author: CLARK, Retired Circuit Judge.

text:
    Roderick HENDRICK v. STATE.
    3 Div. 871.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied Feb. 20, 1979.
    C. Collier Carlton of Carlton & Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

Appellant was convicted of a crime against nature and sentenced to imprisonment for ten years, pursuant to Ala.Code 1975, § 13-1-110.

The indictment charged that defendant “against the order of nature, carnally knew Willie Reese.”

The only witnesses who testified on call of the State as to the time, place and circumstances of the alleged crime were Willie Reese, Wayne Duncan and three other inmates of Mt. Meigs Boys Industrial School. Reese testified positively that defendant committed the crime charged in the indictment. Duncan testified that he observed the commission of the crime charged in the indictment. The other three witnesses testified as to perverted sexual conduct by defendant, but they did not observe the commission of the specific crime charged. Defendant, the only witness for the defense, positively denied commission of the crime charged but testified extensively as to perverted sexual behavior between him and Reese.

Appellant urges that the evidence was not sufficient to support the verdict and that the trial court was in error in not granting defendant’s motion to exclude the evidence, in refusing the affirmative charge in favor of defendant requested by him, and in overruling defendant’s motion for a new trial.

In insisting that the evidence was insufficient to support the verdict, appellant argues that Reese was an accomplice and that his testimony was not corroborated.

There was some evidence from which the jury could conclude that Reese voluntarily submitted to the crime and thereby became an accomplice. LaBryer v. State, 45 Ala. App. 33, 222 So.2d 361 (1969). However, there was strong evidence to the contrary. In addition, appellant argues that Wayne Duncan’s testimony in which he stated that he was a “lookout,” that he was “watching for the counselor to come,” afforded an inference that he was an accomplice. At the best for defendant, if may be said that perhaps it did afford such an inference,, but it fails to meet the test that the witness, on the evidence shown, could “have been indicted and convicted of the offense charged either as principal or accessory. If he could not, he is not an accomplice.” Miller v. State, 290 Ala. 248, 252, 275 So.2d 675, 679 (1973). It could be found from the evidence as a whole that the witness’ status as a “lookout” was merely as an accommodation to the inmates to protect them against observation by counselors of activities that might meet the disapproval of counselors, even though criminal conduct, particularly criminal conduct charged in the indictment, was not involved.

In addition to the direct testimony of Reese and Duncan that defendant committed the act charged in the indictment, there was circumstantial evidence in the testimony of the three other inmates as to what they saw and heard that was sufficient basis for the finding of guilt of the offense charged in the indictment. The particular crime, as other crimes, may be proved by circumstantial evidence. Tarrant v. State, 12 Ala.App. 172, 67 So. 626 (1915).

The court was not in error in denying defendant’s motion to exclude, in refusing the general affirmative charge requested in writing by defendant, or in overruling defendant’s motion for a new trial. Decency forbids, and justice does not require, that we further amplify the sordid details of the crime shown by the evidence.

During defendant’s cross-examination of Wayne Duncan, the following occurred:

“Q When are you supposed to get out of Mt. Meigs?
“A Four weeks.
“Q Did anybody tell you that if you changed your testimony it might effect [sic] your release date, that you might have to stay longer?
“A No, sir.
“Q Do you believe that if you change your testimony or did change your testimony that you’d have to stay longer? “MR. POOLE: Objection, Judge, calls for a mental conclusion.
“THE COURT: What was the question; did he believe that?
“MR. CARLTON: Yes, sir.
“THE COURT: Calls for a mental operation, sustained.”

Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), knelled the unlamented passing of the exclusionary rule in Alabama of testimony of a witness as to his own intent or other state of mind. Long before Starr, however, there was general uniformity that the testimony of a witness on cross-examination was excepted from the rule. Some exceptions to the exception were noted by Judge McElroy in his article in 1940 for the Alabama Lawyer, “Admissibility in Alabama of a Witness’ Testimony to His Own Intent or Other State of Mind.” 1 Ala. Lawyer 221 (1940). He stated at page 231:

“It should be noted that there are a few decisions which wholly disallow inquiry on cross-examination as to the witness’ state of mind. They simply ignore the exception applied in the cases referred to above.”

If the witness believed that the scheduled term at Mt. Meigs Industrial School would be lengthened if he changed his testimony in the case, defendant should have been allowed to obtain that information from the witness for consideration by the jury on the question of the interest of the witness. To hold otherwise is in conflict with Cooley v. State, 7 Ala.App. 163, 62 So. 292 (1913) and Knight v. State, 23 Ala.App. 582, 129 So. 478 (1930). But see McCain v. City of Montgomery, 38 Ala.App. 568, 92 So.2d 678, cert. denied 265 Ala. 551, 92 So.2d 682 (1957).

In Cooley and in Knight, it was held to be reversible error for the trial court to sustain an objection of the prosecution to a question asked on cross-examination of a witness for the prosecution purporting to elicit from the witness the expectation of the witness of earning a reward for the conviction of defendant. In McCain v. City of Montgomery, supra, it was held that there was no reversible error in the court’s sus-tention of an objection by the State to a question asked State’s witness on cross-examination as to whether he had any intention at that time to bring an action for damages against defendant growing out of the same incident as that charged against defendant. The Court of Appeals held that the testimony called for by the question would constitute violation of the exclusionary rule as to the intent or mental operation of the witness and that an affirmative answer by the witness would not have added anything “to the picture already drawn” by the evidence. In denying certiorari, the Supreme Court said at 92 So.2d 683:

“We do not feel that we would be justified in disturbing the Court of Appeals’ conclusion that the error insisted on, if error, did not probably injuriously affect substantial rights of petitioner. But we think it appropriate to say that we pre-termit consideration of whether the evidence objected to is admissible on cross-examination when it is material.”

We have no reservation as to the materiality of the evidence sought to be introduced or of the substantial harm to defendant of not being allowed to show that the witness did believe that his stay at Mt. Meigs would be lengthened if he swore differently from his testimony on the trial. Such testimony would not have been cumulative. Neither he nor any other witness had testified to that effect. Each of the State’s five witnesses who testified as to the conduct of defendant had been asked on cross-examination if anybody told him that if he changed his testimony he might have to stay longer at Mt. Meigs. Three of the witnesses, including Duncan, answered “No” to the question; two of the witnesses, including Reese, answered “Yes.” Other than Reese, a possible accomplice, Duncan was probably the most damaging witness to defendant. Defendant’s right to a “thorough and sifting” cross-examination, as provided by Code Ala.1975, § 12-21-137, was denied defendant by the particular ruling of the trial court under consideration. The usual discretion vested in the trial court to control the extent of cross-examination is narrowed in proportion to the extent of the adverseness of the testimony of the witness and the value to the defendant of a disac-creditation of the witness. Wells v. State, 292 Ala. 256, 292 So.2d 471 (1973); Williams v. State, 44 Ala.App. 503, 214 So.2d 712 (1968). It should be noted also that the trial court’s ruling now under consideration did not purport to be action on the basis of the discretion vested in it but solely for the reason that the elicited testimony called for a “mental operation.”

Appellant’s only other insistence on a reversal is that the trial court “erred in denying the appellant’s timely request for treatment under the Youthful Offender Act.” Ala.Code 1975, §§ 15-19-1, et seq. Appellant relies upon Watkins v. State, Ala.Cr.App., 357 So.2d 156, cert. denied, Ala., 357 So.2d 161 (1978), which was remanded to the trial court for an investigation and examination of appellant at a hearing and a determination by the trial court whether he should be treated as a youthful offender. The record in the instant case indicates, but does not unambiguously show, that such investigation, examination and determination were made. We are inclined to think that probably the deficiency is not as to the action of the court but as to the insufficiency of the record to show definitely such action. We need only note at this time that on further prosecution of the case, regard should be given to the matter so that there will remain no serious question as to whether there was compliance with the procedure required by the Youthful Offender Act as clearly set forth by Judge Bowen in Watkins, supra.

For the error indicated, the judgment of the trial court should be reversed and the cause remanded.

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.

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-311.
    Supreme Court of Alabama.
    March 23, 1979.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: BOWEN, Judge.

text:
    Don Robert BARCLAY v. STATE.
    3 Div. 926.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied Feb. 20, 1979.

      Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Karen N. Daniel, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the offense of child molestation as defined in Section 13-1-113, Code of Alabama 1975. Sentence was fixed at the maximum term of five years’ imprisonment.

Sufficient evidence was introduced to authorize the jury to find that the appellant, under the guise of helping fourteen year old Marlin, took Marlin to a deserted building, forced him to drink vodka, attempted to make Marlin perform fellatio and committed an act of sodomy upon the youth. The appellant admitted being with Marlin but disclaimed any improper conduct.

I

Initially the appellant alleges that the trial judge erred in failing to charge the jury that Section 13-1-114, Ala.Code 1975 (enticing a child to enter a vehicle, house, etc., for immoral purposes), and Section 12-15-13, Ala.Code 1975 (contributing to the delinquency of a minor) are lesser included offenses of Section 13-1-113, Ala.Code 1975 (child molestation).

At the close of the court’s oral charge defense counsel announced “satisfied”. The record contains no written requested charges and there is no indication that any requested charge was refused. In the absence of an objection or the refusal of a requested instruction there is nothing for this court to consider. Ingram v. State, 48 Ala.App. 193, 263 So.2d 179, cert. denied, 288 Ala. 743, 263 So.2d 181 (1972); Ross v. State, 16 Ala.App. 393, 78 So. 309 (1918).

II

Inasmuch as the constitutionality of the statute under which the appellant was indicted and convicted was not presented or contested in the trial court by any means, that question is not due to be decided on appeal. This court will not consider on appeal any constitutional questions not raised below. Steele v. State, 289 Ala. 186, 266 So.2d 746 (1972). However we note that the present statute has withstood at least one attack upon its constitutionality. Blocker v. State, 40 Ala.App. 658, 120 So.2d 924 (1960).

III

The appellant also challenges the lawfulness of the search of the building where Marlin was sexually assaulted and various items of physical evidence were seized. The State’s position is based upon a written consent to search form executed by the appellant and by the fact that the appellant’s wife voluntarily unlocked the door for them. Under the State’s evidence the appellant consented to the search of the deserted building only after he had talked to his wife. The appellant presented contradictory evidence on this point and maintains that a consent to search is per se invalid and the State failed to prove that the consent was voluntarily and intelligently given.

Proper consent may constitute a waiver of Fourth Amendment rights, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), and makes a search warrant wholly unnecessary. Toston v. State, 333 So.2d 161 (Ala.Cr.App.1976). The voluntariness of consent to search is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Smith, 543 F.2d 1141 (5th Cir. 1976).

The failure to inform the accused of his right to refuse is a factor to consider in determining voluntariness but is not to be given controlling significance. United States v. Smith, 543 F.2d 1141, 1143 (5th Cir. 1976). “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048. The burden of proving that the consent was, in fact, freely and voluntarily given rests upon the prosecution. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “The State must prove that there was no duress or coercion express or implied. The consent must be unequivocal and specific, and freely and intelligently given. There must be clear and positive testimony.” Hardy v. State, 53 Ala.App. 75, 78, 297 So.2d 399, 402 (1974).

A “permission for search of premises and residence without search warrent” was signed by the appellant. That permission, in pertinent part, reads:

“Without there having been any threat or pressure, coersion or duress of any kind, and having been advised of my constitutional rights, and having waived said rights, I do hereby give my consent or permission for officers: H. A. Simpson & Vernon Hamn
Address: 612 W Fourth
White house next to above address
of the Autauga County Sheriff’s Department to search my premises and residence and to seize and carry away any such items deemed necessary by above officers.
s/ Don R. Barclay Signature”

An examination of the totality of the circumstances reveals that the evidence fully established that the appellant’s consent to search was voluntarily given after being advised of his constitutional rights, despite the contention that the consent was involuntary because the appellant did not know he had the right to refuse.

We have searched the record for error prejudicial to the accused. In its absence, we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Don Robert BARCLAY.
    78-315.
    Supreme Court of Alabama.
    March 23, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    William P. HANCOCK v. STATE.
    4 Div. 665, 666.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied Feb. 20, 1979.

      Sam E. Loftin, Phenix City, for appellant.
    William J. Baxley, Atty. Gen. and Eddie Hardaway, Jr., Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was charged by separate indictments with burglary in the second degree and possession of Percodan, a controlled substance, in violation of the Alabama Uniform Controlled Substances Act. At arraignment, in the presence of his attorney, appellant pled not guilty to both indictments. No special pleas were entered or reserved at the time of pleading to the general issue.

Appellant was first put to trial on the burglary indictment. The jury returned a verdict of guilty as charged and appellant was sentenced to a term of six years in the penitentiary. Appellant was then tried on the charge of violation of the Alabama Uniform Controlled Substances Act. The jury returned a verdict of guilty as charged, and the trial court sentenced him to a term of three years in the penitentiary, the sentence to run concurrently with that imposed in the burglary conviction. Appellant gave notice of appeal from the judgment of conviction in both cases, the cases were consolidated for the purpose of appeal, and the appellant is herein represented by trial counsel.

A single hearing for both cases was held on a motion to suppress the evidence, and the motion was denied. Following the burglary conviction and prior to the trial of the second cause, appellant orally entered a plea of former jeopardy to which the State demurred, and which was denied by the trial court. Appellant moved to exclude the State’s evidence in both cases.

The trial court’s refusal to enter appellant’s plea of former jeopardy is not properly before this Court for review. The plea was made orally after the plea of not guilty was entered. Oral pleas, except the plea of guilty or not guilty, delivered in open court, received by the clerk and entered on the minutes are unknown in our practice. May v. Lingo, 277 Ala. 92, 167 So.2d 267. Further, failure to file a plea of former jeopardy before or simultaneously with a plea of not guilty constitutes a waiver. Steward v. State, 55 Ala.App. 238, 314 So.2d 313, writ denied, 294 Ala. 201, 314 So.2d 317.

At the hearing on the motion to suppress, Major Bobby Ellis of the Phenix City Police Department testified that, at approximately 3:20 a. m., on January 26, 1978, he saw appellant and another man, Bobby Ray Clenny, in a 1968 gray Oldsmobile Cutlass. The left headlight was out. Appellant was stopped because of erratic driving and also because a radio dispatch a few minutes earlier had described a vehicle fitting the description of appellant’s car, occupied by two white males, and requested that it be stopped and checked for suspicion of burglary. Major Ellis arrested appellant for driving while intoxicated and took him to headquarters. Appellant’s car was driven to headquarters by another officer.

The vehicle was not searched when appellant was stopped but was searched approximately 25 minutes later at the police department. The car was parked in a lighted breezeway at the station and there was a red and white cigar box visible under the right front seat from outside the car. Major Ellis and another officer opened the car and recovered the box, which contained prescriptions, invoices, and cancelled checks from Sherwood Pharmacy. Appellant was in police custody at the time the vehicle was searched.

On cross-examination Major Ellis testified that the purpose of the search was to determine if the vehicle contained anything which might connect appellant to the burglary.

Lieutenant Kenneth Alsabrook of the Phenix City Police Department testified that, on January 26,1978, he received a call at 3:04 a. m. of an alarm sounding at Sherwood Pharmacy. En route to that location he met a 1968 Oldsmobile Cutlass with the left headlight out, bearing a Georgia license plate, and occupied by two white males. A box-like object protruded from the partially open trunk. He radioed a description of the vehicle to other units and requested that it be stopped and checked.

At the scene of the burglary, Officer Alsabrook was informed by the owner of the pharmacy that a red and white cigar box containing prescriptions and a gray steel drug cabinet had been taken. When he returned to headquarters, Lieutenant Al-sabrook and Major Ellis went to the appellant’s car and saw the red and white cigar box protruding from underneath the right front passenger’s seat. The car was opened and the box was removed. Two pairs of gloves and a jack handle were also removed from the seat of the car. Lieutenant Alsa-brook also testified that it was standard procedure to search any car impounded, but that no written inventory had been taken.

Officer Steve Purvis testified that, at approximately 3:15 on the morning of January 26, he stopped appellant in response to the radio dispatch. At that time the trunk of appellant’s car was closed. Appellant opened the trunk of the car. Officer Purvis looked in but did not search the trunk. While appellant was out of the car he also looked into the front seat but did not look under the seat. Appellant was not detained at that time.

Officer Reuben Redd of the Phenix City Police Department testified that he was with Officer Purvis when appellant was stopped. He testified that they were looking for the drug cabinet taken from the pharmacy and that, when it was not found in the trunk of the car, appellant was allowed to leave. Following this hearing the motion to suppress was denied.

At the burglary trial, Lawrence Lee Bryan, owner of Sherwood Pharmacy, testified for the State that at 3:00 a. m., on January 26, he was called to the store where he found that the front door had been broken into and that a drug cabinet and a cigar box containing prescriptions were missing. He testified that all of the drugs in the cabinet were taken and that their wholesale value was $900 to $1,000. All the drugs required prescriptions under the Uniform Controlled Substances Act.

Lieutenant Kenneth Alsabrook testified, repeating his earlier testimony. In addition, he testified that the drug cabinet was recovered the following morning from a nearby vacant lot. The cabinet was inventoried and fingerprinted at that time.

Lawrence Bryan was recalled and identified the cigar box and its contents and the drug cabinet as those taken from the pharmacy.

Major Bobby Ellis testified, repeating his earlier testimony regarding stopping appellant’s car, the arrest and the search of the vehicle.

Officer Steve Purvis again testified to stopping appellant in response to the radio dispatch. He further testified that on January 27, when he went off duty, he searched the area in the vicinity of the pharmacy and found a large drug cabinet and a sledge hammer in a vacant lot. He called Lieutenant Alsabrook and the two officers recovered the cabinet and sledge hammer, which Lieutenant Alsabrook took to police headquarters.

Officer Reuben Redd repeated his earlier testimony and in addition testified that he drove appellant’s car to police headquarters, locked both doors and turned the key over to Major Ellis. He further testified that as he was driving the car to headquarters he noticed a part of a box sticking out from under the right front seat, which he reported to Major Ellis at headquarters.

Officer Aubrey Harbart of the Phenix City Police Department testified that on January 27 he lifted several latent fingerprints and one palm print from the drug cabinet recovered by Lieutenant Alsabrook. These prints were attached to appellant’s fingerprint card which was on file at the Phenix City Police Department. They were then turned over to Captain Robert Clark to be mailed to the Department of Public Safety for identification.

Boyd Battles, formerly an officer with the Phenix City Police Department, identified the fingerprint card as that of appellant, William Pierce Hancock, and testified that he fingerprinted appellant on January 1, 1977, and that the prints on the card belonged to appellant and the card bore appellant’s signature.

Tangie Redd, secretary in the Phenix City Police Department, testified that Officer Harbart turned the fingerprint cards over to Captain Clark in her presence, that Captain Clark gave them to her and that she mailed them to the Department of Public Safety. When the cards were returned from the Department of Public Safety by mail, Ms. Redd turned the envelope over to Detective Harbart who opened it in her presence.

Fulton Prevost, latent print examiner, Department of Public Safety, testified that he compared the latent prints with the known prints of appellant and determined that the right palm prints were identical. His qualifications as a fingerprint expert were not questioned.

Appellant, William P. Hancock, testified in his own behalf that, in the early morning hours of January 26, he and Bobby Ray Clenny drove to Phenix City from Columbus, Georgia, to take a companion home. He admitted being on the road where the pharmacy was located some time after 3 o’clock, but denied ever having heard of Sherwood Pharmacy or that he had broken into it that night. He testified that he and his companion were stopped by Officer Pur-vis, that he opened the trunk, Officer Pur-vis looked in and that Officer Redd looked into the car. He testified that he was again stopped by Officer Ellis, arrested for DWI, and then booked for second degree burglary-

Appellant testified that he had never seen the cigar box before, that he did not take it from Sherwood Pharmacy, and that he did not know how it got under the seat of his automobile. He also testified that he did not know how his fingerprints could have gotten on the drug cabinet. Appellant further testified that he had twice been convicted of robbery and served time for both offenses. The robbery convictions were in 1972 and 1973.

On cross-examination appellant recalled being fingerprinted by Boyd Battles on January 1, 1977, but did not recall that a palm print was taken. He identified his signature on the fingerprint card.

At the trial for possession of a controlled substance the above witnesses gave substantially the same testimony. Additionally, there was testimony by the State Toxicologist that the drug, Percodan, recovered from the drug cabinet was a controlled substance, the active chemical ingredient of which is a derivative of opium. Appellant did not testify in his behalf at the second trial, and no other defense witnesses were called.

The evidence adduced at the burglary trial was sufficient to sustain a conviction of second degree burglary, the applicable elements of which are breaking, entering and an intent to steal or commit a felony. Eason v. State, 48 Ala.App. 471, 265 So.2d 913.

The evidence at the second trial was sufficient to prove violation of the Alabama Uniform Controlled Substances Act. It is sufficient in a prosecution for unlawful possession of narcotics to show constructive possession. 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. In the case at bar, such guilty knowledge may be readily inferred by the circumstances in which the appellant came into possession of the drug. Daniels v. State, 49 Ala. App. 654, 275 So.2d 169.

Appellant contends that the trial court erred in denying the motion to suppress, and asserts that the evidence seized from his automobile was the product of an unlawful, warrantless search.

Where exigent circumstances exist, and there is probable cause to believe that fruits or other evidence of a crime may be found, an immediate warrantless search is justified as an exception to the Fourth Amendment warrant requirement. See Daniels v. State, 290 Ala. 316, 276 So.2d 441, wherein the recognized exceptions to the warrant requirement are enumerated.

The inherent mobility of an automobile frequently gives rise to circumstances which, if supported by probable cause, justify an immediate warrantless search. Landry v. State, 56 Ala.App. 421, 321 So.2d 759. Where such circumstances exist, the search may also be conducted later, at the police station, without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

In the instant case, Major Ellis stopped the appellant and his companion in appellant’s automobile, in response to a radio dispatch requesting that a vehicle fitting the description of appellant’s car be stopped and checked on suspicion of burglary. Appellant was also driving erratically. Major Ellis was alone and it was the middle of the night. The exigency of an immediate search for possible fruits of a burglary is apparent from these circumstances.

The danger inherent in the attempt by a lone officer to search a vehicle at night, on a deserted street, for evidence of a crime, in the presence of two suspects, is obvious. Major Ellis’ action in calling for assistance and removing the vehicle to the safety of the police station was entirely reasonable and prudent.

The question which remains is whether the radio dispatch furnished sufficient probable cause to stop appellant’s vehicle. While officers are entitled to rely on police radio broadcasts, the subsequent judicial determination as to probable cause must necessarily turn on all the circumstances giving rise to the dispatch. Owens v. State, 51 Ala.App. 50, 282 So.2d 402; relying on Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306. Under Owens, supra, the mere fact of a dispatch will not in and of itself give rise to probable cause. The credibility of the source and the detail of the information dispatched, along with other pertinent factors, must be considered.

Here, Lieutenant Alsabrook was proceeding to Sherwood Pharmacy in response to a burglar alarm. A few blocks from the pharmacy, he encountered a 1968 gray Oldsmobile Cutlass with the left headlight out, bearing a Georgia license tag. The car was occupied by two white males, and a box-like object protruded from the partially open trunk. He radioed other units this full description and requested that the vehicle be stopped and cheeked in connection with the burglary.

Officers Purvis and Redd stopped appellant moments later in response to the dispatch. Appellant opened the trunk, but no evidence of the burglary was found and he was allowed to leave. Only a few moments later, Major Ellis observed appellant driving erratically and noted that the car was a 1968 gray Oldsmobile Cutlass, with the left headlight out, a Georgia tag, and was occupied by two white males. He testified that he stopped appellant both because of the way appellant was driving and because the car fit the description of the car suspected of possible involvement in a burglary. Appellant was stopped a few blocks from the scene of the burglary within twenty minutes of the alarm.

The dispatching officer, as well as the responding officers, testified at the trial as to the full circumstances giving rise to the dispatch and the action taken. The facts of this case provide ample probable cause for initially stopping appellant’s automobile in response to the radio dispatch and for the later search of the car at police headquarters. Chambers v. Maroney, supra.

This is a strong case of circumstantial evidence. Circumstantial evidence is entitled to the same weight as direct evidence provided that it points towards the guilt of the accused. Williams v. State, Ala.Cr.App., 348 So.2d 1142; Woods v. State, Ala.Cr.App., 344 So.2d 1225; Brown v. State, Ala.Cr.App., 331 So.2d 820.

A careful search of the record reveals no error injuriously affecting the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte William P. HANCOCK.
    78-324.
    Supreme Court of Alabama.
    March 23, 1979.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: BOYD, Justice. PER CURIAM. ALDERMAN, Justice,

text:
    James L. RODEN, etc., et al., Petitioners, v. K & K LAND MANAGEMENT, INC., a corporation, Respondent.
    No. 51954.
    Supreme Court of Florida.
    July 20, 1978.
    Rehearing Denied March 22, 1979.
    Michael D. Martin of Martin & Martin, Lakeland, for James L. Roden.
    R. Lawrence DeFrances, Ad Valorem Tax Counsel, and Zollie Maynard, Jr., Asst. Atty. Gen., Tallahassee, for Dept, of Revenue, petitioners.
    R. Lee Bennett of Lowndes, Peirsol, Drosdick & Doster, Orlando, for respondent.
    C. A. Boswell and M. David Alexander of Boswell, Boswell & Conner, Bartow, for CF Mining Corp., amicus curiae.

      Martha W. Barnett of Holland & Knight, Lakeland, for First Mississippi Corp., ami-cus curiae.
   BOYD, Justice.

The decision of the District Court of Appeal in this cause, Straughn v. K & K Land Management, Inc., 347 So.2d 724 (Fla. 2d DCA 1977), conflicts with the decision in First National Bank of Hollywood v. Markham, 342 So.2d 1016 (Fla. 4th DCA 1977). We have jurisdiction of the petition for certiorari. Article V, Section 3(b)(3), Florida Constitution.

The issue in conflict is whether more than just agricultural use is required to establish for purpose of tax assessment that land may be classified agricultural and be entitled, therefore, to preferential tax treatment. In Straughn v. Tuck, 354 So.2d 368 (Fla.1978), we reviewed the constitutionality of Section 193.461(3), Florida Statutes. The statute mandates that to gain “agricultural” classification land must be “actually used for a bona fide agricultural purpose,” Section 193.461(3)(a), which means “good faith commercial agricultural use of the land.” Section 193.461(3)(b). In the course of the opinion upholding the statute the following was stated, at 370: “ ‘use’ is still the guidepost in classifying land, although other specifically enumerated factors relative to use may also be considered. Agricultural use is now and has always been the test.” We adhere to this view. As we intimated in Tuck the factors listed in subsection (b) of Section 193.461(3) are to be considered in making the determination of good faith agricultural use but none is determinative. We disapprove of Markham to the extent it conflicts with Tuck. This resolves the conflict between Markham and this case, too.

A problem not present in Markham and Tuck is present in this case. Sale of land for a purchase price three or more times greater than its agricultural assessment creates a presumption that the land is not used for good faith agricultural purposes. Section 193.461(3), Florida Statutes. The presumption may be overcome “[u]pon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture.” In this case the'District Court upheld the trial court’s determination that there existed special circumstances sufficient to rebut the presumption. As the Department of Revenue has done before, it stresses that commercial success is a necessary circumstance for rebuttal. We reject this notion. As we stated in Straughn v. K & K Land Management, 326 So.2d 421 (Fla.1976), “special circumstances” may be drawn from the factors for consideration in the classification process listed in Section 193.461(3)(b). The presence of all or any one factor in particular is not necessary for the presumption’s rebuttal.

In this ease K & K Land Management purchased approximately 350 acres of producing citrus grove for six times the agricultural assessment. Twenty-five of the acres were developed into an amusement park, but the remainder of the grove was continued to be used for citrus production. The issue was whether the presumption of nonagricultural use in Section 193.-461(4)(c) was overcome as to the acreage continued for citrus production. On the record before us, we cannot say the trial court found incorrectly that the presumption had been rebutted and that respondent was entitled to agricultural classification.

The decision of the District Court is affirmed. First National Bank of Hollywood v. Markham, 342 So.2d 1016 (Fla. 4th DCA 1977), is disapproved.

It is so ordered.

ENGLAND, C. J., and SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., concurs in result only.

ORDER

PER CURIAM.

The motion of petitioner Florida Department of Revenue for rehearing or clarification is denied.

It is so ordered.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur.

ALDERMAN, J., dissents with an opinion, with which ENGLAND, C. J., and SUNDBERG, J., concur.

ALDERMAN, Justice,

dissenting.

Because I believed that the twenty-five acres of highway frontage developed into an amusement park must have had a much higher value than the remaining 325 acres of citrus grove property, I concurred in result only in this Court’s opinion filed July 20, 1978, which allowed the taxpayer the benefit of an agricultural classification on its grove land. I reasoned that the purchase price of the grove land could not be determined by simply dividing the total number of acres purchased into the overall purchase price to get an average price per aere, and I assumed that the actual price for the grove land was less than the average price per acre of all the land purchased by K & K. During oral agrument on petitioner’s motion for rehearing, however, it became clear to me that the record contains no evidence to contradict the property appraiser’s conclusion that K & K paid a uniform price per acre for all the land it purchased. Assuming then that K & K paid six times the agricultural assessed value for the grove land, I find that section 193.-461(4)(c), Florida Statutes (1973), creates a presumption that “such land is not used primarily for bona fide agricultural purposes.” This presumption may be rebutted “[u]pon a showing of special circumstances by' the landowner demonstrating that the land is to be continued in bona fide agriculture . . . Section 193.461(4)(c). “Bona fide agricultural purposes” means “good faith commercial agricultural use of the land.” Section 193.461(3)(b).

Special circumstances, sufficient to overcome the statutory presumption, must be more than a showing that an existing agricultural use of the land is continued. Markham v. Nationwide Development Co., 349 So.2d 220 (Fla. 4th DCA 1977). In the present case, K & K failed to contradict the property appraiser’s finding that it paid six times the agricultural assessed value of the grove land, and it has not shown any special circumstances, consistent with good faith commercial agricultural use of this land, that would justify paying such an inflated price. Certainly, its continued use of the land as a grove could not be considered a good faith commercial agricultural use when there is no reasonable expectation of meeting investment costs and realizing a reasonable profit. This does not mean that K & K cannot continue to use the land as a grove, thereby generating some income to reduce the costs of its speculative investment. Rather, it means that K & K cannot use the Green Belt Law, which was intended as a shield to protect bona fide farmers, to avoid its fair share of ad valorem taxes, thereby forcing the other taxpayers of the county to subsidize its speculative investment. Upon rehearing, I would quash the decision of the district court and reverse the trial court.

ENGLAND, C. J., and SUNDBERG, J., concur.


author: PER CURIAM.

text:
    Harmon W. SHIELDS, Appellant-Petitioner, v. RETIREMENT COMMISSION OF DEPARTMENT OF ADMINISTRATION, Appellee-Respondent.
    Nos. 53347, 53330.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Rehearing Denied April 10, 1979.

      Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant-petitioner.
    Stephen S. Mathues and Arthur R. Shell, Jr., Tallahassee, for appellee-respondent.
   PER CURIAM.

After hearing argument in these consolidated cases, we find that no conflict exists between decisions as required for conflict certiorari jurisdiction under Article V, Section 3(b)(3), Florida Constitution, and that the First District Court of Appeal did not inherently pass upon the constitutionality of Section 121.021(15), Florida Statutes.

Accordingly, the writ of certiorari is discharged, and the appeal is dismissed.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS and BOYD, JJ., dissent.


author: ALDERMAN, Justice.

text:
    STATE of Florida, Petitioner, v. Jack L. MITCHELL, Respondent.
    No. 54244.
    Supreme Court of Florida.
    Feb. 8, 1979.
    Rehearing Denied April 10, 1979.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Jack 0. Johnson, Public Defender, and Karal A. B. Rushing, Asst. Public Defender, Tampa, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, Second District, in Mitchell v. State, 358 So.2d 238 (Fla. 2d DCA 1978), which directly conflicts with our recent decision in State v. Sobel, 363 So.2d 324 (Fla.1978), decided after the district court’s decision in this cause was rendered. The district court relied on the decision of the Third District Court of Appeal in Sobel v. State, 349 So.2d 747 (Fla. 3d DCA 1977), and stated that the facts in Sobel were almost identical to those in this case. In State v. Sobel, supra, we quashed the decision of the District Court of Appeal. On the authority of State v. Sobel, we quash the decision of the Second District Court of Appeal and remand for further proceedings consistent herewith.

It is so ordered.

ENGLAND, C. J., and ADKINS and SUNDBERG, JJ., concur.

HATCHETT, J., dissents.


author: OVERTON, Justice. BOYD, Justice,

text:
    Herman CORN, Felix Granados, and Hollybrook Condominium Ventures, Inc., Petitioners, v. DEPARTMENT OF LEGAL AFFAIRS, the Governor, and Cabinet of the State of Florida, Respondents.
    No. 53973.
    Supreme Court of Florida.
    Feb. 22, 1979.

      Cynthia S. Tunnicliff, of Spector & Tun-nicliff, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen. and Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, for respondents.
   OVERTON, Justice.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ, received briefs on the merits, and heard argument of the parties. For the reasons expressed, we have determined that the order of the First District Court of Appeal granting a motion to dismiss presents no conflict with Bert Rodgers Schools of Real Estate v. Florida Real Estate Commission, 339 So.2d 226 (Fla. 4th DCA 1976).

The District Court, in granting the motion, held that “the action appealed is not final agency action, nor is it intermediate action cognizable under Section 120.68(1), Florida Statutes (Supp.1976).”

In Bert Rodgers, supra, the District Court found the agency’s denial of an evidentiary hearing in accordance with Section 120.57, Florida Statutes (1977), to be improper under the peculiar facts of that case. The District Court noted that the agency did not exercise the discretionary authority granted it by Section 120.54(16), Florida Statutes (1977). The court expressly held the agency failed to “make an express determination as to whether the input hearing was adequate to protect the interests asserted.” The District Court further expressed the view that should the agency’s flat denial of a hearing be deemed an exercise of discretion, it was an abuse of discretion under the facts which reflected the total failure by the agency to refute in any manner the allegations that the affected party would be harmed unless an evidentiary hearing was held. The agency in Bert Rodgers, supra, clearly did not rule on the adequacy of an input hearing and the need for a Section 120.57 evi-dentiary hearing.

The petitioner contends that the grant of review in Bert Rodgers, supra, conflicts with the denial of review in this case. We disagree. In the instant case the agency formally responded to the petitioner’s allegations that a Section 120.57 hearing was necessary to protect its interests. The petitioner had an opportunity to fully argue that issue before the agency. After hearing the arguments, the agency exercised its discretion, determining that no evidentiary hearing was required. We further note that no administrative rules have as yet been adopted by the administrative agency in this matter.

The effect of the petitioner’s contention is that the Bert Rodgers, supra, decision requires a Section 120.57 evidentiary hearing whenever allegations are made that the input hearing will be inadequate. We reject that contention. The District Court in granting the motion to dismiss in the instant case determined (1) that there was no final agency action, and (2) that the discretionary denial of the evidentiary hearing was a preliminary procedural action that did not require immediate review, it appearing to the District Court that the review of the final agency action would be adequate and sufficient for the' parties.

We hold that the District Court properly carried out its responsibilities in this case in accordance with the intent of the Administrative Procedure Act. There is no conflict with Bert Rodgers, supra. The controlling facts of the cases are dissimilar. Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). The petition for writ of certiorari is discharged.

It is so ordered.

ENGLAND, C. J., and ADKINS and SUNDBERG, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

In Bert Rodgers Schools of Real Estate v. Florida Real Estate Commission, 339 So.2d 226 (Fla. 4th DCA 1976), the petitioner sought review of the decision of a state agency denying the petitioner the benefit of an evidentiary hearing under section 120.57, Florida Statutes (1975). The district court of appeal there granted certiorari review of the agency action. In the instant case, judicial review of precisely the same kind of agency action was denied on the ground that it was neither “final agency action” nor reviewable intermediate action. Thus there is conflict of decisions between two of our district courts of appeal, giving us jurisdiction to review the decision below under article V, section 3(b)(3) of the Florida Constitution. We should exercise our jurisdiction and resolve the conflict.

      . The name of the petitioner was misspelled in the official report of this case. Bert Rogers Schools of Real Estate v. Florida Real Estate Commission, 339 So.2d 226 (Fla. 4th DCA 1976).


author: ENGLAND, Chief Justice,

text:
    Willie MANSFIELD and Tommie Harris, Petitioners, v. STATE of Florida, Respondent.
    No. 55761.
    Supreme Court of Florida.
    Feb. 27, 1979.
    Paul Morris, Asst. Public Defender, Miami, for petitioners.
    Paul Mendelson, Asst. Atty. Gen., Florida Regional Service Center, Miami, for respondent.
   Petitioners’ Motion for Leave to File for Belated Certiorari Relief is hereby granted as to Petitioner WILLIE MANSFIELD and denied as to Petitioner TOMMIE HARRIS.

Petitioner WILLIE MANSFIELD is allowed to and including March 9, 1979, in which to file his brief on jurisdiction; Respondent is allowed to and including March 29, 1979, in which to file its brief on jurisdiction; and Petitioner WILLIE MANSFIELD is allowed to and including April 9, 1979, in which to file his reply brief on jurisdiction.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur.

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

SUNDBERG and ALDERMAN, JJ., dissent.

ENGLAND, Chief Justice,

dissenting.

By accepting a belated petition for certio-rari in this case, the Court has, I believe, put one more nail in the coffin of our formerly “jurisdictional” thirty-day requirement for instituting discretionary review of final appellate action taken by Florida’s courts in criminal cases.

In Pressley v. Wainwright, 367 So.2d 222 (Fla.1979), this Court accepted an untimely certiorari petition in the face of a directive from the United States Fifth Circuit Court of Appeals that we grant Pressley belated review, give him a new trial, or accept as a consequence of doing neither that he would be released by the federal court from the balance of his state-imposed criminal sentence. The basis for the federal court’s directive was a denial of due process, grounded on the ineffective assistance of counsel.

I dissented from the Pressley decision, expressing the hope that it would at least be limited by our Court to factual circumstances as narrow as those involved in Pressley’s situation — a failure of court-appointed counsel to file a timely request for certiorari review in the Florida Supreme Court after having assured his aggrieved client that a proper request would be made. Regrettably, it now appears that a limited application of Pressley has been rejected both by federal district court judges and by my colleagues.

Willie Mansfield was convicted in the Florida courts of trespass and grand larceny, and both of his convictions were duly affirmed on direct appeal. His court-appointed counsel, the office of the public defender for the Eleventh Judicial Circuit of Florida, then sought discretionary review in the Florida Supreme Court by posting a petition for certiorari in the United States mail two days before the expiration of the thirty-day filing period prescribed by the Florida appellate rules. The petition arrived at the Court too late, and consequently the certiorari request was dismissed as being untimely filed.

Habeas corpus relief was sought in the United States District Court for the Southern District of Florida, and in due course the federal district court judge adopted a federal magistrate’s recommendation to grant the relief requested. He directed that this Court either accept the belated application for certiorari or grant a new trial within 120 days of his order, or else “the Great Writ shall issue.” My colleagues have chosen to grant the belated application; I would not.

I simply do not accept the district court’s conclusion that counsel’s judgmental error in choosing the United States postal service as his agent for the performance of a jurisdictional state filing requirement constitutes ineffective assistance of counsel so as to deny Mansfield due process of law. We cannot control the federal courts’ responses to the pleas of untimely applicants here, but we certainly can, and in my opinion should, preserve the integrity of our established rules and precedents in the absence of a federal or state constitutional right to counsel in third-level, discretionary review cases. See Pressley v. Wainwright, 367 So.2d 222 (Fla.1979) (England, C. J., dissenting).

      . Pressley v. Wainwright, 540 F.2d 818 (5th Cir. 1976), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977). Pressley’s conviction had been affirmed by a Florida appellate court on direct appeal. Pressley v. State, 261 So.2d 522 (Fla. 3d DCA 1972).

      . Apparently, the same federal district court has conferred comparable relief in another case involving facts similar to those presented here. Moore v. Wainwright, No. 77-660 CIV-JLK (S.D.Fla. March 11, 1977).

      . Mansfield v. State, 338 So.2d 857 (Fla. 3d DCA 1976).

      . Fla.App.R. 4.5(c)(6). This 30-day limitation is now embodied in rule 9.120(b) of the Florida Rules o.f Appellate Procedure.

      . Mansfield v. State, 342 So.2d 1102 (Fla.1977). A reinstatement request was summarily denied.


text:
    Mary SLONE, Appellant, v. STATE of Florida, Appellee.
    No. 52768.
    Supreme Court of Florida.
    March 1, 1979.
    James D. Eckert, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Affirmed. State v. Rodriquez, 365 So.2d 157 (Fla.1978).

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

SUNDBERG, J., dissents.


text:
    Ronald C. BRUNS, Appellant, v. COUNTY WATER-SEWER DISTRICT, Appellee.
    No. 54381.
    Supreme Court of Florida.
    March 1, 1979.
    Ronald C. Bruns, in pro. per.
    Donald A. Pickworth, Collier County Atty., Naples, for appellee.
   PER CURIAM.

The appellant’s contentions are without merit. The final judgment of May 15,1978 validating bonds is affirmed.

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


author: MILLS, Judge. BOYER, J.,

text:
    James Lewis REYNOLDS, Appellant, v. STATE of Florida, Appellee.
    No. GG-128.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1978.
    Rehearing Denied March 14, 1978.
    Michael J. Minerva, Public Defender, Margaret Good and Edward L. Harvey, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Reynolds of burglary of a conveyance. He appeals contending the trial court erred in denying his motion for judgment of acquittal because the circumstantial evidence adduced by the State failed to identify him as the burglar and contending that fundamental error was committed when the State elicited testimony from a witness that after Reynolds was given his Miranda rights he made no statement. We do not agree and affirm.

The victim’s car was thoroughly washed a day and a half before the crime was committed. All of the parts subsequently found removed were intact at that time. A fingerprint of Reynolds and an unidentified fingerprint were found on a mirror which had been mounted on the driver’s side of the victim’s car but after the crime was found on the floor of the car. A radio, a rearview mirror and a set of wires were missing from the inside of the car. Reynolds was found working on a car that the stolen parts would have fit.

“. . . Fingerprint evidence must meet the requirement that the circumstances must be such that the print could only have been made at the time of the crime. . . . ”

Knight v. State, 294 So.2d 387 (Fla. 4th DCA 1974).

The car was washed a day and a half before the crime was committed. All fingerprints on the car before the washing would have been obliterated at that time. Therefore, it is reasonable to infer that the fingerprint of Reynolds was placed on the mirror at the time of the crime.

“When circumstantial evidence is relied upon for a conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else committed the offense.

Wilkerson v. State, 232 So.2d 217 (Fla. 2d DCA 1970).

Reynolds’ fingerprint, together with the other evidence presented by the State established a prima facie case against him and rebutted a reasonable hypothesis of innocence.

“. . . [T]he court should never direct a verdict [grant a motion for judgment of acquittal] for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail, and not primarily the views of the judge. . . ”

Holland v. State, 129 Fla. 363, 176 So. 169 (1937).

The verdict of the jury was supported by substantial competent evidence and the mo-tion for judgment of acquittal was properly denied.

The State elicited testimony from a police officer that at the time of Reynolds’ arrest he was advised of his constitutional rights and made no statement. There was no objection by Reynolds. He now contends this was fundamental error.

In Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976), it is stated:

“Admitting the influence of some of the practical ramifications, we have concluded that the interests of justice would not be served by the adoption of an absolute rule that in every instance there is no need to object to references to an accused’s exercise of his right to remain silent in order to preserve the error. On the other hand, we do not hold that an objection is always necessary to preserve the point. Some references may be so prejudicial to the right of a defendant to a fair trial that the error must be deemed to fall within the ambit of that elusive term “fundamental”. As in many other areas of the law, the decision should be made on a case by case basis. The polestar must always be whether the defendant has been afforded a fair trial. “Applying these principles to the instant case, we believe that the admission of the tainted evidence does not rise to the magnitude of fundamental error.”

Although the phrasing of the question was improvident, the interrogation was not designed to impair Reynolds’ rights. No further remark was made concerning the officer’s testimony and the record fails to show that the State intended to prejudice Reynolds. Under these circumstances, reversal is not warranted because fundamental error was not committed.

The judgment is affirmed.

McCORD, C. J., concurs.

BOYER, J., concurs specially.

BOYER, J.,

concurring specially.

I concur in affirmance.


author: ERVIN, Judge.

text:
    Raymond L. BROWN, Appellant, v. AMERICAN MOTORISTS INSURANCE COMPANY, an Illinois Corporation, and George Ward, Sr., Appellees.
    No. II-218.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.

      Anthony I. Provitola, Deland, for appellant.
    Frank Marriott, Jr., of Gosney, Cameron & Parsons, Daytona Beach, for appellees.
   ERVIN, Judge.

Brown appeals a judgment entered in favor of appellees following jury trial in a personal injury action absolving appellees from liability. Brown, while walking beside a road with the traffic flow, was struck in the head by a mirror which extended a few inches beyond the side of a 12-foot wide mobile home towed by a truck-tractor owned by appellee Ward. Brown argues the verdict was contrary to the manifest weight of the evidence, and that the trial court should have directed a verdict on the issues of negligence and allowed the case to go to the jury on the defense of comparative negligence and damages only.

The driver of the truck-tractor testified he saw Brown and a companion walking along the east edge of the pavement of the road for some distance, and at approximately 100 yards from them he sounded his horn; that both boys responded by turning and looking at him, but continued walking in the same direction. At the time he sounded his horn he was traveling at 35 — 10 miles per hour, but shortly afterward decreased his speed. He testified he could have stopped his vehicle in time to have avoided the accident from the distance of 100 yards. The evidence revealed that the roadway was a narrow two lane highway, and parallel to the east side of the roadway was a canal with no shoulder. The canal was separated from the road by a grassy strip varying in width from three to four feet. Moreover there was no sidewalk on that portion of the roadway which the boys were proceeding.

We conclude from our review of the record that there was no error in the trial court’s refusal to grant plaintiff’s motion for directed verdict on the issue of liability. Appellant relies upon White v. Hughes, 139 Fla. 54, 190 So. 446 (Fla.1939), where the Supreme Court reversed a judgment for a defendant in a personal injury action and concluded from the facts the jury’s verdict was contrary to the manifest weight of the evidence. There the defendant was driving an automobile on a beach in a northerly direction at a speed of 15-20 miles per hour. When he was approximately 50 or' 75 feet south of the plaintiff, defendant observed a car on the beach ahead of him take a wide swing, causing him to turn his car to the right toward the ocean. When he saw the plaintiff he turned farther to the right and, thinking he was going to miss him, failed to apply his brakes, causing his vehicle to strike the plaintiff. The facts in White revealed there was no obstruction, in the vicinity which kept the defendant from seeing the plaintiff or from avoiding him. The facts here were different in that the options available to the driver were limited since the evidence showed that the operator was driving down a narrow congested road with opposing traffic on one side and a canal on the other. We find no error as to that point.

Appellant additionally urges that the verdict of the jury was contrary to the manifest weight of the evidence in its finding of no liability on the part of the insurer of appellant’s father, American Motorists Insurance Company, since it determined that appellant did not have the benefit of uninsured motorists coverage. On December 30, 1974, prior to the occurrence of the accident on May 5, 1975, appellant’s father asked his wife to go to an insurance agency and purchase insurance for their automobile. Upon filling out the application form, she testified the form was completely filled out with “x’s” in the places for her to sign. She stated that she was not given any explanation of the portion of the form relating to uninsured motorists coverage. She did not read the application before she signed it but assumed it was for the same coverage which she and her husband had previously been provided. She stated she told the person to whom she spoke at the agency that she wanted full coverage for everything, although she did not specifically state she wanted uninsured motorists coverage. A policy of insurance was issued for the period December 30, 1974 to December 30, 1975. The father reviewed it and testified, upon discovering there was no provision for such coverage, he began placing calls in March and early April, 1975, and was assured by the agency that coverage : would be provided. On May 27, 1975, 22 days following the accident, an amendment to the insurance policy issued providing uninsured motorists coverage.

Appellant relies upon Weathers v. Mission Insurance Company, 258 So.2d 277 (Fla. 3d DCA 1972); Wilson v. National Indemnity Company, 302 So.2d 141 (Fla. 1st DCA 1974), and Protective National Ins. Co. of Omaha v. McCall, 310 So.2d 324 (Fla. 3d DCA 1975) for the position that since uninsured motorists coverage is required by law and must be affirmatively rejected, Section 627.727(1), Florida Statutes (1977), any such waiver must be knowingly made. He additionally contends that the court’s instruction to the jury that the father ratified the actions of the mother was error since it had no foundation in the evidence.

There are several distinctions in the cases relied upon by appellant. First, Wilson v. National Indemnity Company, supra, reversed a summary final judgment entered in favor of the insurer. There the cause was reversed and remanded for further proceedings in the trial court. Here the evidence surrounding the insured’s rejection went to a jury. Additionally, the evidence relating to the endorsement, extending uninsured motorists coverage to the policy, reflected that an employee of the insurance agency testified that the ordinary business custom which was followed when a customer requested a modification in his coverage was for the employee to pull the file and to make the necessary entries on the form while the customer was still on the phone. Normally the change copies were mailed to the carrier and the customer on the same date the request was made, and the handwritten date on the form was customarily the date the insured had requested the information. The change form contained the date of May 27, 1975, or a date approximately three weeks after the accident. The jury heard the testimony of the parties and decided the witnesses’ credibility in favor of the insurer. We find the evidence supports the verdict. Accordingly the judgment is

AFFIRMED.

MILLS, Acting C. J., and BOOTH, J., concur.


author: SMITH, Judge.

text:
    William J. MARTIN and Betty Jean Martin, his wife, for the use and benefit of the Hartford Accident & Indemnity Company, a corporation, Appellants, v. Barbara Ann BELL, Concord General Mutual Insurance Company, Ellen Gayle Christian & Insurance Company of North America, a corporation, Appellees.
    No. HH-360.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1978.
    Frederick B. Tygart of Tygart & Tygart, P. A., Jacksonville, for appellants.
    Raymond E. Watson of Webb, Swain & Watson, P. A., Jacksonville, for appellees Bell and Concord, and Robert L. Cowles of Cowles, Coker & Myers, P. A., Jacksonville, for appellees Christian and INA.
   SUBSTITUTED OPINION ON PETITION FOR REHEARING

SMITH, Judge.

The Martins and their subrogated homeowners’ insurer appeal from a partial summary judgment finding that appellees Bell and Christian are not liable for personal property damage resulting from a kitchen fire in the Martins’ home, and that appel-lees Concord and INA, liability insurers of Bell and Christian, are not responsible under their policies for any of the Martins’ damages. By my opinion filed August 30, 1978, the court affirmed the trial court in all respects. Judge Boyer dissented from the court’s decision absolving Concord and INA, and filed an opinion in support of his view that the Concord and INA liability policies are ambiguous in their coverage provisions and are susceptible of an interpretation that affords liability coverage to Bell and Christian for their asserted negligence in the incident giving rise to the Martins’ loss. The Martins’ petition for rehearing demonstrated errors in my reasoning to deny coverage. Upon reconsideration of the issue, we conclude that the policies’ purpose as interpreted by the insurers is impenetrably obscure, that the policies permit an interpretation which extends coverage, and that the exclusions are inoperable to exonerate Concord and INA of potential liability for the consequences of their insureds’ asserted negligence. We therefore withdraw the majority and dissenting opinions filed August 30, 1978, and substitute this opinion. We reverse the trial court’s summary judgment for Concord and INA, although we affirm the partial summary judgment for Bell and Christian on the issue of their asserted gross negligence.

The Martins asked Bell and Christian to occupy their home during the Martins’ vacation. The Martins did not pay the housesitters but left a few dollars for groceries. The house and contents were badly damaged by fire when appellee Christian left a pan of grease unattended on a range burner. The trial court correctly found that the arrangement was a gratuitous bailment and that Bell and Christian, not having been grossly negligent, are not liable for damage to the Martins’ personal property. See Armored Car Service, Inc. v. First Nat’l Bank of Miami, 114 So.2d 431 (Fla.3d DCA 1959).

Because the trial court has not acted on the Martins’ claim against Bell and Christian on account of damage to the Martins’ house, as distinguished from their personal property, we have no occasion to pass on the potential liability of Bell and Christian to the Martins on account of damage to the house. We are concerned only with the trial court’s decision that relieves Concord and INA of any coverage liability whatsoever to the Martins, and in effect discharges those defendants.

The Concord policy insuring Bell’s liability and the INA policy insuring Christian’s liability are in pertinent respects identical. The Concord policy provides in part:

I. COVERAGES
A. Coverage E, Personal Liability. This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. .
D. Supplementary Coverages.
3. Property in Control of the Insured: Such insurance as is afforded under Coverage E, Personal Liability, applies to property damage to any insured premises [including any residential premises not owned by the insured, but where the insured is temporarily residing] and to house furnishings therein if such property damage arises out of fire, explosion, or smoke or smudge caused by sudden, unusual and faulty operation of any heating or cooking unit. Exclusion B.4 does not apply to this Supplementary Coverage, (emphasis added).
II. EXCLUSIONS
B. Under Coverage E, Personal Liability: This policy does not apply:
3. To property damage to property owned by the Insured;
4. To property damage to property occupied or used by the Insured or rented to or in the care, custody or control of the Insured or as to which the Insured is for any purpose exercising physical control

The insuring clauses thus generally insure Bell and Christian against liability for property damage. That would seem to secure Concord’s and INA’s liability to the Martins on account of any liability of Bell and Christian for damage to the Martins’ house. But no. For exclusion B.4 dissolves the coverage for liability on account of damage to property occupied by the insureds. That would seem to excuse Concord and INA. But no. For exclusion B.4 does not apply if Bell’s and Christian’s legal liability for damage to the Martins’ house, an insured premises because Bell and Christian temporarily resided there, “arises out of fire, explosion, or smoke or smudge caused by sudden, unusual and faulty operation of any heating or cooking unit.” Plainly, any liability of Bell and Christian does not result from damage caused by “sudden, unusual and faulty operation of any heating or cooking unit.” The range burner ignited the grease as a result of its wholly predictable and usual operation as designed.

Is the case governed by the insuring clause, or by the exclusion, or by the exception to the exclusion found in supplementary coverage D.3? If coverage D.3 applies, the seemingly critical question is whether the insureds’ liability coverage for fire damage to a nonowned, temporary residence is dependent on a showing that the fire resulted from “sudden, unusual and faulty operation” of a heating or cooking unit. Grammatically, the phrase “caused by sudden, unusual and faulty operation of any heating or cooking unit” can be read as modifying all the preceding nouns, including “fire,” or as modifying only “smoke or smudge.” Given two equally acceptable constructions of the policy, one extending coverage and the other removing it, we construe the policy against the insurer and hold that coverage exists. E. g., Fireman’s Fund Ins. Co. v. Boyd, 45 So.2d 499 (Fla.1950). Moreover, it would be a comfortless policy of liability insurance that took pains to define a temporary nonowned residence as insured premises, purported to protect the insureds from liability on account of negligence there, but insisted that any such negligence resulting in fire be traceable to the “sudden, unusual and faulty operation” of a range or furnace concerning which the temporary residents have little opportunity to be negligent. Whatever may be the benefit to a temporary resident in buying insurance against liability for damage caused by smoke or smudge from a range or furnace in “sudden, unusual and faulty operation,” we can say at least that no such causative nexus is required for fire damage coverage under these policies. As a matter of law, Concord and INA are responsible to the extent of their policy coverages for any liability of appellees Bell and Christian that may be established.

The summary judgment is AFFIRMED in part, REVERSED in part, and the case is REMANDED.

BOYER, Acting C. J., and BOOTH, J., concur.


author: SCHEB, Judge.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. Rosalie RICHENDOLLAR, Administratrix of the Estate of Frank Richendollar, Deceased, Appellee.
    No. 78-1447.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Rehearing Denied March 13, 1979.
    Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellant.
    George W. Thomas, Jr., Sarasota, for ap-pellee.
   SCHEB, Judge.

The question we now address is whether a corporate stockholder/officer is entitled to “stack” the uninsured motorist coverage under the corporation’s automobile insurance policy.

Frank Richendollar was vice president and a major stockholder of Bellaire Construction Company. While driving one of Bellaire’s four motor vehicles Richendollar was killed in a collision with a car driven by an uninsured motorist.

All of Bellaire’s vehicles were insured under a comprehensive automobile insurance policy issued on January 14, 1975, by appellant Hartford Accident and Indemnity Company. The trial court held that Richen-dollar’s estate was entitled to aggregate or “stack” the uninsured motorist coverage provided by the Hartford policy. Under the court’s order the Richendollar estate would have been permitted to multiply its $15,000 uninsured motorist protection by its four insured vehicles and thereby have $60,000 coverage. On authority of Travelers Insurance Co. v. Pac, 337 So.2d 397 (Fla. 2d DCA 1976), cert. denied, 351 So.2d 407 (Fla.1977) we reverse.

The concept of aggregating or “stacking” uninsured motorist coverage was first approved in Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973). Stacking is derived from the presumption that where the named insured purchases uninsured motorist coverage on more than one automobile, he intends to buy the extra protection for himself and his family, regardless of whether the injury occurs in any one of his insured vehicles or elsewhere. In Travelers Insurance Co. v. Pac, supra, we refused to extend this concept to the situation where a corporate employee is injured by an uninsured motorist while operating his employer’s vehicle. See also GEICO v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977). In Tucker v. GEICO the supreme court predicated its holding on the familial relationship between the named insured and the injured person. We held in Travelers Insurance Co. v. Pac that the Tucker rationale does not require that an employee be allowed to stack his employer’s coverage, because in such an instance the familial relationship is absent.

Appellee seeks to sustain the trial court’s view by pointing out that the late Mr. Richendollar, because of his corporate position, was more directly identified with the Bellaire Construction Company than the ordinary employee. Despite the closer identity of Richendollar to the named insured, i. e., the corporation, we cannot find that this presents a significant reason to distinguish this case from the rationale of Travelers Insurance Co. v. Pac.

Accordingly, we reverse the order appealed and remand for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . The reader should note that § 627.4132, Fla. Stat. (1977), which became effective October 1, 1976, provides:
      If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

        Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978), holds that § 627.4132 is not applicable to insurance policies issued prior to the effective date of this section.


text:
    In re the Marriage of John W. ELLIS, Appellant, v. Merle W. ELLIS, Appellee.
    No. KK-182.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1979.
    S. Gordon Blalock of Blalock, Holbrook & Akel, P. A., Jacksonville, for appellant.
    Charles Thomas Shad of Penland, McCra-nie & Shad, P. A., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Wife’s motion for attorney’s fees is granted and the trial court is authorized to determine a proper award in accordance with Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

McCORD, C. J., and MELVIN and BOOTH, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    HASCO DEVELOPMENT CORP., Appellant, v. DOBY SALES CORPORATION, d/b/a Doby Brick and Supply, Larry Wilson, d/b/a Wilson & Sons, Appellees.
    No. 77-2569.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Rehearing Denied March 20, 1979.
    Stephen A. Rapp of Gunster, Yoakley, Criser, Stewart & Hersey, P. A., Palm Beach, for appellant.
    Richard S. Thayer of Richard S. Thayer, P. A. and Stanley W. Cheff, Boca Raton, for appellees.
   PER CURIAM.

AFFIRMED.

DAUKSCH and MOORE, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

This is a garnishment case involving a contest between the appellee-debtor’s judgment creditor and the appellant-contractor with whom the debtor had sub-contracted to do plastering work. Although the appellant-contractor had funds on hand due to the debtor when served with the writ of garnishment, it later claimed that it might be liable to other persons who had supplied the debtor. In rejecting this claim by appellant it is implicit in the trial court’s holding that no superior claims to the funds held by appellant were presented and proven, either by the appellant or the alleged suppliers of the debtor. Here, relying upon Eger Block & Redi-Mix Co. v. Wheeler, 207 So.2d 698 (Fla.2d DCA 1968), the appellant claims it had no burden to prove that it was legally obligated to pay the suppliers since the failure to pay them would result in damage to the appellant’s “reputation and credit rating” and hinder appellant in securing suppliers for future projects. First, I think appellant is incorrect in interpreting Eger Block as allowing a garnishee to withhold funds to pay suppliers to whom the garnishee has no legal liability. Secondly, I think the appellant is wrong in claiming that it had no burden to prove such legal liabilities and that the judgment creditor should have had the burden to prove such claims were not valid. The garnishment statutes adequately provide for resolution of such disputes, including allowing third parties to make claims to the funds garnished. No third parties acted here, and I think the trial court was correct in its conclusion that the judgment creditor had demonstrated a superior legal claim to the funds held by the appellant.


text:
    Gregg LINDSAY, Appellant, v. The TRAVELERS INDEMNITY COMPANY, a foreign insurance carrier, licensed to operate in Florida, Appellee.
    No. 77-1902.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 4, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Joe Garrett, Miami, for appellant.
    Adams & Ward and Amy Shield Levine, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The provision of the judgment determining the amount of equitable distribution is affirmed. The provision in the judgment denying attorneys’ fee to the plaintiff in the trial court is reversed, on authority of Rodriguez v. Travelers Insurance Company, 367 So.2d 687 (Fla. 3d DCA 1979). Following remand, further proceedings should be had for fixing and allowing such attorneys’ fee.

Affirmed in part, and reversed in part and remanded.


text:
    Orlando HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2158.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 5, 1979.
    Orlando Hernandez; in pro. per.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Petitioner, Orlando Hernandez, appeals the summary denial of his motion to vacate judgment and sentence pursuant to Fla.R. Cr.P. 3.850. We reverse.

For the second ground in his motion to vacate, Hernandez alleged that the prosecutor knowingly used the perjured testimony of the victim and the investigating police officers with respect to material matters.

The law is well established that the willful use of false testimony upon material matters from prosecution witnesses by the prosecutor known by the latter to be perjured testimony is a recognized ground for relief from judgment. Bogan v. State, 211 So.2d 74, 77 (Fla. 2d DCA 1968).

After a review of Hernandez’s motion for relief from judgment on the above ground and the documentary evidence in support thereof (i. e. the transcripts of testimony of his trial and the separate trial of his co-defendants made available to this court), we conclude that Hernandez has made a prima facie showing for relief and is entitled to a full evidentiary hearing thereon. Nevertheless, this determination is in no way to be construed as passing upon the merits with respect thereto.

We find no error in the summary denial of the instant motion to vacate on the first ground alleged.

Accordingly, the cause is remanded to the trial court to hold an evidentiary hearing on the motion concerning the allegations of the use of perjured testimony. See Fla.R. App.P. 9.140(g) and Bogan v. State, supra.

Affirmed in part and reversed in part.


author: KEHOE, Judge. SCHWARTZ, Judge

text:
    Thomas D. MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-246.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 4, 1979.
    Papy, DuVal, Poole & Usich and Harvie S. DuVal, Coral Gables, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt and Susan Minor, Asst. Attys. Gen., for appellee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence for manslaughter by unnecessary killing to prevent an unlawful act. We reverse.

On March 7, 1977, an information was filed charging appellant, an Opa-Locka police officer, with committing the offenses of (1) manslaughter (in violation of Section 782.07, Florida Statutes) and (2) manslaughter by unnecessary killing to prevent an unlawful act (in violation of Section 782.11, Florida Statutes). After a jury trial, appellant was acquitted of the charge of manslaughter under Section 782.07, but was found guilty of manslaughter under Section 782.11. From the ensuing judgment of conviction and sentence, appellant brings this appeal.

Among his points on appeal, appellant contends that there was insufficient proof to sustain the charge of manslaughter by unnecessary killing to prevent an unlawful act in violation of Section 782.11, Florida Statutes. This Section reads in pertinent part as follows:

“Unnecessary killing to prevent unlawful act.
“Whoever shall unnecessarily kill another, while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in F.S. 775.082, 775.083, or 775.084.”

It is apparent from this Section that one of the essential elements of proof to be shown by the prosecution, appellee herein, is that the deceased victim was unnecessarily killed while he (the victim) was attempting to commit any felony or do any other unlawful act. In the instant case, the record is totally devoid of any evidence by which the jury could have determined what specific felony or unlawful act the victim was attempting to commit when he was shot by appellant. Absent any proof of this essential element, appellant could not be properly convicted under Section 782.11. We note that, although appellant might have been subject to a murder charge, he was charged with manslaughter under Section 782.07, for which he was acquitted.

In the light of this determination, it is unnecessary for us to reach appellant’s other point on appeal which contended that the trial court erred in failing to instruct the jury on all of the essential elements required to sustain a manslaughter conviction under Section 782.11. Assuming, for the sake of our discussion above, that the jury was properly charged on all of the essential elements, the record shows that the evidence at trial did not support the charge.

For the reasons set forth above, the judgment of conviction and sentence appealed are reversed and the cause is remanded to the trial court with directions to discharge appellant.

Reversed and remanded with directions.

SCHWARTZ, Judge

(specially concurring)

While I agree that the appellant should be discharged, my conclusion to that effect is based upon a somewhat different ground than the one assigned in Judge Kehoe’s opinion.

In my view, Section 782.11, Florida Statutes (1975) does not apply, as a matter of law, to a case, such as this one, in which the state contends that the defendant employed excessive force in effecting an arrest and the defense is that the force used was not excessive and that the killing was therefore justifiable homicide. These issues are properly framed and determined, as they were in this very case, only through a charge that the defendant violated the “standard” manslaughter statute, Section 782.07, Florida Statutes (1975). That provision defines manslaughter as

“The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification . in cases in which such killing shall not be excusable homicide or murder . ” [emphasis supplied]

The jury was so instructed in this case. It was also told, in accordance with the standard jury instruction on the subject, that

“The killing of a human being is justifiable homicide and lawful . . . ”
******
“2. When committed by a law enforcement officer (or any person summoned or directed to assist him) in the use of such force as he reasonably believes is necessary to prevent death or great bodily harm to himself or another or when he reasonably believes both that (a) the force used is necessary to prevent a lawful arrest from being defeated by resistance or escape and (b) the person to be arrested has committed or attempted to commit a felony, is attempting to escape by use of a weapon, or otherwise indicates that, unless arrested without delay, he will endanger human life or inflict great bodily harm.”

The jury resolved the issues presented by these instructions by finding Mitchell not guilty of the violation of Section 782.07 with which he was charged.

In State v. Carrizales, 356 So.2d 274 (Fla.1978), the supreme court held that Section 782.11, Florida Statutes (1975) does not apply when the “unlawful act” allegedly committed by the decedent was the use of force directed against the defendant, who claims that the killing was justifiable as in lawful self-defense. This holding is directly applicable to the situation involved in this case, in which, as in Carrizales, the only allegedly “unlawful acts” of the victim were those which gave rise to the defendant’s use of force, in attempting to effect the victim’s arrest.

The purpose of Section 782.11, Florida Statutes (1975) is to reduce the charge, and therefore the penalty, when a killing which might otherwise constitute first or second degree murder is committed in resisting an attempt to commit an “independent” unlawful act, which does not involve force directed against the defendant. E. g., Whitehead v. State, 245 So.2d 94 (Fla. 2d DCA 1971). It is appropriately applied, for example, if a person with premeditation unnecessarily kills someone attempting to break into his home. It does not apply, however, to cases like Carrizales and this one, in which the issue is whether the defendant has employed justifiable force, and was therefore guilty of no crime at all, in countering the “unlawful acts” of the victim.


text:
    Julio C. BERRIEL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-398.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 5, 1979.
    Brian R. McComb, Miami, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Walker v. State, 196 So.2d 8 (Fla. 3d DCA 1967); 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); Winchell v. State, 362 So.2d 992, 995 (Fla. 3d DCA 1978).


author: SCHWARTZ, Judge.

text:
    Tobie WILSON, Appellant, v. FLORIDA PROCESSING COMPANY, a Florida Corporation, Appellee.
    No. 78-1063.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 4, 1979.

      Stephen Lubow, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Linda Loomis Shelley, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Tobie Wilson, who was the plaintiff in a personal injury action below, seeks review of a judgment for the defendant entered pursuant to a directed verdict granted at the conclusion of all the evidence in a jury trial. We affirm.

At the time of the incident involved in this case, Wilson was the chief of police of the Town of Medley, Florida. He alleged that the defendant-appellee, Florida Processing Company, had negligently maintained its plant, which was located outside the Medley town limits, so as to cause a cloud of dangerous chlorine gas to escape into the town itself. Wilson was injured when he inhaled quantities of the gas while attempting to evacuate residents of his town from the affected area.

The result in this case is controlled by our very recent decision in Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430 (Fla. 3d DCA 1978). In a strikingly similar factual situation, the court held that firemen and policemen who had been injured by the inhalation of chlorine gas could recover only upon a showing of wanton and willful misconduct, even though the injuries did not occur on the defendant’s premises. At 357 So.2d 432, we held:

“Once upon the premises, the fireman or policeman has a legal status of a licensee and the sole duty owed him by the owner or occupant of the premises is to refrain from wanton negligence or willful conduct and to warn him of any defect or condition known to the owner or occupant to be dangerous, if such danger is not open to ordinary observation by the licensee.
******
“Sub judice, appellants contend that because five out of the six appellants never actually entered the plant, they could not be classified as licensees. Rather, appellants, argue, appellees were strictly liable to appellants (as they would likewise be strictly liable to the general public) for the injuries sustained, by virtue of appel-lees’ negligent maintenance and handling of an inherently dangerous substance.
The issue we are faced with, then, is whether the same duty owed by the owner or occupant of premises to a policeman or fireman who is injured upon the premises while in the discharge of his professional duties likewise applies to a policeman or fireman whose injuries stem from the same discharge of professional duties but do not actually occur on the premises. We answer the question in the affirmative.” [emphasis supplied]

Since, as in Whitten, at 357 So.2d 433, we likewise find no evidence that the defendant in this case was guilty of willful or wanton misconduct as opposed to mere simple negligence, that decision plainly requires affirmance.

The plaintiff argues, however, that a jury issue was presented as to whether, at the time of the accident, he was acting “beyond the scope of his normal duties as a policeman,” and thus entitled to recovery under the “rescue doctrine” as applied in Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228, 231 (Fla. 4th DCA 1978). We do not agree. It is perfectly obvious that the evacuation of endangered citizens such as that undertaken by Wilson forms a part of precisely what policemen are hired to do and falls directly under the ordinary course of the duties of that occupation. Again, Whitten is determinative. At 357 So.2d 431, it was said:

“Upon arrival, appellants discovered a heavy chlorine gas fog enveloping the area. Upon the realization of the dangerous condition, appellants went about their primary duties, i. e. the evacuation of occupants from nearby apartments and the diverting of traffic away from the area.” [emphasis supplied]

Accord: Adair v. The Island Club, 225 So.2d 541 (Fla. 2d DCA 1969). Indeed, the plaintiff himself admitted below that this was true. His third amended complaint, upon which the case went to trial, alleged

“9. On or about July 10, 1972, the Plaintiff, while performing his duties as chief of police of the Town of Medley, was advised of the dangerous condition to which the residents of the Town of Medley had become exposed to as the result of the leaking of chlorine gas from the premises occupied by this Defendant at its place of business, and, as part of the performance of his duties, proceeded to evacuate the occupants of the surrounding area, [emphasis supplied]
10. While evacuating said occupants of the surrounding area, the Plaintiff was caused to inhale quantities of the said chlorine gas . . . ”

Even were the issue not otherwise so clear," we would not permit such an obvious appellate change of position to prevail. Roe v. Henderson, 139 Fla. 386, 190 So. 618 (1939); Brant v. Matlin, 172 So.2d 902 (Fla. 3d DCA 1965), cert. denied, 177 So.2d 480 (Fla.1965).

Affirmed.

      . Such a finding would also presumably take the plaintiff out from under the doctrine of the Whitten case, which applies to injuries which “stem from the . . . discharge of professional duties . . . ” 357 So.2d 432.

      . It is perhaps not insignificant that both the Korte and the Whitten casos wore decided while this one was on appeal.


author: PEARSON, Judge.

text:
    Thomas Turner CARLSON, Vigilant Insurance Company, Philip Bromley and Claire Bromley, his wife, Appellants, v. Richard Joseph PREIRA, Government Employees Insurance Company, Charles P. Ratcliffe and Ida T. Ratcliffe, his wife, Appellees.
    Nos. 78-1100, 78-1262 and 78-1277.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 4, 1979.

      Preddy, Kutner & Hardy and Timonthy G. Anagost, Bloom, Kipnis & Silver, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Peter W. Wild-man, Dixon, Dixon, Lane, Mitchell & Harris and George 0. Mitchell, Miami, for appel-lees.
    Before HAVERPIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The plaintiffs, Philip and Claire Bromley, have appealed a summary final judgment for defendants Richard Joseph Preira, Charles P. Ratcliffe and Ida T. Ratcliffe, his wife. Defendant, counterclaimant and cross-claimant, Thomas Turner Carlson, has appealed the same summary final judgment. Thereafter, the plaintiffs Bromley appealed an order denying their motion for rehearing. The appeals were consolidated for all appellate purposes.

The action commenced with the Brom-leys’ complaint against Carlson for negligence resulting in an automobile collision. Thereafter, the Bromleys amended their complaint to charge Preira and the Rat-cliffes and a third party, Williams, who is not a party to this appeal, as defendants. The complaint alleged that Preira, the Rat-cliffes and Williams were guilty of negligence contributing to the same accident. The Bromleys’ theory is that a collision of the Ratcliffe, Williams and Preira cars caused the Carlson car to swerve into the Bromleys’ car and that, therefore, Ratcliffe, Williams and Preira are also liable. Defendant Carlson counterclaimed against the Bromleys and cross-claimed against Rat-cliffe and Preira. Discovery proceeded as follows: interrogatories propounded by Bromleys to Carlson and answers; interrogatories propounded by Carlson to Philip Bromley and answers; interrogatories propounded by Carlson to Claire Bromley and answers; deposition of Claire Bromley; deposition of Philip Bromley. Thereafter, the trial judge granted a summary judgment to the Ratcliffes and Preira.

The theory upon which the summary judgment appears to have been granted and the basis therefor advanced in this court is that there were two separate traffic incidents. One was between the Bromleys and Carlson and the other involved Preira, the Ratcliffes and Williams, and the two were not causally connected so that Preira and Ratcliffes were not properly party defendants in the litigation between Bromley and Carlson.

The appellants Bromley and Carlson urge that the pleadings set forth a valid claim of negligence against Preira and Ratcliffe as having, by their unprovoked action, slowed or stopped on the expressway, contributing to the subsequent collision between Brom-ley and Carlson.

Our examination of the record substantiates Ratcliffe and Preira’s claim that there is an absence of evidence on this record to show a causal connection between the two traffic incidents. However, this is not a basis for summary judgment in a negligence proceeding where it is the burden of the moving party defendant to show that the claim of negligence is conclusively refuted by the facts. See Prescott v. Erwin, 133 So.2d 332 (Fla. 2d DCA 1961). The appellees did not meet this burden in the trial court. It is noted that discovery is by no means complete and that several of the parties to the claimed five-car traffic incident have not been deposed. No affidavits in support of the motions for summary judgments were submitted. Therefore, the issue of causation remains.

The summary judgment is reversed and the cause remanded with directions to proceed herewith. We do not preclude the possibility of subsequent motions for summary judgment based upon a proper record.

Reversed and remanded.


text:
    Jimmie Lee CRUMMIE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1166.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Bennett H. Brummer, Public Defender, Elliot H. Scherker, Asst. Public Defender and Robin Greene, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAYERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. Jackson v. State, 359 So.2d 1190, 1194 (Fla.1978); Williams v. State, 110 So.2d 654 (Fla.1959).