author: PER CURIAM.

text:
    In re Billy Ray CLIFT v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2275.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Rehearing Denied Sept. 30, 1977.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State,
    J. Allen Brinkley of Johnston & Johnston, Huntsville, for respondent.
   PER CURIAM.

The petition for writ of certiorari in this case was granted on “a material question of first impression” basis to review a decision and judgment of the Court of Criminal Appeals.

The issue as we conceive it to be is whether a conviction for murder in the second degree of one robbery victim and a twenty-five year sentence precludes a consecutive sentence of ten years upon a subsequent conviction for the robbery of another victim arising out of an occurrence closely related in time and occurring at the same place.

The Court of Criminal Appeals, 352 So.2d 836, states the issue in the following manner:

“The sote and only issue presented on this appeal is whether the ten year sentence for robbery should be concurrent with the prior sentence of twenty-five years for murder in the second degree. We hold that appellant is entitled to the relief sought.”

That court remanded the case and ordered the trial judge to impose the ten-year sentence for robbery to run concurrently with the first ten years of the twenty-five year sentence for murder in the second degree. Both convictions were affirmed.

We hold that Clift is not entitled to the relief sought and reverse and remand the judgment to the Court of Criminal Appeals.

We begin with the observation that whether a sentence for conviction of crime is to be consecutive or concurrent generally is a matter addressed to the sound discretion of the trial judge.

The Court of Criminal Appeals based its decision on Burress v. State, 56 Ala.App. 414, 321 So.2d 752 (1975). Burress was the companion to Clift during the commission of the crimes. Burress was also convicted of both murder and robbery for which he was sentenced to life and ten years respectively. Burress appealed both convictions and they were consolidated in the Court of Criminal Appeals. That court held that “the robbery and murder were legally discrete crimes which came from a single transaction, i. e., taking money by violence.” The court then proceeded to hold, viz.:

“The appellant pleaded double jeopardy. Here, as in Yelton v. State (1975), 56 Ala.App. 272, 321 So.2d 234, where the other conviction is not yet final we would be speculating as to whether or not punishment under the murder conviction would preclude punishment under the robbery conviction. Accordingly, we consider that the New York practice of concurrent sentences is the only pragmatic solution.
The judgment of conviction for robbery is affirmed but the cause is remanded so that the sentence of ten years imprisonment is to run concurrently for the first ten years of the life sentence for murder. If the murder conviction is set aside such action will not affect the sentence under the robbery conviction.
Murder conviction affirmed.
Robbery conviction affirmed but cause remanded for concurrent sentence.”

Id. at 419, 321 So.2d at 757 (emphasis added).

We confess we do not fully understand that part of the holding in Burress upon which the Court of Criminal Appeals relied to reverse, viz.:

“[W]e would be speculating as to whether or not punishment under the murder conviction would preclude punishment under the robbery conviction. Accordingly, we consider that the New York practice of concurrent sentences is the only pragmatic solution.”

At any rate, Burress pled double jeopardy as did Clift. It appears obvious that the Court of Criminal Appeals’ decision to grant concurrent sentences was based upon a consideration of double jeopardy.

We think our recent decision in In re Colston, 350 So.2d 337, 11 A.B.R. 1974 (Ala. 1977) and the United States Supreme Court decision in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), are dispositive of that issue. The case at bar is an even clearer one than Colston on the issue of double jeopardy.

Here, we find the robbery to be different in both law and fact from the murder; Clift’s acts clearly constituted two acts, to paraphrase the language of Mr. Justice Maddox writing for the court in Colston.

It is, of course, well established that:

“The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).
“The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
‘The applicable run is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. . . . ’
This test emphasizes the elements of the two crimes. ‘If each requires proof that the other does not, the Blockburger test would be satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . .’ Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975).
“. . . Unless ‘each statute requires proof of an additional fact which the other does not,’ Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.”

Brown v. Ohio, 432 U.S. at 165-166, 97 S.Ct. at 2225-26.

Here, it seems perfectly clear to us that there are two offenses — in law and in fact. It is clearly the case that each statute (murder and robbery) requires proof of an additional fact which the other does not — murder — death; robbery — felonious taking of money, etc., from the person of another or from his immediate presence by violence to his person or by putting him in fear.

The judgment of the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Billy Ray CLIFT v. STATE.
    8 Div. 720.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
   After remand by the Supreme Court of Alabama.

AFFIRMED on authority of Ex Parte State, Ala., 352 So.2d 838. No opinion.

All the Judges concur.


text:
    Gust BIBB v. STATE.
    3 Div. 500.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 8, 1977.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of grand larceny of an automobile and sentenced to imprisonment for four years. The evidence was essentially the same as that presented in a case wherein he was previously tried and convicted of burglary, from which he appealed. His conviction in the burglary case has been affirmed. Bibb v. State, Ala.Cr. App., 339 So.2d 1108. Grounds urged for a reversal in that case are also insisted upon in this ease. We adhere to our disposition of them in the burglary case.

According to the evidence for the State without which there could have been no conviction of defendant in this case, the automobile was stolen during the course of the same burglary of which he has been convicted. The particular automobile was in one of the driveways of the automobile sales company, at the time according to the evidence, defendant broke into the office of the company, obtained keys to automobiles and promptly thereafter drove away from the establishment in the automobile that he allegedly stole. According to testimony of Kenneth Starks, the strongest witness for the State, the following occurred:

“Q Now, I will call your attention to the early morning hours before daylight on October 10, 1975. Were you with Gus Bibb then?
“A Yes.
“Q Where were you, Kenneth?
“A At his house.
“Q Where were you before then?
“A At home.
“Q Okay. Where did you go when you left Gus’s house?
“A Went downtown.
“Q Where did you go downtown?
“A To Courtesy Ford.
“Q You went to Courtesy Ford?
“A Yes.
“Q Was it opened or closed?
“A Closed.
“Q What happened when you got out at Courtesy Ford?
“A Gus T. broke in.
“Q How did he get in?
“A With a board.
“Q What did he do?
“A He busted the window out.
“Q Kenneth, what did you do? What happened after Gus broke the window out there at Courtesy Ford?
“A He took the keys.
“Q What keys?
“A A cardboard full of keys.
“Q What did he do with them?
“A He took them and took a Riviera and we all got in the Riviera.
“Q Was that a 1970 Buick Riviera? [The particular automobile involved in this case].
“A Yes.”

Code 1940, T. 15, § 287, provides as follows:

Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.”

Intent to steal or commit a felony is an essential part of the gravamen of the crime of burglary. Wicks v. State, 44 Ala. 398, 400; Holland v. State, 247 Ala. 53, 22 So.2d 519; Aiola v. State, 39 Ala.App. 215, 96 So.2d 816. In the other case to which we have referred and in which appellant herein was convicted of burglary, the intent charged and claimed was the intent to steal, the same intent that formed an essential element of the crime of larceny of which he was convicted in the instant ease. In Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. denied, 294 Ala. 745, 321 So.2d 237, it was held that a final judgment of conviction of murder that was the immediate product of a burglary precluded a subsequent trial for and conviction of the burglary, wherein it was charged that defendant broke and entered with intent to murder. On application for rehearing, the State interposed Gordon v. State, 71 Ala. 315, in which it was held that a conviction of the larceny that one intended to commit at the time of the breaking and entry of a burglary is not a bar to a prosecution for the burglary. It was concluded, however, that whatever disharmony there may be between Gordon and what was held on original deliverance in Yelton, Code 1940, T. 15, § 287, controls. We are not called upon, and we do not here attempt, to decide, under every one of a variety of assumed situations, whether a conviction or an acquittal of the charge of burglary with intent to steal would constitute a bar to a prosecution for a closely related larceny, or the conviction or an acquittal of larceny would constitute a bar to a prosecution for a closely related burglary. For instance, we do not here hold in effect that an acquittal of one charge on the basis of failure of proof of some essential element of that charge which is not an essential element of the other charge would preclude a prosecution for the other charge, furthermore, we do not here hold in effect that there can never be a logical line of demarcation between the intent to steal in an indictment for burglary and the larcenous intent essential to a conviction of larceny taking place soon after and near the place of the burglary. In the case now before us, according to the undisputed evidence, the conviction of larceny was necessarily based upon the same intent to steal that had been formed in the mind of defendant prior to or at the time of his breaking and entry and continued in his mind until the time of the larceny.

We follow Yelton, supra, in holding that a final conviction of burglary constitutes a bar to defendant’s prosecution for the larceny charged in this case. In the light of Burress v. State, 56 Ala.App. 414, 321 So.2d 752, and the fact that it now appears that any and all questions as to the efficacy of the conviction and sentence in the burglary case have been finally resolved by an affirmance and the expiration of time for an application for rehearing, the judgment of conviction in this case should be affirmed but the case should be remanded for the rendition of an order that the sentence in this case shall run concurrently with the sentence in the other stated case of appellant — defendant.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Judgment of conviction affirmed; cause remanded for concurrent sentence.

AFFIRMED: REMANDED FOR CONCURRENT SENTENCE.

All the Judges concur.


author: JONES, Justice.

text:
    In re Gustt BIBB v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2426.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
    Charles Tom Payne, Montgomery, for respondent.
   JONES, Justice.

Reversed and remanded on the authority of Clift v. State, Ala., 352 So.2d 838 [released this date] and Colston v. State, Ala. Cr.App., 350 So.2d 337, 11 A.B.R. 1974 (1977). (For a recent United States Supreme Court holding on double jeopardy, see Harris v. Oklahoma,-U.S.-, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), here distinguishable for the reasons set out in Clift and Colston.)

REVERSED AND REMANDED.

All the Justices concur.


text:
    Gust BIBB v. STATE.
    3 Div. 500.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
   After remandment by the Supreme Court of Alabama, AFFIRMED, no opinion. Ala. 1977, 352 So.2d 842.

All the Judges concur.


author: HARRIS, Judge.

text:
    George GRIFFIN, alias v. STATE.
    6 Div. 151.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.
    Rehearing Denied June 28, 1977.

      Mark B. Poison, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the offense of obtaining property by false pretense and the Court sentenced him to five years imprisonment in the penitentiary. Throughout the trial proceedings appellant was rep-resénted by court-appointed counsel and at arraignment he pleaded not guilty. After sentence was imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on appeal.

Omitting the formal parts the indictment reads as follows:

“The grand jury of said county charge that, before the finding of this indictment, GEORGE GRIFFIN, alias GEORGE SAM GRIFFIN, alias GEORGE STERLING GRIFFIN whose name is to the Grand Jury otherwise unknown, did falsely pretend to Dr. John Sims with intent to defraud that the property located at Lot 15 in Block 5, according to survey of Redstone Land and Development Company’s 4th Section as recorded in Map Book 83, Page 33 in Probate Office of Jefferson County was free and clear of all encumbrances, and by means of such false pretense, obtained from the said Dr. John Sims one check the face value of Eight Thousand Five Hundred and Thirteen Dollars and one check, the face value of Thirty Seven Thousand Dollars, the personal property of Dr. John Sims, against the peace and dignity of the State of Alabama.”

The facts in this case are complex and confusing due, in large measure, to factors that tended to obscure the real issues. Added to this was the fact that appellant was allowed to partially conduct his own defense and to cross-examine the victim on a maze of legal documents which he claimed were relevant to the issues involved. No doubt this was designedly done to divert the minds of the jury from the charge laid in the indictment.

The victim, Dr. John Sims, was a disabled dentist who owned and lived in a house located on 5.5 acres of land in Jefferson County, Alabama. In November of 1970, appellant negotiated with Dr. Sims an option contract to purchase the land on which Dr. Sims lived.

Subsequently, Dr. Sims entered into an agreement to sell and convey these premises to Fin-Dev, Incorporated, of which corporation appellant was the President. The purchase price of the Sims property was one hundred and fifty thousand ($150,-000.00) dollars. The price was to be paid in four installments — the first three in the amount of $43,500, and the final payment was to be in the amount of $19,500. Each installment was due annually on August 1, beginning in 1971.

Because of the pending sale of his home and acreage Dr. Sims needed another home in which to live. Appellant agreed to build Dr. Sims a new house at a cost of $45,-530.00. Dr. Sims and appellant agreed that the new house would substitute for one of the installments due on the Sims property.

On January 25, 1971, Dr. Sims entered into a contract with Residential Planners, Inc., for the purchase of a house and lot. The agreement was made with appellant who was the President of Residential Planners, Inc. This contract was contingent upon the closing of the sale of the Sims property as agreed in the Fin-Dev, Inc. agreement. In pertinent part, the Residential Planners’ agreement reads as follows:

“The Seller agrees to convey said property to the purchaser by Regular Warranty deed free of all encumbrances, except as hereinabove set out and Seller agrees that any encumbrances not herein excepted will be cleared at the time of closing.”

No liens or encumbrances were set out on the face of this agreement.

For reasons unknown the Fin-Dev, Inc. contract was never consummated. However, appellant began construction of a home for Dr. Sims in April of 1971. In August of 1971 Dr. Sims moved into his new residence. Appellant made the first installment payment of $43,500. Dr. Sims gave appellant a check for $8,530.00 as part payment on the new house.

When the sale of the Sims property was finally made, it was through yet another agreement. This contract was entered into by and between Dr. Sims and Sterling Man- or, Ltd., of which the appellant was a general partner, and Residential Planners, Inc., of which appellant was President as aforesaid. This “tri-party” agreement did not mention that appellant was to build Dr. Sims a new home. The original terms for the payment of the Sims property remained the same.

At the time appellant received the $8,530.00 check from Dr. Sims the Sims property was encumbered as shown by the testimony of appellant on cross-examination:

“Q. When the house was completed, at that time there was no mortgage of any kind on it, was there?
“A. Yes there was.
“Q. What kind of mortgage was on the house?
“A. A construction loan.”

The evidence revealed that this construction loan was obtained from Exchange Security Bank through a commitment letter from Charter Mortgage Company. This commitment letter from Charter Mortgage Company expired and appellant obtained another commitment letter from Guaranty Savings in October of 1971. In March of 1972 appellant closed the construction loan and obtained a permanent mortgage on the property previously sold to Dr. Sims, all without the knowledge of Dr. Sims. The mortgage was to Guaranty Savings.

In 1972 appellant did not make the payment due on the Sims property until September of that year. At that time appellant gave Dr. Sims two checks, one for $37,000.00 and the other one for $6,500.00. Both checks were drawn on Sterling Manor, Ltd., and signed by appellant. Dr. Sims still owed $37,000.00 on the house appellant had constructed for him and appellant requested Dr. Sims to endorse this check back to him and Dr. Sims complied with this request.

On this same occasion appellant delivered to Dr. Sims a warranty deed to the house and lot appellant sold to Dr. Sims. This deed reads in part: “. . . that it is lawfully seized in fee simple of said premises, that they are free from all encumbrances, that it has a good right to sell and convey the same as foresaid.” Dr. Sims testified that when appellant gave him the deed, appellant “. . . read off the part of it stating that the property was clear.” At this time Dr. Sims requested a policy of title insurance on the property and appellant stated that he would have it in a few days. Several months later appellant delivered to Dr. Sims a document which he purported to be a title insurance policy. Dr. Sims later determined that the document represented by appellant to be a title insurance policy was not, in fact, a title insurance policy.

Dr. Sims subsequently discovered that a permanent mortgage had been placed on the house and lot in which he lived. This discovery came about in January of 1973 by virtue of a telephone conversation with a Mr. Foushee, an employee of Guaranty Savings and Loan. Mr. Foushee testified that Guaranty Savings and Loan had conducted a foreclosure inspection when the mortgage payments became five months in arrears. To avoid foreclosure on the mortgage on his home Dr. Sims paid all amounts then past due, and at the time of the trial of this case Dr. Sims was still making monthly payments to Guaranty Savings on said mortgage. '

Upon discovery of the mortgage Dr. Sims contacted the appellant and appellant told him that the mortgage was the result of a mix-up which appellant would take care of. Appellant failed to straighten out the so called “mix-up”, but gave Dr. Sims an undated check in the amount of $38,000.00 to cover the mortgage. Appellant told Dr. Sims that this check was no good, that he didn’t have the money, and that the check should only be cashed in the event something happened to him or he “went under”. That appellant “went under” cannot be disputed. He testified:

“I was involved in six different projects. There was a reversal in the economy and I had closed another three-quarter million dollar construction loan in myself and my wife’s name, Griffin Investments, another corporation, set up to do one specific job, building another apartment complex, and as a result of the reversal in the living economy, my financial situation changed and all of a sudden ... I was broke.”

Appellant further testified that he had made all mortgage payments as they became due until he was broke. Appellant sold his interest in the Sims property and the apartment complex on that property to one John O. Freeman. Dr. Sims subsequently received the remaining payments on his property from Mr. Freeman.

In January of 1975, Dr. Sims swore out a warrant against the appellant and the prosecution of this case commenced. When the case came to trial, counsel for appellant filed a motion to dismiss the indictment on the ground that the prosecution was not timely made. The trial court denied this motion. Counsel for appellant also renewed this ground for dismissal in the form of a request for a directed verdict, which request was also denied by the trial court, stating:

“. . . I think that any kind of a fraud type thing, as in civil cases, the statute of limitations must operate from the discovery. . . . For instance, in this case, I think if a person goes out, . a person could go out and purport a house to be free and clear and sell it to someone and put a mortgage on it, a thirty year mortgage, and then pay it off in three years with the idea that after three years not paying any more. No one would ever discover that fraud until after three years and the person quit, and then to say that that could not be prosecuted because three years had elapsed, to me would be an absurdity.”

Counsel for appellant further contended that there was a material variance in the indictment, stating that, in addition to the check in the amount of $8,530 given by Dr. Sims to appellant being outside of the three year statute of limitations; it was not obtained as a result of the alleged pretense that the property sold to Dr. Sims by appellant was not encumbered. This ground for directed verdict was also rejected by the trial court.

The offense of false pretense consists of: (1) the pretense; (2) its falsity; (3) obtaining property by reason of the pretense; (4) knowledge on the part of the accused of the falsity of the pretense; and (5) intent to defraud. Mitchell v. State, 56 Ala.App. 718, 325 So.2d 509; Spivey v. State, 55 Ala.App. 687, 318 So.2d 382.

In Stone v. State, 55 Ala.App. 663, 318 So.2d 359, 363, this Court said:

“To constitute the offense of false pretense, it is enough if a material part of the pretense is false; that it be made with the intent to defraud, and that it induces the person sought to be wronged to part with his property, and there are proper inquiries for the jury under appropriate instructions from the Court. Wilkerson v. State, 140 Ala. 155, 36 So. 1004.”

In the case of Young v. State, 155 Ala. 145, 46 So. 580, 581, the Supreme Court made this observation:

“And if a person should fraudulently represent a fact to be true, knowing at the time that it is not true, and resorts to the fraudulent representation to obtain money from another, and does so obtain it, he would be guilty of ‘defrauding’ another by ‘deceitful means’, and we do not doubt he would be guilty of obtaining the money under false pretenses.”

It is sufficient to prove so much of an indictment as shows that the defendant has committed a substantial offense specified therein. Fuller v. State, 39 Ala.App. 219, 96 So.2d 829; Parks v. State, 46 Ala. App. 722, 248 So.2d 761; Owens v. State, 291 Ala. 107, 278 So.2d 693.

Appellant contends there was a fatal variance in the indictment and the proof adduced in support thereof and further that the first check of $8,530 given by Dr. Sims to appellant was barred by the statute of limitations. We do not agree with either contention.

It is clear from the evidence that appellant contracted with Dr. Sims on January 25, 1971, to construct a house for him free of all encumbrances. It is also clear by appellant’s own admission that the property was encumbered when he received the first payment of $8,530.00 in August of 1971. This encumbrance still existed in September of 1972 when appellant delivered to Dr. Sims a warranty deed and read to him from that deed that the property was unencumbered. The only logical conclusion that can be drawn from these facts is that appellant obtained two checks from Dr. Sims on two occasions by means of one false pretense. This was part and parcel of one continuous transaction or occurrence.

In Beasley v. State, 59 Ala. 20, the Supreme Court held that goods obtained from one person on two different occasions by the same pretense constitutes only one transaction.

The allegation in the indictment of the amount of money obtained by false pretense is not descriptive of the essential ingredient of the offense charged. The charge can be sustained by proof of obtaining a less amount of money than that averred, and in the manner alleged. Foote v. State, 16 Ala.App. 136, 75 So. 728; Burnette v. State, 50 Ala.App. 630, 282 So.2d 70.

In Woods v. State, 133 Ala. 162, 31 So. 984, the Supreme Court held where an indictment for false representations alleged that the- defendant falsely stated, as a basis for credit, that he had an unencumbered horse and buggy, the fact that the proof showed that the horse, only, was encumbered, was not a fatal variance.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    In re George Sterling GRIFFIN v. STATE of Alabama. Ex parte George Sterling Griffin.
    SC 2704.
    Supreme Court of Alabama.
    Nov. 4, 1977.

      Mark B. Poison, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State. Opposed.
   JONES, Justice.

This case is before the Court upon writ of certiorari to review the conviction of George Sterling Griffin of obtaining property by false pretenses. The primary questions raised concern the applicability and timing of the statute of limitations. The trial Court found that the statutory period had not been exceeded, and this was affirmed by the Court of Criminal Appeals. We affirm.

In November of 1970, Dr. John Sims negotiated with the Appellant-Defendant, George Griffin, regarding the purchase by Griffin of five to eight acres of land owned by Sims. Agreements concerning this sale were superseded by a tri-party contract entered into by Sims, Sterling Manor, Ltd., and Residential Planners, Inc. Griffin was the general partner of Sterling Manor and the president of Residential Planners. Sterling Manor agreed to purchase Sims’ acreage for $150,000; Residential Planners agreed to construct a new residence for Sims for $45,537. Because Griffin was the alter ego of both companies, it was agreed that one of the payments from Sterling Manor to Sims would be satisfied by the construction of his house by Residential Planners.

On August 24, 1971, Sims gave Griffin a check for $8,530 as partial payment for the house. When, in August or September of 1972, Sterling Manor gave Sims two checks (one for $6,500 and one for $37,000) as the second yearly installment on the acreage purchase price, Sims endorsed the $37,000 check to Griffin to pay the balance owed on the new residence. At this time, Griffin gave Sims the deed to the property. As per prior conversations between the parties, the deed contained a provision stating that the residence property was free of encumbrances.

In January, 1973, Sims discovered that a mortgage had been placed against his house and property. Apparently, Griffin had obtained this mortgage from Guaranty Savings & Loan Association to secure a construction loan. He had paid several installments, but the mortgage was due to be foreclosed for arrearages when Sims discovered it. Sims paid the arrearages and continued to pay the mortgage debt. Griffin first claimed there was a “mix-up”; then, admitting the existence of the mortgage, assured Sims he would satisfy the debt; and finally gave Sims an admittedly worthless check as security for his payment of the mortgage.

On January 30, 1975, Sims swore out a warrant against Griffin charging that he obtained property by false pretenses. The jury found Griffin guilty and he was sentenced to five years in the penitentiary.

Griffin contends that the statute of limitations had expired prior to the commencement of this prosecution because the three-year limitations period begins to run from the commission of the offense. The State argues that, because this offense is a type of fraud, the statutory period should not begin until the crime is discovered. As authority for this proposition, the State asks this Court to analogize this situation with that of civil fraud. This appears to be a matter of first impression in this jurisdiction.

After a thorough examination of our statutes, and an extensive investigation of the case law of other jurisdictions, we conclude that the contentions of the State are fallacious for two reasons. First, the applicable statute of limitations, Tit. 15, § 221, Code, provides:

“The prosecution of all felonies, except those specified in sections 219 [dealing with capital offenses and other unrelated offenses] and 220 [dealing with conversion of State or County funds] of this title, must be commenced within three years next after the commission of the offense.” (Emphasis added.)

The plain language of this statute cannot be ignored. Adams v. Mathis, Ala., 350 So.2d 381 (1977); and Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830 (1974). If this case is within this statute, the limitations period for criminal false pretenses is three years from the date of commission.

The offense of obtaining property by false pretenses is punishable the same as larceny. Tit. 14, § 209, Code. For this reason, it is a felony if the accused obtained personal property, in this manner, valued in excess of twenty-five dollars. Tit. 14, § 331, Code. Therefore, because a felony is charged, and the case does not fall within the confines of sections 219 or 220, section 221, as above stated, must apply.

The only exception to this limitations provision is found in Tit. 15, § 226, Code. This section, however, merely pertains to lost or mislaid indictments or those dismissed because of a variance. It is apparent, then, that this case does not fall within the exception. For this reason, it must be presumed that section 221 is wholly applicable and we can make no new exception because the enumeration of certain things in a statute implies the exclusion of all others. Adams, supra; People v. Criswell, 12 Ill.App.3d 102, 298 N.E.2d 391 (1973); State v. Weiler, 338 S.W.2d 878 (Mo.1960); and State v. Parady, 95 N.H. 417, 64 A.2d 319 (1949). The creation of such an exception falls exclusively within the prerogative of the Legislature.

The second reason the statute must be deemed to begin to run from the commission of the crime is the very nature of what is a crime. A crime is committed only when all its essential elements are present and complete. Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943). The offense of obtaining property by false pretenses consists of the pretense; its falsity; obtaining property by reason of the pretense; and the intent to defraud. Tit. 14, § 209, Code; Mitchell v. State, 56 Ala.App. 718, 325 So.2d 509 (1975). Knowledge on the part of the victim is not required. Therefore, the date the crime was discovered is irrelevant. The statute of limitations begins to run with the commission of the crime, this being the date when all the above requisites coalesce. See generally 77 A.L.R.3d 689.

This does not end our inquiry into the case at bar, however. It is settled that an offense may be of a continuing nature. Where the acts, when consolidated, constitute but one offense, that crime should be the one with which the accused is charged. Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943); Troup v. State, 51 Okl.Cr. 438,2 P.2d 591 (1931); and 35 C.J.S. False Pretenses § 22. Similarly, if several acts form but one element of an offense, the offense is not complete until the last of such acts has been performed. United States v. Ashdown, 509 F.2d 793 (5th Cir. 1975); United States v. Andreas, 458 F.2d 491 (8th Cir. 1972); Carroll v. United States, 326 F.2d 72 (9th Cir. 1963); and 22 C.J.S. Criminal Law § 227(1). Cf., Johnson v. State, 49 Ala.App. 389, 272 So.2d 597 (1973); and Hendrix v. State, 17 Ala. App. 116, 82 So. 564 (1919).

In the case at bar, the false representation that there were no encumbrances upon the property was made several times. The objective of these representations was to obtain the purchase price of the residence. The payment of the first check was merely partial payment. The representation was repeated and more funds were obtained. Both payments were part of the same transaction. See Beasley v. State, 59 Ala. 20, (1877). Because the last act (the final payment) was performed in either August or September of 1972, and the warrant was issued in January, 1975, the three-year statute of limitations has been complied with.

Moreover, it is unimportant that the first payment, if taken alone, would be beyond the statutory period; and this for the reason that where the offense is continuous, the statute of limitations does not apply where some portion of the crime is within the period, although another portion thereof is not. United States v. Andreas, supra; People v. Adams, 106 Ill.App.2d 396, 245 N.E.2d 904 (1969); and 22 C.J.S. Criminal Law § 227(1).

Griffin further contends that there is a material'Variance between the indictment and the evidence. This argument pursues the familiar maxim of harmony between allegata et probata. The efficacy of this argument, however, is dependent in some measure upon our holding as regards the limitations question. Because of the view we have taken concerning that issue, the majority of this argument is now moot.

Any remaining viability concerning Griffin’s final contention must fail when viewed in light of copious case material on the subject.

“The amount of money or value of property taken in this offense is important in identifying the transactions and also in determining whether the punishment on conviction is to be treated as for grand or petty larceny. See Code 1940, T. 14, § 209. But plus or minus figures otherwise go only to credibility of testimony.” Burnett v. State, 50 Ala.App. 630, 634, 282 So.2d 70, 73 (1973).

See, also, Hope v. State, 5 Ala.App. 123, 59 So. 326 (1912). Proof as to the falsity of every pretense is not needed. Beasley, supra. It is sufficient to prove so much of an indictment as shows that the defendant has committed a substantial offense specified therein. Blakeney v. State, 244 Ala. 262, 13 So.2d 430 (1943); Stone v. State, 55 Ala. App. 663, 318 So.2d 359 (1975); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971); and Fuller v. State, 39 Ala.App. 219, 96 So.2d 829 (1957).

Because there is no substantial variance between the evidence elicited and the indictment, and because the case was commenced within three years from the final act of the continuing transaction, thus complying with the statute of limitations, the decision of the Court of Criminal Appeals is due to be affirmed.

AFFIRMED.

All the Justices concur except BEATTY, J., who concurs in the result.

      . The Legislature created the exception for fraud in civil cases. Tit. 7, § 42, Code. The presence of such a statute infers the necessity of it; the absence of one for criminal fraud infers that the Legislature sees no need to toll the limitations period in criminal cases. Moreover, it should be noted that the statute of limitations applicable to a civil case for fraud is one year, while the applicable period of limitations for the criminal offense of false pretense is three years.

      . In criminal prosecutions, two questions of time are involved. These are: when was the offense committed; and, when was the prosecution begun. Richardson v. State, 215 Ala. 318, 111 So. 204 (1926); and Davis v. State, 33 Ala.App. 601, 35 So.2d 621 (1948). The date of the “commencement” of the prosecution is the date of the issuing of the warrant. Tit. 15, § 225, Code; Richardson, supra; and Sherrod v. State, 14 Ala.App. 57, 71 So. 76 (1916). This is true even though a subsequent indictment is found, as long as the same offense is charged in both. Jackson v. State, 106 Ala. 136, 17 So. 349 (1894).


author: BOYD, Justice.

text:
    R. H. COODY & ASSOCIATES, INC., et al., Petitioners, v. Raymond T. SHELTON et al., Respondents.
    No. 50806.
    Supreme Court of Florida.
    Sept. 29, 1977.
    Rehearing Denied Dec. 28, 1977.
    Heskin A. Whittaker, of Whittaker, Pyle & Stump, Orlando, for petitioners.
    Roy L. Glass, of Meyers, Mooney & Adler, Orlando, for respondents.
   BOYD, Justice.

On a workmen’s compensation claim by R. T. Shelton the Judge of Industrial Claims found Shelton permanently and totally disabled and ordered appropriate benefits. Shelton’s attorney had not kept a time record, but he estimated that he had spent forty hours on the claim. The Judge awarded an attorney fee of $13,000. The Industrial Relations Commission unanimously affirmed the award of benefits and, by a split vote, affirmed the attorney fee award, Commissioner Friday dissenting.

The employer and its insurance carrier now petition this Court for certiorari because, in their view, both the disability finding and the award of attorney fees depart from the essential requirements of law.

The record shows that the finding of permanent, total disability and award of benefits are supported by competent and substantial evidence. The Commission, therefore, correctly affirmed them. Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974). The award of attorney fees, however, is plainly excessive. If the attorney, as he estimated, spent forty hours on the claim, his rate of compensation is $325.00 per hour. Expert testimony before the Judge of Industrial Claims offered that cases of this kind often necessitate up to sixty hours of work by an attorney. Even if the award is predicated on this testimony it is excessive.

Certiorari is granted and the cause is remanded to the Industrial Relations Commission for a reduction of the award of attorney fees. In setting the award the Commission should consider the factors listed in The Code of Professional Responsibility, Disciplinary Rule 2-106, Fees for Legal Services.

It is so ordered.

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

ADKINS, J., dissents and would affirm the Order of the Industrial Relations Commission.

HATCHETT, J., dissents.

       See Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla. 1968).


text:
    Morris RUSHING, Sr., Petitioner, v. JACKSONVILLE ELECTRIC AUTHORITY, a body politic and corporate, Respondent.
    No. 48933.
    Supreme Court of Florida.
    Oct. 20, 1977.
    Rehearing Denied Dec. 28, 1977.
    Rutledge R. Liles, of Howell, Howell, Liles & Braddock, Jacksonville, for petitioner.
    Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for respondent.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App.Rule 4.5 c. (6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause, Fla.App., 324 So.2d 727 should now be discharged. Accordingly, the writ of certiorari is discharged.

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

ADKINS, J., dissents.


author:
SUNDBERG, Justice.
      ENGLAND, J.,

text:
    Renaldo REINO, Sr., Petitioner, v. The STATE of Florida and the Honorable Gerald T. Wetherington, as Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent. STATE of Florida ex rel. Renaldo REINO, Jr., Petitioner, v. The Honorable Gerald T. WETHERINGTON, as Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    Nos. 50656 and 50705.
    Supreme Court of Florida.
    Oct. 27, 1977.
    Rehearing Denied Dec. 28, 1977.

      Theodore L. Tripp, Jr. and Tobias Simon, Miami, and Phillip A. Hubbart, Public Defender, Miami, and Elliot H. Scherker, Asst. Public Defender, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard E. Gerstein, State Atty., Miami, Paul M. Rashkind and Kurt Marmar, Asst. State Attys., Miami, for respondent.
   SUNDBERG, Justice.

By indictment filed August 5, 1976, petitioners were charged with murder in the first degree. Specifically, the indictment charged that the petitioners shot a man to death on September 7, 1972. Both father and son are charged with the same crime and both have filed a suggestion for writ of prohibition contending that prosecution is barred by the statute of limitations in effect on the date of the alleged offense. We have issued a rule nisi in prohibition as to each petition. The causes have been consolidated for briefing, oral argument, and final disposition.

On November 17, 1976, a lengthy hearing was conducted on the petitioners’ motions to dismiss. The petitioners argued that they should be released on the grounds that the statute of limitations had run prior to the filing of the indictment. It was their assertion that the crime was subject to a two-year period of limitations because the murder followed the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and preceded the adoption of a new death penalty statute on October 1, 1972. Predicated on his discernment of legislative intent, the trial judge rejected this contention and denied the motions to dismiss. The instant petitions seeking the issuance of writs of prohibition followed.

Jurisdiction in this Court is predicated on Article V, Section 3(b)(4), Florida Constitution, wherein writs of prohibition are authorized in causes within the jurisdiction of this Court to review. Petitioners claim this Court has jurisdiction to review both final and non-final orders in causes in which the death penalty can be imposed. Article V, Section 3(b)(1) and (3), Florida Constitution. While they assert that no death penalty is available in these cases, petitioners contend the trial court’s ruling does reach to another and different major characteristic of capital crimes — the non-applicability of the statute of limitations. Petitioners argue causes may be “capital” for purposes of this Court’s jurisdiction even though the death penalty is unavailing. They maintain this construction is logical because the trial judge found that the instant causes retained enough vigor as a capital crime to prevent the statute of limitations from applying despite the Furman decision. If causes can be “capital” for some trial purposes but not for others, they should be “capital” for purposes of this Court’s jurisdiction in the instant cases.

Although the jurisdictional point is novel and not without doubt, since the trial court has concluded that the State is not time-barred from prosecuting petitioners under a statute of limitations providing for prosecution at any time for an “offense punishable by death,” we conclude jurisdiction lies in this Court pursuant to Article V, Section 3(b)(4), Florida Constitution.

The determinative question before this Court is whether “capital” crimes committed between July 24, 1972, the effective date of the decision of the United States Supreme Court in Furman v. Georgia, supra, and October 1, 1972, the period when capital crimes did not exist in the State of Florida, are subject to the two-year statute of limitations codified in Section 932.465, Florida Statutes (1973).

At the hearing on the motions to dismiss the indictments, petitioners relied heavily on this Court’s decision in State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla. 1974). The Manucy opinion was rendered in consolidated cases which were before the Court on a petition for writ of prohibition as to Manucy and petition for certification of question as to Wilbur Estell Barber and Huey Leroy Fullard. In Manucy, the petitioner was charged on September 7, 1972, with first degree murder. The offense charged was alleged to have occurred four years preceding the filing of the affidavit for the arrest warrant. The warrant for arrest was issued on September 7,1972, and Manucy was arrested on September 9,1972. Prosecution against Barber and Fullard was commenced by issuance of an arrest warrant on January 14, 1972, charging them with murder in the first degree for a homicide occurring August 17, 1969. A grand jury indictment was filed on January 20, 1972.

The Court recited that the common question involved in the consolidated cases arose as an incidental consequence of the Furman decision. In analyzing the Manucy case, the Court pointed out that the death penalty was abrogated in Florida for the period from July 24, 1972, to October 1, 1972 (the hiatus period) as a result of Furman and the legislature’s subsequent enactment of Section 921.141, Florida Statutes (1973), effective October 1, 1972. Hence, capital crimes were abolished during the hiatus period subjecting all former capital crimes to prosecution within a two-year period. Ma-nucy contended that statutes of limitation are procedural and, consequently, the statute in force [Section 932.465(2), Florida Statutes (1971)] at the time of his arrest was applicable to bar prosecution. The Court rejected this contention by holding that statutes of limitation in criminal prosecutions vest substantive rights. Consequently, the statute in effect at the time of the incident giving rise to the criminal charge is controlling. 293 So.2d 345 at 347.

The State urges, and the trial court concluded, that the statement in the Manucy opinion “subjecting all former capital crimes to prosecution within a two year period” [293 So.2d 345, 346] is mere dictum. The prosecution maintains that the only holding of the decision is that statutes of limitation are substantive rather than procedural. Lane v. State, 337 So.2d 976 (Fla. 1976), is cited by the State as supportive of this position. The question in Lane was whether the application of a statute of limitations is a quasi-procedural matter so as to fall within subsection (3) of Section 775.011, Florida Statutes (1975). We determined that it is not and cited Manucy as authority for this proposition. However, such reference to Manucy in Lane can hardly be determinative of the issue before us in the instant cases.

As pointed out by petitioners, Manucy stands for two interrelated propositions of law; (i) the two-year statute of limitations was in effect for crimes previously denominated capital during the hiatus period; and (ii) the statute of limitations in effect at the time of the commission of the crime controls. Brief of Renaldo Reino, Jr., p. 17. Had the Court not first concluded that the two-year statute of limitations would apply during the hiatus period, it would not have been necessary to distinguish between the date of the alleged crime and the date of arrest, for Manucy’s contention would have been irrelevant. In essence, the question of whether the statute of limitations is substantive or procedural is relevant only if it is necessary to determine the time at which the statute is to be applied. If there were no distinction between pre-Furman and the hiatus period insofar as the period of limitations is concerned, then it would not have been necessary to ascertain the date for application of the statute. Accordingly, we reject the notion that the first proposition of law from Manucy enunciated above is dictum.

Accepting that one of the holdings of Manucy was that the two-year statute of limitations was in effect during the hiatus period, we are confronted with the assertion by the trial judge that this Court’s decision “represents a simplistic and mechanistic dictum on the subject.” With all due respect to the learned trial judge, his conclusion fails to consider Manucy in light of Donaldson v. Sack, 265 So.2d 499 (Fla.1972), decided on July 17, 1972 (prior to denial of rehearing in Furman). In anticipation that Furman would not be revised on rehearing, this Court in Donaldson undertook an analysis of the ramifications of the United States Supreme Court decision. The specific issue presented in Donaldson concerned the jurisdiction of circuit courts to try cases charging first degree murder. Article V, Section 9(2), Florida Constitution of 1968, vested jurisdiction in the criminal courts of record of this State over “all criminal cases not capital.” Article V, Section 6(3), Florida Constitution of 1968, granted jurisdiction to the circuit courts with respect to “all criminal cases not cognizable by subordinate courts.” The Court opined that since Furman eliminated capital cases (those in which the death penalty is a possible punishment), circuit courts, until such time as new legislation might revive “capital cases,” did not have jurisdiction in those cases theretofore delineated as capital. Consequently, it was held that subsequent to Furman, jurisdiction in such cases then pending or being filed vested in the courts of record in the seventeen counties having such courts. The authorities cited in Donaldson uniformly hold that the death penalty must be a possible punishment in order for the offense to be a “capital offense.” This Court in that case alluded to the “valiant attempt” on the part of the attorney general “to analyze and to analogize” the statutes then in force to support the continued existence of “capital offenses.” In much the same fashion as the State contends here, the attorney general there maintained that the definition of “capital felonies” under Section 775.081(1), Florida Statutes (1971), made the three offenses of first degree murder, kidnapping, and rape “capital” for purposes of jurisdiction. In rejecting this argument, the Court said:

. [W]e must refer to the penalty section, § 775.082(1) in this consideration, and this leads us right back to the old language of “punishable by death”. 265 So.2d 499, 502.

Thus, it is apparent that this Court rejected the classification rationale here asserted by the State in favor of the penalty rationale in determining the question of subject matter jurisdiction. Accordingly, if jurisdiction of the subject matter of the offense depends upon the permissible penalty, it would seem to follow that the question of whether prosecution is barred by the statute of limitations in force during the “hiatus period” should be measured by the same criteria when it categorizes by reference to offenses punishable by death.

Furthermore, Donaldson is important because it considered some of the procedural ramifications flowing from an elimination of capital offenses. It was determined that in the absence of capital crimes (i) initiation of all criminal proceedings could be by information or indictment and not solely by indictment; and (ii) trials for all criminal offenses would be held before a six rather than twelve-man jury. It was noted that the limitation upon the right to bail for offenses formerly “capital” was not affected because Article I, Section 14, Florida Constitution of 1968, limited the right to bail, not only as to those charged with a capital offense, but also as to those charged with an offense punishable by life imprisonment where the proof of guilt is evident or the presumption is great.

The compelling tenor of Donaldson is to the effect that all attributes of capital crimes, procedural or substantive, fall when and so long as the death penalty is abolished. The State maintains that although procedural changes such as those discussed in Donaldson follow from abolition of the death penalty, substantive matters such as the statute of limitations were not so affected. This assertion, however, is refuted by cases from jurisdictions which have considered the effect of abolition of the death penalty on the substantive question of entitlement to bail. This Court was not presented with that issue in Donaldson because, as noted, the applicable constitutional and statutory provisions limited the right to bail for offenses punishable by life imprisonment as well as those punishable by death. In other jurisdictions, however, where limitation upon the right to bail is reserved for capital offenses where the guilt is evident or the presumption is great, a preponderance of the courts have concluded that an individual charged with a capital felony has an absolute right to bail pending trial when the death penalty is abolished, either legislatively or through operation of the Furman decision. See In re Tarr, 109 Ariz. 264, 508 P.2d 728 (1973); Baumgarner v. Hall, 253 Ark. 723, 506 S.W.2d 834 (1972); Ex parte Ball, 106 Kan. 536, 188 P. 424 (1920); State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972); State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Edinger v. Metzger, 32 Ohio App.2d 263, 290 N.E.2d 577 (1972); and Ex parte Contella, 485 S.W.2d 910 (Tex.Cr.App.1972). Hence, it is apparent that all incidents of capital crimes, substantive as well as procedural, become inapplicable upon abolition of the death penalty. It would be conceptually inconsistent to conclude that the procedural advantages inuring to a defendant in a capital case fall with abolition of the death penalty and then conclude that the substantive disadvantages (limitation on entitlement to bail and unlimited statute of limitations) remain viable.

In support of the trial judge’s ruling, the State declares the need to construe what appears to be the plain and unambiguous terms appearing in Section 932.465, Florida Statutes (1973). After contending that a literal reading and application of that section would lead to an absurd result because the offense of first degree murder historically has never been subject to a statute of limitations in this State, respondent resorts to a device of statutory construction based upon the principle of incorporation by reference. It is asserted that the crimes denominated capital prior to Furman were incorporated by reference into Section 932.465, Florida Statutes (1973), and the invalidation of the penalty section of the Florida Statutes left Section 932.465(1) viable. To support its assertion, the State cites authority standing for the general proposition that when a statute adopts by reference another statute or some of its provisions, the adoption is as of the time of adoption and subsequent modification or repeal of the adopted statute does not affect the adopting statute. See VanPelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918); Annot.: Effect of modification or repeal of statutory provision adopted by reference in another provision — federal cases, 2 L.Ed.2d 2048 .(1958); Annot.: Effect of modification or repeal of constitutional or statutory provision adopted by reference in another provision, 168 A.L.R. 627 (1947). As stated earlier in this opinion, the classification rationale was rejected in Donaldson v. Sack, supra, with respect to the question of subject matter jurisdiction. The incorporation by reference argument was just as apt in Donaldson where it could have been said that the penalty statute was incorporated in the constitutional and statutory provisions delineating the jurisdiction of the circuit courts. Therefore, the Fur-man invalidation of the capital penalty left those jurisdictional provisions unaffected. We believe this premise was implicitly disposed of in Donaldson by the language in the opinion heretofore quoted. Whether or not the view of reference statutes here advanced was disposed of implicitly in Donaldson, it cannot prevail in these proceedings. Respondent quotes the general rule with respect to a statute incorporating another statute or some of its provisions as set forth in 168 A.L.R. 627, 628. However, the State fails to quote the rule in its entirety as it applies to adopting statutes which refer to general law regulating the subject, which is the case at bar. The remainder of the rule enunciated at p. 628 of the Annotation continues:

. but if reference in the adopting statute is to the general law regulating the subject, the incorporation is of that general law as it exists from time to time or at the time the exigency arises to which the law is to be applied. . (Emphasis supplied)

The annotator concluded that the Florida cases on the subject of reference to general law, taken in the aggregate, did not seem to be in harmony with the general rule stated. But, closer scrutiny of the Florida cases leads us to believe the annotator to be in error and that in the circumstances of these proceedings, the general rule should apply if we are to indulge in the art of devining legislative intent. Florida cases decided subsequent to the date of the latest case considered by the annotation bear out this conclusion. The original case on the subject, Jones v. Dexter, 8 Fla. 276 (1859), followed the general rule in construing an act which provided that property in the hands of an executor or administrator “shall be distributed according to the provisions of the law regulating descent.” The Court held that the legislative intent was to refer to any law of descent which might be in force at the time that the right to the distribution might become vested.

Disharmony occurred when the Court in Bushnell v. Dennison, 13 Fla. 77 (1870), conceded the correctness of Jones with respect to the proposition that the “law regulating descent” mentioned in the act for distribution was to be the law in force at the time the contingency occurred, but nonetheless overruled Jones as to the applicability of several provisos subsequently added to the adopted law by amendment. At best, Bushnell v. Dennison, supra, is equivocal. Apart from VanPelt v. Hilliard, supra, which dealt with incorporation of a specifically described statutory section, the only remaining cases on the subject in Florida dealt with in the annotation are Williams v. State, 100 Fla. 1570, 131 So. 864 (1930), its companion case, Kennedy v. Watson, 100 Fla. 1576, 131 So. 866 (1930), and State v. Harllee, 100 Fla. 1562, 131 So. 866 (1930). In the companion cases, the Court held that a statutory provision allowing constables fees “allowed sheriffs for like services” limited the constable to fees allowed sheriffs by the same general enactment (Rev.Gen.St.1920, §§ 2891, 2899) even though by later amendment fees for sheriffs were increased. The Harllee case presented the same question with respect to fees of justices of the peace in connection with fees allowed to clerks of the circuit court for similar services. In that the adopting and adopted provisions were sections of the same general enactment (Rev. Gen.St.1920, §§ 3084, 3384), a majority of the Court reached the same result as in the constable cases. In Harllee, the rule was articulated:

When one provision of a statute by general words of reference adopts provisions that appear only in another section of the same statute, future amendments of the adopted provisions are not to be regarded as included in the adoption unless an intent to include such future amendments in the adopting provision clearly appears. (Emphasis supplied) 131 So. 866, 868.

It appears, then, that the Court engrafted a variation on the general rule where the adopted provision was enacted at the same time as and as another section of the same statute in which the adopting provision appears. Consistent with Jones v. Dexter, supra, and the great weight of authority, it is apparent that the general rule applies in the instant proceedings because the provisions asserted to be incorporated by reference in Section 932.465, Florida Statutes (1973), are separate, non-specified general law, not a part of the same statute or enactment. This analysis of the state of the law in Florida relating to incorporation by reference is borne out by the later decisions of Hecht v. Shaw, 112 Fla. 762, 151 So. 333 (1933), and State v. Smith, 189 So.2d 846 (Fla.4th DCA 1966). The former involved a maintenance tax statute which adopted by reference the procedure for assessment, collection, and sale of lands for nonpayment of taxes contained in the law establishing the Everglades Drainage District Taxing Authority. In approving the adopting statute, the Court recited as authority the general rule respecting adopting statutes including the proviso:

But when the adopting statute makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting act, but also all subsequent laws on the particular subject referred to, so far at least as they are consistent with the purpose of the adopting act. 151 So. 333.

State v. Smith, supra, involved the question of whether a city may adopt by reference in an ordinance all present and future misdemeanors which shall be recognized by the State of Florida. Citing to the annotation in 168 A.L.R. 627 and Hecht v. Shaw, supra, the district court of appeal answered the question in the affirmative. See also Jaramillo v. City of Homestead, 322 So.2d 496 (Fla.1975).

Respondents submit that the trial judge was in error by concluding that the provisions of Section 932.465, Florida Statutes (1973), are ambiguous so as to require resort to statutory construction to ascertain legislative intent. In the alternative, they maintain that if statutory construction is required, the trial judge applied the wrong rules of construction. We concur with both assertions. The language of the statute is clear and unequivocal, and thus, legislative intent may be gleaned from the words used without applying incidental rules of construction. Tropical Coach Line, Inc. v. Carter, 121 So.2d 779 (Fla.1960). Words used by the legislature are. to be construed in their “plain and ordinary sense.” Pedersen v. Green, 105 So.2d 1 (Fla.1958). The legislature is presumed to know the meaning of the words it utilizes and to have a working knowledge of the English language. Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla.1958). It is apparent that the phrase “punishable by death” is susceptible of only a single construction — a crime for which the death penalty may be imposed.

Furthermore, if interpretation of legislative intent beyond the clear language of the statute were deemed necessary, two basic rules of construction were ignored by the trial court. First, criminal statutes are to be construed strictly in favor of the person against whom a penalty is to be imposed. State v. Llopis, 257 So.2d 17 (Fla. 1971); Allure Shoe Corporation v. Lymberis, 173 So.2d 702 (Fla.1965); Norris v. State, 249 So.2d 746 (Fla.4th DCA 1971); Dotty v. State, 197 So.2d 315 (Fla.4th DCA 1967). Contrary to this well established rule for construing criminal statutes, the trial judge construed the statute in question strictly against the petitioners. Second, statutes of limitation in criminal cases are to be construed liberally in favor of the accused. Bridges v. United States, 346 U.S. 209, 73 S.Ct. 1055, 97 L.Ed. 1557 (1953); Mead v. State, 101 So.2d 373 (Fla.1958); Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946). The reason for such rule is aptly stated in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970):

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, we have stated before “the principle that criminal limitations statutes are ‘to be liberally interpreted in favor of repose.’ ” (Citations omitted)

Were the foregoing not persuasive to sustain the petitioners’ position on the proper construction of the statute, the very actions of the legislature subsequent to Furman, Donaldson, and Manucy unequivocally expressed the intention of that body. As early as March, 1972, the legislature was cognizant of the possibility of the decision reached in Furman. Not only did the legislature revise the death penalty statute to be effective October 1, 1972 (Ch. 72-72, Laws of Florida), it enacted Ch. 72-118, Laws of Florida, filed in the office of the Secretary of State March 30, 1972, which amended Section 775.082, Florida Statutes, by adding a new subsection reading:

In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, a person who has been convicted of a capital felony shall be punished by life imprisonment.

However, it did not undertake to alter the statute of limitations applicable to capital crimes. Furthermore, notwithstanding the rendition of Donaldson on July 17, 1972, the legislature took no action to amend Section 932.465 during its session in 1973. In 1974, the legislature amended the statute of limitations related to criminal offenses to provide specific time limits for specified crimes. Ch. 74-383, Laws of Florida. Manucy was decided on April 1, 1974. Nonetheless, the legislature took no steps in the 1974 amendment to alter the consequences of Donaldson and Manucy. In both the 1973 and 1974 sessions, the legislature could have amended Section 932.465 retroactively to deal with capital crimes occurring during the “hiatus period” without running afoul of the constitutional ex post facto prohibition. See United States v. Richardson, 512 F.2d 105 (3d Cir. 1975); Falter v. United States, 23 F.2d 420 (2d Cir. 1928). Prosecution was not yet barred for crimes occurring during the hiatus period when the legislature met in regular session in 1973 and 1974.

It was not until 1976 through the enactment of Ch. 76-275, Laws of Florida, that the legislature provided for no limitation of time in prosecuting a life felony. No attempt was made to apply such provision retrospectively. However, for the first time the legislature spoke to the Furman-type repeal of the death penalty in a statute of limitations by providing:

. In the event the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, all crimes designated capital felonies shall be considered life felonies for the purposes of this section and prosecution for such crimes may be commenced at any time. Ch. 76-275, Section 1, Laws of Florida.

The core of respondent’s argument is that the legislature intended, prior to the enactment of Ch. 76-275, that all crimes “punishable by death” pre-Furman would remain subject to prosecution “at any time” during the “hiatus period.” Were that the intention of the legislature, Ch. 76-275 would be a nullity. However, the rule of law is that “when a statute is amended, it is presumed that the legislature intended it to have a meaning different from that accorded to it before the amendment.” Arnold v. Shumpert, 217 So.2d 116, 119 (Fla.1968).

It is inescapable from the holdings in Donaldson and Manucy, from a plain reading of Section 932.465, Florida Statutes (1973), and from any proper construction of that statute based on legislative intent, that prosecution for offenses committed during the period from July 24, 1972, to October 1, 1972, must have been commenced within two years from the date of such offense in order to comply with law. Consequently, the petitioners must be discharged.

There are those advocates of “law and order” among us who will view this decision as another example of courts being “soft on criminals.” We would respond by reminding these persons that the petitioners could have been prosecuted had their alleged crimes been detected, and had proceedings been commenced at any time within two years of the homicide. See Toussie v. United States, supra. More significantly, it must be remembered that without law there can be no order. The law must be applied evenhandedly to all lest we run the risk of selective prosecutions. Our government would then become one of men rather than laws. All subscribe to the notion that the law should be enforced. By our decision today, we enforce the law as was enunciated in Section 932.465, Florida Statutes (1973).

The rules nisi in prohibition heretofore issued in these consolidated cases are made absolute.

OVERTON, C. J., and BOYD and HATCHETT, JJ., concur.

ADKINS, J., concurs in result only.

ENGLAND, J., concurs with an opinion.

KARL, J., dissents.

ENGLAND, J.,

concurring.

It is often said that hard cases make bad law. This case would appear to fall into that category, if viewed in the way it is characterized by the state:

“The effect of the petitioners’ interpretation of the limitations statute is clear— all murderers who by chance committed their crimes between the effective date of Furman v. Georgia, supra, and October 1, 1972, the date of the adoption of a new death penalty statute, will be free from prosecution two years after their victims expire.”

But there is another (and, I believe, more accurate) way to characterize this case which suggests that it is neither hard to decide nor productive of “bad” law.

Despite the fact that the United States Supreme Court eliminated the possibility of state executions in July of 1972, the various crimes for which the death penalty previously could be imposed, such as murder, kidnapping and rape, still remained the most serious criminal acts recognized by our law. Nothing in the penalty change altered the responsibility of law enforcement officials to detect, apprehend, and obtain indictments against the perpetrators of these crimes as promptly as possible.

What we see here, then, is simply an inability of law enforcement officials, for whatever causes, to find and prosecute expeditiously the perpetrators of this 1972 murder. Statutes of limitations have always barred stale prosecution attempts, even though the product of villainy is the loss of a human life. This case reflects no more than a faithful application of the well-established legal principle that courts are bound to follow explicit legislative guidelines.

      . In 1972, § 932.465, Fla.Stat., read, in pertinent part, as follows:
      “(1) A prosecution for an offense punishable by death may be commenced at any time.
      “(2) Prosecution for offenses not punishable by death must be commenced within two years after commission . . .

      . Respondent’s brief at p. 7.

      . The statute of limitations has historically required that prosecutions for second degree murder and manslaughter be initiated within a certain period of time. § 932.465(2), Fla.Stat. (1973) (2 years); § 775.15, Fla.Stat. (1975) (4 years for second degree murder and 3 years for manslaughter).


author: HATCHETT, Justice.

text:
    ELECTRO ENGINEERING PRODUCTS CO., INC., et al., Appellants, v. Darrell LEWIS, etc., et al., Appellees.
    No. 50894.
    Supreme Court of Florida.
    Oct. 27, 1977.
    Rehearing Denied Dec. 28, 1977.

      Mark Hicks, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellants.
    Paul Freedman, of Preddy, Haddad, Kut-ner, Hardy & Josephs, Miami, and Arnold R. Ginsberg, of Horton, Perse & Ginsberg, Miami, for appellees.
   HATCHETT, Justice.

This case is before us to review an interlocutory order of the Dade County Circuit Court which upheld the constitutionality of Florida’s Long Arm Statute. We have jurisdiction to treat this interlocutory appeal as a petition for certiorari under Article V, Section 3(b)(3). Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla. 1974). The denial by the trial court of petitioners’ Motion to Dismiss is affirmed because service of process was properly predicated upon a sufficient allegation of jurisdictional facts warranting the exercise of personal jurisdiction over these foreign corporations.

Petitioners, corporations with headquarters in Illinois, allegedly manufactured and distributed the “Electro Rotary Airless Paintgun.” Respondent was injured when one of these allegedly defective paint guns suddenly ignited into flames. A complaint was filed seeking recovery for damages, and alleging that the petitioners utilized wholesale houses, mail order outlets, and other outlets for the sale of this paint gun to the general public in the ordinary course of commerce and trade. It was further alleged that this defective product was purchased in 1975 as a result of an advertising campaign which was and is still being conducted in this state, and that this product was distributed by petitioners for use by citizens of this state. Petitioners filed a motion to dismiss, arguing that the complaint alleged insufficient jurisdictional facts to obtain personal jurisdiction over them. If, however, personal jurisdiction was properly obtained pursuant to Florida’s Long Arm statute, petitioners assert that this section is unconstitutional for failing to require sufficient “minimum contacts” consistent with petitioners’ due process rights under the federal constitution. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Further, petitioners contend that the Florida Legislature exceeded its constitutional authority by directing extra-territorial service of process to be served by officers of foreign states.

To acquire jurisdiction over a nonresident pursuant to this section of Florida’s Long Arm statute, the plaintiff must initially allege in the complaint sufficient jurisdictional facts to show that the nonresident manufactured or serviced a product which was used within this state in the ordinary course of commerce and trade, and which injured a person in this state. The burden then shifts to the defendant to make a prima facie showing of the inapplicability of the Long Arm statute. At that time the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint. See Dublin Co. v. Peninsular Supply Co., 309 So.2d 207 (Fla.4th DCA 1975), and cases cited therein. However, the allegations of jurisdictional facts in the present complaint remain undisputed, and must be taken as true for the purpose of resolving petitioners’ arguments. Here, the facts stated in the complaint show that petitioners manufactured a defective paint gun, and were engaged in the business activity of marketing and distributing this product for use by citizens of this state. These allegations place them within the reach of the Long Arm statute and satisfy the “minimum contacts” required by the federal constitution.

We further determine that service of process was proper pursuant to Section 48.194, Florida Statutes (1975), and determine that there is no conflict between that section and Section 48.011, Florida Statutes (1975). Strict compliance with service of process procedures is required in order to insure that a defendant receives sufficient notice of the legal action brought against him in this state. The fact that our state legislative authority does not extend beyond state borders does not prevent the service of proper notice to non-residents as to suits brought against them here. Section 48.194, Florida Statutes (1975) is constitutional in that it provides a procedure for notifying parties in compliance with the requirements of due process.

The trial court’s order denying petitioner’s motion to dismiss for lack of personal jurisdiction is affirmed and the case is remanded for further proceedings.

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

      . Petitioners have challenged the constitutionality of § 48.193, Fla.Stat. (1975), the pertinent sections of which provide:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

      (f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
      ♦ * * * * H<
      (2) Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.

        (2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state.

      Section 48.194, Fla.Stat. (1975) provides:
      Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.

      . The injured plaintiff was a minor and was joined in this suit for damages by his parents.


author: ADKINS, Justice.

text:
    Kenneth B. SMITH, Elizabeth Smith, Doris Cooper Morgan and Kenneth B. Smith, Jr., Petitioners, v. H. A. (Al) MOORE and M. S. Linton, as Sheriff of Taylor County, Florida, Respondents.
    No. 50248.
    Supreme Court of Florida.
    Nov. 10, 1977.
    Rehearing Denied Dec. 28, 1977.
    Donald W. Weidner, of Harris, Liles, McConnaughhay & Weidner, Tallahassee, for petitioners.
    Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for respondents.
   ADKINS, Justice.

Writ of certiorari was granted in this cause to review the decision of the District Court of Appeal, First District (Smith v. Moore, 336 So.2d 145), on the ground that the decision under review affects a class of constitutional officers, specifically the sheriffs. We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

We approve and adopt the opinion and decision of the District Court of Appeal as the opinion and decision of this Court.

The writ of certiorari is discharged.

It is so ordered.

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


text:
    Glenn P. SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 50583.
    Supreme Court of Florida.
    Nov. 30, 1977.
    Theodore E. Mack, Asst. Public Defender, Tallahassee, for petitioner.

      Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. Certiorari was granted, without argument, based on apparent decisional conflict. Upon further consideration of the matter and review of the record, we have determined that the cited decision presents no direct conflict as required by Article ■ V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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


author: PER CURIAM. HUBBART, Judge,

text:
    Michael ROSENBERG, Appellant, v. Melody ROSENBERG, Appellee.
    No. 76-1628.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Rehearing Denied Dec. 7, 1977.
    Charles R. Lipcon, Miami, for appellant.
    James 0. Nelson, Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   PER CURIAM.

This is an appeal by the husband and a cross-appeal by the wife of the financial provisions of a final judgment granting the wife’s petition for dissolution of their marriage and other relief, entered by the Circuit Court of Dade County, Florida.

The parties were married for approximately eleven years. They have two children: a boy, seven, and a girl, four years of age. The wife is about thirty-two years old and the husband’s age is near that of the wife’s. The husband is a practicing orthodontist and the wife is a housewife, not otherwise employed, but capable of obtaining employment that would pay her from One Hundred, Fifty to Two Hundred Dollars per week. The husband’s annual earnings, as shown by him, were Twenty-Two Thousand, Eight Hundred Dollars, after deducting business expenses relating to his dental profession, and taxes. The wife contended that his earnings far exceed that amount. They lived in a home owned by them as tenants by the entireties, valued at One Hundred Thousand Dollars, to One Hundred, Ten Thousand Dollars. There was no special equity shown in the wife. It is encumbered by a mortgage of Sixty-three Thousand Dollars, payable at Five Hundred, Ninety-six Dollars per month. They jointly owned two automobiles, a 1974 model Pontiac and a 1971 model Ford; a nineteen-foot motor boat, furniture, and personal property in the marital domicile.

The court found that the marriage between the parties was irretrievably broken and that the wife and two minor children will need permanent alimony and support monies from her husband to enable her to properly support her self and their two minor children.

Based upon these and other findings, the court entered judgment that provided, among other things, that the bonds of matrimony be dissolved; that the custody of the two minor children be awarded to the wife; that the wife be awarded as lump sum alimony the husband’s interest in the marital home; that the husband shall have as his personal property the sterling silver service contained the home; that the parties shall divide equally the jointly owned furniture contained in the home; that the wife shall have as her personal property the 1974 Pontiac automobile owned by the parties; that the husband shall have as his personal property the 1971 Ford automobile and the Thunderbird motor boat; that the husband shall be responsible for all existing outstanding debts attributable to the children; that the husband pay to the wife the sum of Four Hundred Dollars per month per child as and for support until each child is emancipated or becomes self supporting; that the husband shall pay to the wife the additional sum of Three Hundred Dollars per month as and for permanent periodic alimony during her lifetime or until she shall remarry, and that the husband shall pay costs and reasonable attorney’s fees for representing the wife.

Appellant’s contentions in this appeal are that the trial court erred in awarding to the wife as lump sum alimony his interest in the home and Three Hundred Dollars per month permanent periodic alimony, in addition to reasonable attorney’s fees for her attorney. We have carefully reviewed the record on appeal, considered the briefs and arguments of counsel and have concluded that the trial court did not err in awarding to the wife as lump sum alimony the husband’s interest in the home owned by the parties as tenants by the entireties. Harder v. Harder, 264 So.2d 476 (Fla. 3d DCA 1972).

As to the award of Three Hundred Dollars per month permanent periodic alimony to the wife, it is our view that the court erred in such award as the record does not support an award of permanent periodic alimony to the wife. In lieu of the award of permanent periodic alimony, we are hereby amending that part of the judgment to provide for an award of rehabilitative alimony payable to the wife in the sum of Three Hundred Dollars per month for a period of three years from date of this court’s decision. Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973); Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973); Linares v. Linares, 292 So.2d 63 (Fla. 3d DCA 1974), and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

No other error having been made to appear on appeal or cross-appeal, the judgment as amended is affirmed.

Affirmed in part and reversed in part.

ON REHEARING

Rehearing denied.

HENDRY, C. J., and HAVERFIELD, J.

HUBBART, Judge,

dissenting.

Upon reconsideration of this case, I would grant the appellee’s petition for rehearing, deny the appellant’s petition for rehearing, and affirm the judgment of the trial court in all respects. In my view, the majority herein has substituted its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal and has concluded that three years rehabilitative, rather than permanent alimony would be more appropriate. That clearly is not our function. No demonstration has been made or could be made that the trial judge acted arbitrarily without any competent evidence in ordering permanent alimony in this case. Accordingly, it is our duty to affirm the judgment of the trial court and not re-try the case on appeal. Herzog v, Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Alimony has been traditionally considered an allowance which a husband is required to make in order to maintain his wife in the event of separation or divorce and is based on the common law obligation of a husband to support his wife. Floyd v. Floyd, 91 Fla. 910, 108 So. 896 (1926). In determining the nature and amount of such alimony, the courts have established two criteria: (1) The husband’s ability to pay, and (2) the needs of the wife, taking into consideration the standard of living shared by the parties to the marriage. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Sharpe v. Sharpe, 267 So.2d 665 (Fla.3d DCA 1972); Carmel v. Carmel, 282 So.2d 6 (Fla.3d DCA 1973).

Quite properly, these are criteria of the broadest nature, not susceptible to a precise formula automatically translatable to dollars and cents. The trial court of necessity has a wide discretion to apply the established criteria in fashioning a fair and equitable alimony award in the infinite variety of cases, that come before it. Absent a showing that the trial court exercised this discretion arbitrarily or unfairly, alimony awards made pursuant to such criteria must be sustained on appeal. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Pfohl v. Pfohl, 345 So.2d 371, 375 (Fla.3d DCA 1977); Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975).

In the instant case, it cannot be said that the trial court abused its discretion in applying the established criteria to fashion the alimony award herein. The husband clearly has the financial ability to provide permanent alimony to the wife; the wife has only a marginal ability to maintain an adequate standard of living when working at her full income potential; the husband has provided a relatively high standard of living during the marriage; the wife has been given the custody of two children of tender years; the wife has made a substantial contribution during the marriage to the husband’s professional progress; and the marriage herein was of relatively long duration. These are all significant factors in sustaining an award of permanent alimony. Waskin v. Waskin, 346 So.2d 1060 (Fla.3d DCA 1977); McAllister v. McAllister, 345 So.2d 352 (Fla.4th DCA 1977).

The alimony award herein is well within the realm of reasonable justification and the only way that it could be reversed is by substituting our judgment for that of the trial court in re-evaluating and weighing the testimony and evidence in this cause. I must therefore respectfully dissent.