeal.


author: BOYD, Acting Chief Justice.

text:
    Verdell WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 44882.
    Supreme Court of Florida.
    Oct. 14, 1977.

      Theodore Klein, of Fine, Jacobson, Block & Semet, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   BOYD, Acting Chief Justice.

We have before us a challenge to the constitutional validity of parts of Section 458.22, Florida Statutes, the statute that regulates abortions in Florida.

Verdell Wright, a nurse registered in Florida, was charged by information filed in the Circuit Court, Seventeenth Judicial Circuit, in and for Broward County, with the unlawful termination of a pregnancy resulting in the pregnant woman’s death, a felony of the second degree, in violation of Section 458.22(2):

“Termination of pregnancy. — It shall be unlawful to terminate the pregnancy of a human being unless the pregnancy is terminated in an approved facility by a physician who certifies in writing that:
“(a) To a reasonable degree of medical certainty the continuation of the pregnancy would substantially impair the life or health of the female;
“(b) There is substantial risk that the continuation of the pregnancy would result in the birth of a child with a serious physical or mental defect; or
“(c) There is reasonable cause to believe that the pregnancy resulted from rape or incest.”

The gravamen of her offense, as charged in the information filed against her, was that she was not a physician and was not in an approved facility when she performed the abortion. Her motion to dismiss the information on the ground that the statute is unconstitutional was denied by the trial court. Upon her plea of nolo contendere to the third degree felony offense of “unlawful termination of pregnancy” she was adjudicated guilty and sentenced to five years in prison. Her appeal to the District Court of Appeal, Fourth District, was transferred here because jurisdiction of the constitutional issue is properly in this Court.

Wright argues that the statute unconstitutionally infringes on privacy rights. Her argument is based on the landmark U.S. Supreme Court decisions on the abortion issue in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), as well as federal decisions in which the “approved facility” requirement in subsection (2) and all of subsection (3) of Section 458.22 of Florida’s statute were declared unconstitutional. She does not challenge the statute’s physician requirement by itself, but argues that it is inextricably interwoven with the unconstitutional portions of the statute so that it must fall when they do.

1. The “approved facility” requirement.

The right to privacy in the abortion decision, recognized in Roe, supra, as belonging to the pregnant woman in consultation with her physician, gives way to state power to regulate as the embryo or fetus develops. As Roe outlines:

“(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
“(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
“(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” 410 U.S. at 164, 165, 93 S.Ct. at 732.

In Coe v. Gerstein, 376 F.Supp. 695 (S.D. Fla.1973), the “approved facility” requirement of Section 458.22(2) and the “spousal or parental consent” requirement of Section 458.22(3), Florida Statutes, were declared unconstitutional because their application was not restricted to abortions performed after the first trimester of pregnancy. The State of Florida abandoned any attempt to support the “approval facility” requirement before the U.S. District Court and, therefore, appealed the declaration against the “spousal or parental” consent requirements only. The U.S. Circuit Court of Appeals, Fifth Circuit, agreed that unrestricted consent requirements are unconstitutional. Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975). Its decision was appealed to the United States Supreme Court where it was affirmed, Gerstein v. Coe, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976), on the basis of Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). The effect of the U.S. Supreme Court mandate in Coe is that the “spousal or parental” consent requirements are unconstitutional, but the mandate leaves untouched the “approved facility” requirement. Since Wright was not charged with violation of the “consent” requirements of subsection (3) of the statute, the U.S. Supreme Court decision in Coe is not pertinent here.

It is clear, nonetheless, that the U.S. District Court’s decision in Coe is correct in striking the “approved facility” requirement. As explained in Doe v. Bolton, supra, States may,

“. . . From and after the end of the first trimester [of pregnancy] adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish.” 410 U.S. at 195, 93 S.Ct. at 749 (emphasis supplied).

Failure of the statute to limit application of the “approved facility” requirement to the second and third trimesters of pregnancy is unconstitutional. Similarly, the statute fails to limit the certification requirement of subsection (2) of the statute to the second and third trimesters of pregnancy and to that extent is unconstitutional.

Although Wright, since she was neither a pregnant woman entertaining the abortion decision nor a consulting physician, had no privacy interest of her own at stake in the abortion for which she was prosecuted, Roe, supra, the “approved facility” requirement is so obviously unconstitutional that we declare it was unconstitutional to apply it to her.

2. The “physician” requirement.

The opinion in Roe states clearly that, regardless of the stage of pregnancy, States are free to require that abortions be performed by physicians.

“The State may define the term ‘physician,’ ... to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.” (emphasis supplied) 410 U.S. at 165, 93 S.Ct. at 732-33.

There is no question then that standing alone the “physician” requirement of Section 458.22(2) is constitutional. Wright argues that the physician requirement is so entangled with the unconstitutional portions of the statute (the “approved facility” requirement, the “certification” requirement and the “consent” requirements) that it falls when they do.

It is a well settled rule that if a statute contains valid and invalid provisions, the valid ones may be enforced provided they are severable and would have been enacted apart from the invalid ones. Hayes v. Walker, 54 Fla. 163, 44 So. 747 (1907); Driver v. Van Cott, 257 So.2d 541 (Fla.1971). The “approved facility” requirement is independent of the other two, and while the “certification and consent” requirements may be dependent on the “physician” requirement, the converse is not true. The physician requirement is sufficiently independent so as to be severable from the invalid portions of the statute. And, the “physician” requirement would have been enacted without the other elements. The entire statute reveals that the Legislature regards abortion as a medical procedure necessitating input into the abortion decision that the medical judgment of a physician would provide, as well as performance of the procedure by a physician. Because of this regard and since Roe specifically holds it constitutional to do so the Legislature, undoubtedly, will continue to require that all abortions be performed by physicians. The physician requirement, therefore, is constitutionally enforceable.

Since the “physician” requirement may be constitutionally applied to Wright, her conviction is affirmed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

      . Defined in § 458.22(l)(a): “ ‘Physician’ means a doctor of medicine or osteopathic medicine licensed by the state under chapter 458 or chapter 459 or a physician practicing medicine or osteopathy in the employment of the United States or this state.”

      . Defined in § 458.22(l)(b): “ ‘Approved facility’ means a hospital licensed by the state and accredited by the Joint Commission on Accreditation of Hospitals or approved by the American Osteopathic Hospital Association or a medical facility licensed by the division of health pursuant to rules and regulations adopted for that purpose, provided such rules and regulations shall require regular evaluation and review procedures.”

      . Unlawful termination of pregnancy is a third degree felony when it does not result in the death of the pregnant woman. § 458.22(6)(a).

      . Art. V, § 3(b)(1), Fla.Const.

      . Coe v. Gerstein, 376 F.Supp. 695 at 696 (S.D. Fla.1973).


author: KARL, Justice.

text:
    FLORIDA ADMINISTRATION COMMISSION et al., Petitioners, v. DISTRICT COURT OF APPEAL, FIRST DISTRICT, Respondent.
    No. 50242.
    Supreme Court of Florida.
    Oct. 14, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Thomas A. Harris, Asst. Atty. Gen., Tallahassee, for relators.
    L. Grant Peeples and William L. Earl of Peeples, Earl & Blank, Miami, and A. N. Spence and John P. McNutt, Miami, for respondent.
   KARL, Justice.

This is an original proceeding in which the Florida Administrative Commission and James Williams, Lieutenant Governor, as relators, request a writ of prohibition to prohibit the First District Court of Appeal from purporting to exercise jurisdiction to entertain Cases No. BB-493 and BB^494 or to carry those cases on its docket. Article V, Section 3(b)(4) of the Florida Constitution vests jurisdiction in this Court.

We issued a rule nisi in prohibition and have received a return and answer.

More than thirty days after the Florida Administrative Commission adopted and filed with the Department of State their Rule 22F-13, the City of North Key Largo Beach, Florida, and Riley-Field Company, a Florida corporation, filed their petitions with the District Court of Appeal, First District, seeking review of final agency action under Section 120.68, Florida Statutes (1975). Their petitions were assigned numbers BB — 493 and BB-494 and were consolidated.

When presented with motions to dismiss the petitions on the grounds that they were not filed within the time allowed in Fla. App. Rule 4.5(c)(1), the District Court of Appeal held that Section 120.54(10), (11), (12), Florida Statutes (1975), prevented the rule from becoming effective until twenty days after it was filed and that the petitions, which were filed within thirty days after the effective date, were timely.

The term “agency action” includes the adoption of rules by the administrative agencies. Judicial review of final agency action is conducted in accordance with Florida Appellate Rules and specifically in accordance with Fla.App. Rule 4.5(c)(1). We recognize, as did the District Court of Appeal, that an agency rule, such as Rule 22F-13, is not strictly a “decision, order, judgment or decree” within the contemplation of appellate rule, that it is not “rendered” in the same way or with the same effect as decisions, orders, judgments and decrees and that we must judicially determine how our procedural rule will be applied in reviewing rules adopted by administrative agencies.

Section 120.54, Florida Statutes (1975), describes the rulemaking procedure to be followed by the agencies. Had they been granted the right to adopt their rules without other administrative or legislative action, there would be no ambiguity or confusion. But the Legislature, in emphasizing its declaration that the agencies have no inherent rulemaking authority, included Sections 120.54(10), (11) and (12), Florida Statutes (1975), requiring filing of proposed rules with the legislative Administrative Procedures Committee, extensive pre-adoption notice, filing with the Department of State after adoption and at least twenty days before the effective date and a procedure for the legislative committee to interpose objections. The mandatory delayed effective date and the possibility that legislative objections will result in withdrawal or modification of the rule before it becomes effective raise the questions as to the date when the agency action becomes final and, therefore, subject to review.

Although in some cases the rules may be withdrawn or changed following their adoption by the agency and filing with the Department of State, we hold that the final agency action occurs when the rules are filed with the Department of State and that a petition seeking judicial review under Fla.App. Rule 4.5(c)(1) must be filed within thirty days thereafter to confer jurisdiction on the court.

Rule 4.5(c)(1) provides:

“Application for writ of certiorari shall be by petition filed in the Court within 30 days from the rendition of the decision, order, judgment or decree sought to be reviewed. . . . ”

The date of rendition contemplated by the rule is the date the rule is filed. Fla.App. Rule 1.3 so instructs us by providing:

“Rendition . . . means that it has been reduced to writing, signed and made a matter of record, or if recording is not required then filed.”

Agency action is final in rulemak-ing procedures when the rule has been adopted and filed. Nothing in Section 120.-54(10), (11), (12), Florida Statutes (1975), requires the Legislature to interpose objections. If legislative objections are filed, they do not repeal or modify the rule, although the law requires affirmative agency reaction in order to preserve the rule which has been adopted. Sub judice, there was neither legislative nor agency action after the rule was filed with the Department of State.

We acknowledge the possibility that our decision today may result in a situation in which petitions for review are filed with the District Court of Appeal before the rules to be reviewed become effective. Such premature filing will not result in adverse consequences for the litigants or the court and may not, therefore, constitute a ground for dismissal of the petition.

The time limitation of Rule 4.5(c)(1), Florida Appellate Rules, for filing a petition for review is jurisdictional and cannot be waived by the court. Shevin v. Public Service Commission, 333 So.2d 9 (Fla.1976); Wieczorek v. Williams, 71 So.2d 262 (Fla.1954); Harris v. Condermann, 113 So.2d 235 (Fla. 3d DCA 1959). The petition in this case was not filed within the time allowed and did not, therefore, vest jurisdiction. Prohibition is the appropriate procedure.

Accordingly, the writ of prohibition requested by relators is granted, and the judges of the First District Court of Appeal are prohibited from exercising jurisdiction to entertain Cases No. BB^493 and BB-494 and from carrying said cases on the docket.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.

      . Riley-Field Co. v. Askew (City of North Key Largo Beach v. Askew), 336 So.2d 383 (Fla. 1st DCA 1976).

      . Section 120.52(2), Fla.Stat. (1975).

      . Section 120.68(2), Fla.Stat. (1975).

      . Yamaha Int’l Corp. v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975).

      .Section 120.54(13), Fla.Stat. (1975).

      . Cf. Dubin v. Department of Business Regulation, 252 So.2d 290 (Fla. 1st DCA 1971).

      . Section 120.54 was amended by the 1976 Legislature. A new Section 120.545 was added in 1976, which describes in detail the procedure . for and the effect of objections by the legislative committee. These changes are not applicable to the rule here under review.

      . § 120.54(10)(a), Fla.Stat. (1975).

      . English v. McCrary, 348 So.2d 293 (Fla.1977), filed May 6, 1977, rehearing denied July 13, 1977.


author: PER CURIAM.

text:
    Roger Lea MacBRIDE et al., Appellants, v. Bruce SMATHERS et al., Appellees.
    No. 51550.
    Supreme Court of Florida.
    Oct. 20, 1977.
    William H. Adams, III, Jacksonville, for appellants.
    Robert L. Shevin, Atty. Gen., Joseph W. Lawrence, II, Asst. Atty. Gen., Tallahassee, Dawson A. McQuaig, Gen. Counsel and Robert G. Brown, Asst. Counsel, Jacksonville, for appellees.
   PER CURIAM.

This is a direct appeal from an order of the Circuit Court of Leon County, which construed the state statutory provisions regulating voting for write-in candidates for national presidential elections as requiring that the names of the presidential electors, rather than the names of the actual candidates, be written in on the ballot. The trial court further found that this statute, as so interpreted, does not constitute an unconstitutional discrimination against write-in candidates. Although we have jurisdiction under Article V, Section 3(b)(1), Florida Constitution, we have decided to dismiss this appeal. The Legislature recently revised the State Election Code, in 77-175, Laws of Florida, effective January 1,1978, repealing the various statutory provisions at issue here and eliminating write-in candidacies altogether. Therefore, the questions raised in this cause have become moot.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


author: SUNDBERG, Justice. OVERTON, Chief Justice,

text:
    David Jon HORNBLOWER, Petitioner, v. STATE of Florida, Respondent.
    No. 49568.
    Supreme Court of Florida.
    Oct. 27, 1977.
    Michael J. Minerva, Public Defender, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for respondent.
   SUNDBERG, Justice.

By the constitutional authority conferred on this Court through Article V, Section (3)(b)(3), Florida Constitution, we entertain this petition for certiorari to resolve a conflict between the decision of the District Court of Appeal, First District, reported at 331 So.2d 339 (Fla. 1st DCA 1976), and Parsons v. State, 334 So.2d 308 (Fla. 1st DCA 1976), the latter case involving a different party to the same criminal transaction. The issue involved is the legality of a warrantless search of premises occupied by petitioner and the seizure of contraband in connection with that search.

Petitioner was charged by information with possession of amphetamines with intent to sell and possession of less than five grams of marijuana. He was apprehended after his brother, Dale, had arranged a sale of amphetamines to Deputy Sheriff Crook (acting in an undercover fashion) at the mobile home where the brothers resided. When the deputy arrived, he did not enter the mobile home but during a conversation with Dale outside, observed persons smoking inside and smelled the odor of marijuana or hashish smoke emanating from the trailer. The deputy then asked Dale if he had marijuana or hashish for sale. Dale responded in the affirmative and entered the mobile home to procure the cannabis. He returned punctually with the hashish which Crook examined. Dale then informed the deputy that although he had some amphetamine tablets on hand, he did not have the quantity which the deputy desired to purchase. However, Crook was informed that an additional amount could be obtained at another mobile home park. The deputy followed Dale by automobile to the other park where Dale effected the sale of the tablets and the hashish. At that point, he was arrested by Detectives O’Brien and Clark who had been electronically monitoring the “buy.” Following the arrest, Dale admitted that he and petitioner were selling amphetamine tablets and that petitioner had given him the first group of tablets. O’Brien and Clark then transported Dale to jail while Crook proceeded back to the brothers’ residence to take up surveillance.

At least forty-five (45) minutes elapsed at the jail before all the officers were reunited at the mobile home. The deputies maintained their surveillance until someone left the home and began to exit in his vehicle. This vehicle was stopped and searched, but no contraband was found. Later, a second vehicle drove away from the trailer and that automobile was also apprehended. A subsequent search produced a quantity of marijuana residue in the vehicle, seven foil packets of hashish and a homemade pipe on the person of the driver, Parsons.

The officers then decided to return to petitioner’s trailer and search for additional drugs. Without any effort to obtain a search warrant, the officers approached, knocked, announced who they were, and after detecting noise of scurrying activity within, forceably entered. They seized some amphetamine pills and marijuana cigarette butts which were the subject of petitioner’s motion to suppress.

At the suppression hearing, it was alleged that the search and seizure were conducted without warrant and without probable cause, in violation of the petitioner’s rights under the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, Section 12 of the Florida Constitution. The motion was denied. Petitioner then pleaded nolo contendere, reserving the right to appeal the denial of his motion to suppress. The District Court of Appeal, First District, held that the officers had probable cause to search the residence and that exigent circumstances existed to make the warrantless search. (Mills, J., dissenting.)

The Fourth Amendment to the United States Constitution is an expression of our founding fathers’ uneasiness with the potential omnipotence of a federal government. It reflects the notion that an individual can never enjoy the tranquility which he deserves if the government is free to tamper with his expectations of privacy through arbitrary searches. Consequently, the central theme of the Fourth Amendment is its prohibition against general searches. Practices like random entries into people’s homes or random searches of people walking the streets, to acquire information or obtain evidence are repulsive to our concept of a democratic society. See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). In essence, the Fourth Amendment forbids those occurrences and evinces the axiom that privacy is not a gratuity which we hold at the whim of oar government. Only when there is a special governmental need that can be stated with particularity, will we allow the government to intrude on an individual’s privacy.

To implement this principle, the Supreme Court of the United States has mandated that warrantless searches “are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Accord, United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). These exceptions have been “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), and the burden is upon the State to demonstrate that the procurement of a warrant was not feasible because “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948). See also Coolidge v. New Hampshire, 403 U.S. 443, 445, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971); Shepard v. State, 319 So.2d 127 (Fla. 1st DCA 1975); Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA 1975).

In the instant case, the State did not obtain a warrant to search the petitioner’s trailer. Consequently, precedent mandates that respondent demonstrate the existence of exigent circumstances which made the acquisition of a warrant unfeasible. Because the State has been unable to carry this burden, we are constrained to quash the decision of the District Court of Appeal, First District.

Initially, we note that there was ample probable cause to support the search. A controlled purchase was made from the premises, State v. Gieseke, 328 So.2d 16 (Fla.1976), the seller indicated he had plenty of “smoke,” and the officers smelled burning cannabis emanating from the trailer. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Porter v. State, 302 So.2d 481 (Fla. 3d DCA 1974). But probable cause itself is not sufficient to support a warrantless search. As enunciated above, any warrantless search is presumed to be illegal unless there are exigent circumstances in addition to probable cause. The State submits that the scurrying around by the occupant when the police knocked at the door and announced their presence supplied justification for a war-rantless search. It speculates that evidence might have been destroyed had the police taken time to obtain a warrant. We reject this rationale. In his testimony, the officer acknowledged that he intended to enter and search the trailer before he ever approached the mobile home. To sustain respondent’s argument would be to endorse the precise kind of conduct which the Fourth Amendment seeks to proscribe. Police could approach a dwelling, armed only with their own subjective suspicion that illegal activity was afoot, and wait for some suspicious movement, thereby giving them justification to break down the door and burst into the dwelling. Officers then would be equipped with the power to conduct any warrantless quest for evidence of guilt or of crime. Consequently, the suspicious movement which occurred when the police announced their presence cannot supply the exigent circumstances for the warrantless search. See Hannigan v. State, supra.

Notwithstanding the existence of probable cause, to carry its burden, the State needed to show that there was insufficient time to secure a search warrant. In effect, if time to get a warrant exists, the enforcement agency must use that time to obtain the warrant. Excluding the consent and plain view situations, which remove the need for a warrant, every “exception” to the warrant requirement derives from an emergency situation, where to obtain a search warrant would defer police activity that must be performed punctually to be effective. Thus, in the search-incident exception, the exigent circumstances justifying quick action are destruction of incriminating evidence within the reach of the arrested individual and harm to the arresting officer. Coolidge v. New Hampshire, supra. Lying at the heart of the “hot pursuit” and “destruction of evidence” exceptions is the element of urgency and immediate, responsive action by police. Additionally, the “emergency exception” permits police to enter and investigate private premises to preserve life, property, or render first aid, provided they do not enter with an accompanying intent either to arrest or search, Johnson v. United States, supra; United States v. Barone, 330 F.2d 543 (2d Cir. 1964), cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964). Again, the need to act expeditiously is essential.

From the facts of the case sub judice, it is apparent that no such emergency existed. The State seems to have had sufficient time to get a search warrant. There is no demonstrated attempt to secure one which was frustrated, thereby compelling action without a warrant. Deputy O’Brien was at the police station for at least forty-five (45) minutes while the petitioner’s brother was being booked. Certainly a search warrant could have been obtained during that period or at the very least an attempt could have been made to obtain one. There is no suggestion that O’Brien even considered utilizing the established procedure for contacting a magistrate during “after-hours.” Furthermore, the long delay between the time probable cause vested and the commencement of the search belies the assertion that the police were unable to obtain a warrant. The State’s contention that exigent circumstances were present because the occupants’ suspicions would be raised due to Dale’s failure to return, provoking them to destroy the contraband, is untenable. Law enforcement officers may not sit and wait as here (when they could be seeking a warrant), then utilize their self-imposed delay to create exigent circumstances.

It is obvious that a balance must be maintained between conflicting interests of society that would promote security within one’s home and at the same time, maximize the freedom of law enforcement officers to protect the peace of the community. Towards that goal, the Fourth Amendment establishes a procedure for effectuating the rights of individuals — the deliberation of a dispassionate and detached magistrate who initially makes an independent determination as to probable cause before a warrant may issue. Only under special circumstances is it unnecessary to follow this procedure. Were a magistrate not interposed between the policeman and the individual before a person’s privacy was threatened, that precious equilibrium between individual privacy and orderly society would be disrupted. As stated by the United States Supreme Court in Johnson v. United States, supra:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. (citations omitted)

Accordingly, the petition for certiorari is granted and the decision of the District Court of Appeal, First District, is quashed with directions to remand to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

ADKINS, BOYD and ENGLAND, JJ., concur.

OVERTON, C. J., dissents with an opinion.

OVERTON, Chief Justice,

dissenting.

I dissent.

I would find that exigent circumstances existed and would affirm the decision of the First District Court of Appeal.

      . The “Plain View” doctrine has frequently been considered an exception to the warrant requirement. In reality, materials that are seized because they are in plain view of an officer who observes from a location where he has a legal right to be are not subject to Fourth Amendment protection because their exposure implies that the possessor has no expectation of privacy regarding those articles. Similarly, one who consents to a warrantless search relinquishes any expectation of privacy which he might have as to the articles being searched.


author: SUNDBERG, Justice.

text:
    CITY OF MIAMI BEACH, Florida, a Florida Municipal Corporation, and Elaine Matthews, City Clerk, City of Miami Beach, Florida, Petitioners, v. MR. SAMUEL’S, INC., a Florida Corporation, Respondent.
    No. 49889.
    Supreme Court of Florida.
    Oct. 27, 1977.

      Joseph A. Wanick, Miami Beach, and Lee H. Schillinger of Reichenthal & Weinstein, Miami, for petitioners.
    George D. Gold of Moran & Gold, Miami, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 334 So.2d 47, because of its conflict with City of Miami Beach v. Atheneum, Inc., 254 So.2d 41 (Fla. 3d DCA 1971), holding that mandamus was an inappropriate remedy to test the action of city officials in denying a license. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. The issue for determination is whether the petitioners had a clear legal duty to issue an occupational license for a specified use when the zoning ordinance does not by its express terms mention that use in any zoning classification, or whether discretion must necessarily be exercised by them in such situation thereby precluding the use of mandamus as an appropriate remedy to compel the issuance of the license. We find that the exercise of discretion by petitioners was involved in determining whether to issue the license, and consequently, quash the decision of the District Court of Appeal, Third District, which court in the instant case held that the City was under an administrative duty to issue the license upon request.

Since June, 1974, respondent has operated a jewelry store at 756 Arthur Godfrey Road, Miami Beach, in a business district zoned C-4 under City of Miami Beach Zoning Ordinance No. 1891. Zoning Ordinance 1891 of the City of Miami Beach describes the “C-4” classification as a “Business District” which is “designed to accommodate a highly concentrated business core, in which businesses serving all residents and visitors of the City are located.” The uses permitted in this district include any use permitted in C — 1, C-2, or C-3 classifications, cabaret and nightclub. In addition, filling stations and “[u]ses not listed above which are similar in character to one or more permitted uses, and which would not be inappropriate in this District” are permitted as a Conditional Use, upon obtaining approval from the City of Miami Beach Planning Board and the City Council.

The “C-l Neighborhood Business District” classification permits nineteen specifically authorized uses, including “[pjersonal service uses, conducted entirely within completely enclosed buildings. Such uses include barber shops, beauty parlors, photographic or artists studios, photographic developing or printing establishment, picture framing shop, shoe repair shop, tailor shop, travel bureau, ticket office, messenger service, taxicab office, newsstand, telephone exchange or telegraphic service stations, dry cleaning or laundry receiving stations, hat cleaning and blocking, self-service or coin operated laundry or dry cleaning establishment and other personal service uses of a similar character.” Pawnbrokerage is not a specifically enumerated use. The “C-2 General Office District” classification permits any use permitted in the C-l District, except conditional uses, automatic ice vending machines and bicycle stores or repair shops. Clinics and health clubs are specifically permitted, but pawn shops are not. The “C-3 Central Business District” classification presently applies solely to the Lincoln Road Mall area. This classification permits fifteen enumerated uses, including the same personal service uses described in the C-l District. Conditional uses are allowed in this District only for uses “similar in character” and for public or governmental buildings, public parks, public utilities or services, sidewalk cafes and temporary uses, but pawn shops are not mentioned.

Pursuant to Section 7-1 of the Zoning Ordinance, an application for conditional use is first considered by the Planning Board, which forwards its recommendation to the City Council.

In July, 1974, respondent applied for an occupational license as a pawnbroker limited to jewelry. After being informed that under the Miami Beach Zoning Ordinance a pawnbrokerage business could not be operated at its present location without a conditional use permit, respondent applied for such a permit. The application of Mr. Samuel’s Inc. was considered by the Planning Board of the City of Miami Beach, which, after holding several public hearings on the matter, recommended denial. The Planning Board’s recommendation was submitted to the City Council of the City of Miami Beach which denied the application at its regular meeting of November 6,1974. Upon respondent’s request, the City Council reconsidered the matter at its meeting of December 18, 1974, and after hearing from counsel for respondent voted not to reconsider its previous action.

On April 28, 1975, four months and ten days after the City Council heard respondent’s request for a reconsideration of its decision denying the conditional use application, respondent filed a petition for writ of mandamus in the Circuit Court of the Eleventh Judicial Circuit for Dade County, Florida. The circuit court issued its alternative writ of mandamus requiring respondent to show cause why an occupational license for pawnbrokerage should not be issued to respondent immediately upon his payment of $500 to the city clerk. After preliminary pleadings by petitioners and response to the alternative writ, upon respondent’s motion for issuance of the writ notwithstanding the return, the trial court entered its final judgment and peremptory writ of mandamus. The issuance of said writ thereby constituted a declaration that the occupation of pawnbrokerage is permitted in the zoning district in which Mr. Samuel’s is located and a requirement that the City issue an occupational license for pawn-brokerage upon payment by respondent of the prescribed license fee.

Upon appeal, the District Court of Appeal, Third District, affirmed the action of the trial court. City of Miami Beach and Elaine Matthews v. Mr. Samuel’s, Inc., 334 So.2d 47 (Fla. 3d DCA 1976). Petitioners asserted in the district court that respondent’s proper remedy was by certiorari to the City Council and that collateral attack by mandamus was improper. If certiorari was the appropriate remedy and mandamus inappropriate, the action in the trial court was untimely as it was brought more than 30 days after the decision of the City Council. The District Court of Appeal rejected the assertions of petitioners and held that the City had a clear legal duty to issue the license upon application as a nondiscretion-ary administrative function. That court relied upon De Groot v. Sheffield, 95 So.2d 912 (Fla.1957), and Harris v. Goff, 151 So.2d 642 (Fla. 1st DCA 1963). No reference was made to its earlier decision in City of Miami Beach v. Atheneum, Inc., supra. The District Court of Appeal bottomed its decision upon its reading of the City’s Zoning Ordinance, finding that respondent’s contemplated business was included within the service businesses enumerated in the C-l, C-2, and C-3 zoning classifications.

In City of Miami Beach v. Atheneum, Inc., supra, essentially the same situation was presented to the District Court of Appeal, Third District. The applicant in Athe-neum was the owner of an adult bookstore in the City of Miami Beach. In addition to its occupational license for such business, the proprietor applied for a license for operation therein of five coin-operated “mini movie” machines. The zoning classification of the area in which the applicant’s business was located listed twenty-two authorized uses with the following additional provision:

“Or other similar enterprises or businesses which are not more obnoxious or detrimental to the welfare of the particular community than the enterprises or businesses above enumerated . . . .”
254 So.2d 41, 42.

Machines for projection of movies had not been licensed in that district, nor had application for a license previously been submitted. After the City denied the application the applicant filed a petition for writ of mandamus in the circuit court to command issuance of the license requested. The trial court entered summary judgment in favor of the applicant.

In reversing the trial court, the District Court of Appeal concluded, inter alia, that issuance of the license involved the exercise of discretion and, therefore, its issuance was not subject to compulsion by writ of mandamus. The court observed that the question of whether the use of movie projection machines in the applicant’s business was a proper subject for licensing in the zoning area was not without doubt; the use in question was not expressly authorized in the zoning classification. The court noted that the judgment and discretion of the City was patently involved in determining whether operation of the projection machines was an enterprise or business similar to those listed in the zoning classification and not more obnoxious or detrimental to the welfare of the particular community than the enterprises or businesses which were enumerated.

In the case at bar, the same principle applies. It is apparent that pawnbro-kerage is not expressly delineated in C-l, C-2, or C-3 zoning classifications. Assuming, however, that it is similar in character to one or more of the permitted uses in any one of those zoning classifications, Zoning Ordinance 1891 of the City of Miami Beach provides that it shall, nevertheless, be a “conditional use” in a C-4 area. The ordinance clearly states that such conditional uses must be similar in character to one or more permitted uses and, in addition, “not be inappropriate in this District.” ” Furthermore, the ordinance expressly requires approval from the City of Miami Beach Planning Board and the City Council for such conditional use. It is obvious that both the City of Miami Beach Planning Board and the City Council may exercise some discretion as to such conditional uses in: (i) determining that the use is similar in character to one or more permitted uses and (ii) determining that such use would not be inappropriate in that District. If either of those bodies abuses its discretion in making such determinations the applicant’s remedy is by certiorari in the circuit court. Because the representatives of the City must exercise some discretion in determining whether to grant or deny the conditional use application, mandamus does not lie. Fasenmyer v. Wainwright, 230 So.2d 129 (Fla.1969); Solomon v. Sanitarians’ Registration Board, 155 So.2d 353 (Fla.1963); State ex rel. Smith v. City of Margate, 155 So.2d 165 (Fla. 2d DCA 1963).

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Third District, is quashed, and this cause is remanded to the District Court of Appeal, Third District, with instructions to remand to the trial court for discharge of the writ of mandamus.

It is so ordered.

ADKINS, Acting C. J., and HATCHETT and KARL, JJ., concur.

BOYD, J., dissents.


text:
    STATE of Florida, Petitioner, v. Alexander Ronald PARSONS, Respondent.
    No. 50050.
    Supreme Court of Florida.
    Oct. 27, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, George R. Georgieff and Charles W. Mus-grove, Asst. Attys. Gen., Tallahassee, for petitioner.
    J. Eugene Kelley, Jr., of Cotten, Shivers, Gwynn & Daniel, Tallahassee, for respondent.
   PER CURIAM.

Based upon a conflict between the decision of the District Court of Appeal, First District, in the above-styled ease (334 So.2d 308) and Hornblower v. State, 331 So.2d 339 (Fla.1st DCA 1976), we issued a writ of certiorari in this cause. In view of our decision filed today in Hornblower v. State, 351 So.2d 716 (Fla.1977), we approve the decision of the District Court of Appeal, First District, in this cause and discharge the writ of certiorari.

It is so ordered.

ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

OVERTON, C. J., dissents.