text:
    Patrick BEZOTTE v. STATE.
    8 Div. 8.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of leaving the scene of an accident and he was sentenced to three years imprisonment in the penitentiary. At arraignment he pleaded not guilty. After sentence was imposed he gave notice of appeal. He petitioned for and was granted a free transcript. Trial counsel represents him on this appeal.

Mrs. Linda Graham, the victim in this case, testified that on the morning of January 3, 1977, around 2:15 a. m., she left her place of employment and proceeded to drive to her home. As she was driving she noticed a man in a Volkswagen pull up beside her who speeded up or slowed down depending upon whether she accelerated or decelerated her automobile. She stated that she drove past Green Street where she was supposed to turn to go over to White Street. She began to sound her horn and the Volkswagen almost forced her off the street twice. She finally arrived at her apartment and continued to sound her horn hoping that her husband was at home and would come to her, but her husband was still at work. She parked her car and the man in the Volkswagen parked beside her car; then the man walked to the driver’s side of Mrs. Graham’s car and told her to roll the window down. She refused to obey this command and pointed her pistol at the man and told him she would shoot him if he did not go away. The man laughed at her and walked around to the passenger’s side of Mrs. Graham’s car and tried to open the door. The door was locked and the man started banging on the car window. When the man realized he could not get into the car he went to his car and backed it up and smashed his car into the driver’s side of Mrs. Graham’s car and then drove away.

Mrs. Graham further testified that at no time did this man give her his name, his registration, or tag number. He did not stop after running into her car. She said the man struck the door of her car with the right bumper of his car. She stated the area around her apartment was well lighted and she got a good look at the man who smashed into her automobile.. The damage to her car was estimated tó be two hundred dollars which did not take into account the bent frame.

Mrs. Graham stated that when the man drove away she got the tag number of the Volkswagen and the number was DOB564. She went into her apartment and called the Huntsville Police Department and reported what had occurred. On January 4, 1977, she went to the Police Department where Officer William Dobbs handed her a stack of six photographs and asked her to look through them to see if she recognized the man who drove his car into hers. She immediately selected a photograph of the appellant and this photograph was introduced into evidence as State’s Exhibit No. 2. Mrs. Graham also made a positive in-court identification of appellant as the man who followed her to her apartment and ran his Volkswagen into her car. She stated that appellant appeared different at trial as his hair was cut shorter. She said on the night of the incident he had long blond hair and a beard. She described the automobile driven by appellant as a dark gray or brown Volkswagen.

On cross-examination Mrs. Graham testified that appellant offered to pay her husband any damage that was done to her car. She further stated that appellant offered $500.00 to her and her husband if they would drop the charges against him. This offer was rejected.

Howard Alspach, an officer with the Huntsville Police Department, testified that on January 3, 1977, about 2:35 a. m. he responded to a call from Mrs. Graham and observed her Toyota automobile damaged on the left rear quarter panel. He observed Mrs. Graham and she appeared nervous; as someone would naturally feel after going through some type of ordeal. He further stated that she did not appear to be intoxicated.

Police Officer Larry Gillespie testified that he went to Mrs. Graham’s apartment at about 2:30 a. m. following a telephone call from her. He observed a small Toyota parked in front of her apartment with damage to the left rear quarter panel. He stated that he got close to Mrs. Graham and did not smell any intoxicating beverage. In his words, “She was frightened and shook up, but she was not intoxicated in any manner.”

Police Officer William Dobbs testified that he was a “hit and run” investigator for the Huntsville Police Department; that he called Mrs. Graham to come to the Police Department to look at some photographs. He identified State’s Exhibits 1 through 6 as the same photographs he had shown Mrs. Graham. He stated that when she came across Patrick Bezotte’s picture she said, “this is the one.” He further stated that he ran a check on the license number DOB564 and found it was listed as belonging to Patrick Bezotte on Warren Drive.

Joel Jones, a Huntsville Police Officer, testified that he arrested appellant on a warrant for leaving the scene of an accident; that appellant was driving a 1967 Volkswagen and that the entire right side of the Volkswagen had been damaged.

Emmett Sanders, License Director for Madison County, testified as a witnesses for appellant and said that license number DOB564 could not be checked because it was not sold in Madison County. On cross-examination he stated that license number DDB564 was registered to Patrick Bezotte. He described the vehicle as a 1967 Volkswagen Beetle Sedan Primer Brown.

At the conclusion of the State’s case in chief appellant made a motion to exclude the State’s evidence on the ground the State had failed to make out a prima facie case. The trial court overruled this motion.

Appellant’s defense was an alibi. He did not testify but offered the testimony of several witnesses tending to support his alibi.

James Hardin testified that on the night in question he attended a party at his employer’s house in Morgan County from 11:00 p. m. until 2:15 a. m. He stated that appellant and his wife attended the same party. He further testified that, when he and his wife were leaving, he saw appellant and his wife getting ready to leave the party at the same time.

Hardin stated that he was employed at Automatic Electric which business was owned and operated by Greg Henderson. He said he knew Mrs. Bezotte and had often seen her eating lunch with her husband at Automatic Electric.

Dennie Wingester testified that he attended the same party given by Greg Henderson who was his immediate supervisor. He stated that he spoke to appellant and his wife several times during the party and saw them preparing to leave the party at 2:10 a. m. According to Wingester the party took place in Morgan County which was an hour’s travel from downtown Huntsville.

Ricky Edwards testified that he was employed at Automatic Electric and attended the party given by Greg Henderson and talked to appellant and his wife at the party. He stated that he saw them at the party at 2:00 a. m.

Janice Bezotte testified that she and appellant attended a party at her boss’s house on the evening of January 1, 1977, and the early morning hours of January 2, 1977. She stated she and her husband left the party at about 2:00 a. m., arriving home at 3:25 a. m. She said appellant did not leave home again that morning. She further testified they drove their brown Volkswagen to the party.

On rebuttal the State called Leon Greene who testified that he was employed by the Madison County Sheriff’s Department and had been so employed for about ten years. He stated that he knew Janice Bezotte and knew her reputation in the community for truth and veracity and that her reputation was bad.

The evidence in this case was in sharp conflict. We have held many times that conflicting testimony presents a jury question and a verdict rendered thereon will not be disturbed on appeal. Woods v. State, Ala.Cr.App., 344 So.2d 1225; Young v. State, Ala.Cr.App., 346 So.2d 509.

Alibi evidence is always a jury question. Mullins v. State, Ala.Cr.App., 344 So.2d 539; Smith v. State, Ala.Cr.App., 346 So.2d 500; Freeman v. State, Ala.Cr.App., 350 So.2d 768.

A much more serious question is presented by this entire record on the matter of whether appellant received a fair and impartial trial due to the conduct of the prosecuting attorney. Defense counsel made known to the Court that he had reason to believe that the prosecutor intended to ask two key defense witnesses about a juvenile record and a Youthful Offender conviction. The trial court instructed the prosecutor not to try and bring out anything concerning “Youthful Offender and juvenile.”

From the record:

(Cross-examination of James Hardin)

“Q. Were you or were you not convicted of indecent molestation, or adjudged guilty of indecent molestation, on January 25, 1967?
“A. No
“MR. SHIPMAN: Your Honor, we would object.
“THE COURT: All right. He said no.
“MR. SHIPMAN: We are going to object to further questions along this line, the inference being made to the jury — We would like to know if there is some reasonable belief for the District Attorney even asking that question. It sets up the inference in front of the jury, even though he denied it.
“THE COURT: I overrule the objection.”

On re-direct examination, the witness testified that, at the time of trial, he was twenty-one years old, which would have made him 11 years of age in 1967.

Further from the record:

(Cross-examination of Janice Bezotte)
“Q. Janice, are you the same Janice Be-zotte, who on November 4, 1974, in the Circuit Court of Madison' County, Alabama was adjudged guilty of possession and sale of heroin?
“A. No, sir, I was not.
“MR. SHIPMAN: Your Honor, we object. We would like to make some motions outside the presence of the jury. We brought this up to the Court before.
“THE COURT: Ladies and gentlemen, go back into the Jury Room.
“(The following occurred out of the presence and hearing of the jury:)
“MR. SHIPMAN: Your Honor, we object on the grounds that the witness was not convicted of possession and sale of heroin, to the best of our knowledge and belief. She was convicted as a youthful offender. We brought this up to the Court prior to her taking the stand. We would maintain that the question so highly prejudices the defense witness that at this point we have no choice but to once again ask the Court for a mistrial.
“MR. HOOPER: I have a certified copy of the judgment entry when she was found guilty. That was in 1973 when she entered the youthful offender report.
“THE WITNESS: I was not convicted for the sale of heroin.
“MR. SHIPMAN: We would further maintain in our motion that the word “heroin” has a connotation which cannot be erased in the jurors’ minds, and here she is charged and convicted for the possession of barbiturates, and the possession of barbiturates being a far cry from the possession and sale of heroin, and we don’t feel that it can be eradicated from the jurors’ minds.
“We would further ask before Court ends today that the Court Reporter read back the question that was asked to James Hardin in regard to his indecent molestation charge on such and such a date so that we may check it. We have reason to believe that there was never any James Hardin convicted of any indecent molestation, and again the question may have been so prejudicial that it could not do anything but hurt the Defense, and there would have been no grounds for it, to the best of our knowledge and belief. The defense witness has assured us that there are no grounds for this charge, and we looked it up and we can’t find any such charge. I don’t know why the question was asked.
“THE COURT: What says the State? Let me ask you this; is that what you are basing your question on, what you have in your hand there, this copy of the certificate?
“MR. HOOPER: Yes, sir.
“THE COURT: Does that say anything about heroin in it?
“MR. HOOPER: In the indictment, Judge—
“THE COURT: What was she convicted of?
“MR. HOOPER: For possession of barbiturates.
“THE COURT: You know how to ask a question in regard to laying a predicate for a prior conviction?
“MR. HOOPER: Yes, sir.
“THE COURT: Have you got any other little tricks like that that you want to try to pull on the Court?
“MR. HOOPER: No, sir, Judge, that wasn’t a little trick. I apologize.
“THE COURT: Have you got any other convictions you want to try to pull on this witness?
“MR. HOOPER: No, sir. The YO was 1973. That was the one that Mr. Ship-man referred to earlier.
“THE COURT: Is there any other witness you have that you are going to call? “MR. SHIPMAN: I think this will be our last witness, Your Honor.
“THE COURT: I am going to overrule your objection. I am going to instruct the jury in regard to both grounds that you have raised, to disregard the statement of the prosecuting attorney and the question that was asked of this witness, and to the witness James Hardin in regard to any prior convictions. I will let you proceed to ask the witness in regard to the conviction, if she has one, in regard to what she was convicted of.
“Bring the jury back out.”

When the jury returned the trial judge gave the following cautionary instructions.

From the record:

“THE COURT: Ladies and gentlemen, right before we took the recess, the break here, the question was asked of this witness by the prosecuting attorney in regard to whether or not she had been convicted of a prior offense of the possession and sale of heroin. I want you to disregard that question. Erase that from your mind. Do not let that bear on your consideration in this case whatsoever. I do not want you to pay any attention to what you have heard in regard to that question. Furthermore, there was a question asked earlier in regard to James Hardin in regard to whether or not he had been convicted of indecent molestation. Please disregard that question. He had denied it anyway, but I want you to disregard the fact that he was even asked that question, and do not let that have any bearing whatsoever in your deliberations in the case in arriving at your verdict.

“Go ahead with the witness.”

At this point, the prosecuting attorney asked the witness if she had been convicted of possession of barbiturates. Bezotte replied that she had.

Subsequently, appellant requested that the trial judge voir dire the jurors as to whether they could disregard these two instances. This motion was denied. However, the trial judge again instructed the jury that they were not to “let it have any bearing whatsoever on [their] decision in the case.”

In addition to his objections at trial, the appellant also included this matter in his motion for new trial. This motion was also denied.

In both instances, the prosecuting attorney did not come forward with a record of conviction, although both witnesses responded in the negative to the questions asked of them. Appellant contends that the prosecutor raised prejudicial inferences before the jury which he had reason to know were completely unfounded.

We find in the American Bar Association Standards for Criminal Justice the following statement concerning the function of the prosecution. “It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by the evidence.” Similarly, Alabama law states that, while the prosecuting attorney is under a duty to prosecute the case with vigor and earnestness, he should not take unfair advantage of the defendant. Arant v. State, 232 Ala. 275, 167 So. 540.

Even though a prior conviction involving moral turpitude may be shown upon the cross-examination of a witness, this examination should be subject to the limitation that it be conducted in good faith. See 3 A.L.R.3rd 965, and the cases cited therein, concerning lack of documentary proof of a prior felony conviction.

Appellant also contends that the prosecutor committed prejudicial errors during his closing argument to the jury in commenting on the defendant’s failure to testify.

From the record:

“THE COURT: All right. Start your closing summations.
(Mr. Hooper summed up to the jury on behalf of the State. During same the following occurred:)
“MR. SHIPMAN: Your Honor, we would object to the prosecutor saying that nobody took the stand and said, ‘Yes, I stopped. Yes, I did something else,’ referring to the Defendant. We would object to that.
“THE COURT: I sustain the objection. Ladies and Gentlemen, disregard the remarks that have been made by the prosecuting attorney. Disregard it from your mind. Do not let it have any bearing on your decision in the case. Let me say again at this point whatever they say is strictly — It’s not evidence in the case. It’s merely their inferences they get from the evidence that has been produced on the witness stand and that’s all.
“Go ahead.
“MR. HOOPER: Let me rephrase that. There has been no testimony either denying or affirming those elements of leaving the scene of an accident.
“MR. SHIPMAN: Your Honor, we would object again to the statement by the prosecutor.
“THE COURT: I sustain your objection. “Go to some other point.
(Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we object to the prosecutor testifying that the Defendant was in jail, when in fact he was not in jail. He was out for a long period of time on bond. He is misleading the jury.
“THE COURT: I sustain your objection.
(Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we object to that. We never said we represented him in another case. We said we were his attorney.
“MR. HOOPER: Judge, the record will bear me out.
“THE COURT: I sustain the objection. (Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we object. The Court ruled that this conversation was inadmissible.
“THE COURT: I sustain the objection. (Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we object to putting the jurors and their families in the place of the victim. I think that’s improper.
“THE COURT: Sustained.
“MR. HOOPER: I apologize for that, Your Honor. I apologize to the jury. I would hate for that to happen.
“MR. SHIPMAN: Your Honor, we object. He is just repeating the same thing.
“THE COURT: I sustain the objection.
(Mr. Hooper then concluded his summation to the jury.)
(Mr. Shipman summed up to the jury on behalf of the Defendant.)
(Mr. Hooper further summed up to the jury on behalf of the State. During the same the following occurred:)
“MR. SHIPMAN: Your Honor, we object to the prosecutor saying, ‘He wouldn’t tell them that he was in another county and he had an alibi.’ This is referring again to the Defendant and we object to that.
“THE COURT: I sustain the objection. I ask the jury to disregard the remarks of counsel in regard to that statement.
(Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we object to constantly referring to a witness that the Defense did not put on. He was equally available to the prosecution.
“THE COURT: Sustained.
“MR. HOOPER: I wish the witness was equally available to me. I wish Mr. Ship-man had told me who these people were.
“MR. SHIPMAN: Your Honor, I am going to object to that. He is going into it again.
“THE COURT: I sustain the objection. (Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: We object, Your Hon- or. We object to that. She couldn’t have seen that. That was taken in 1973 and this happened in 1977.
“THE COURT: I sustain the objection. (Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we object to the question to the jury, ‘What would he have done had he gotten in there?’ This is in regard to leaving the scene of an accident. He is not on trial here for anything that might have happened.
“THE COURT: Sustained.
(Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we object to telling the jury to put your wife over here.
“THE COURT: Sustained.
(Mr. Hooper then resumed his summation, and during same the following occurred:)
“MR. SHIPMAN: Your Honor, we are going to object to any testimony, any argument, as to why the Defendant did or did not come forward and say anything. I object to that.
“THE COURT: I sustain the objection.
“MR. HOOPER: But why would alibi witnesses, friends, why would they let you stay in jail or under these conditions for nine months?
“MR. SHIPMAN: Your Honor, I object to that again. There has been no testimony to that effect.
“THE COURT: I sustain the objection.”

In dealing with a similar matter the Supreme Court in Blue v. State, 246 Ala. 73, 19 So.2d 11, said:

“In determining the question before the court, we do not think that each of the above statements must be analyzed separately to see whether or not, if standing alone, it would create an ineradicable bias or prejudice. We think, on the contrary, that these various statements should be considered together to determine whether or not, in their cumulative effect, they created a prejudicial atmosphere. It may be that some of the statements of the solicitor were replies in kind to statements made by counsel for the defendant, and we fully recognize, as said in Arant v. State, 232 Ala. 275, 167 So. 540, 544, ‘a trial is a legal battle, a combat in a sense, and not a parlor social affair.’ The record shows that the presiding judge exercised great patience and in most of these incidents did what he could to disabuse as far as possible the minds of the jury of any prejudicial impression; but it is our duty to see to it that trials are free from prejudice and passion and that the courthouse means that where a conviction is obtained, it is obtained in an impartial atmosphere. The foregoing remarks were made in the presence of the jury. Considering them in their cumulative effect, we think that they were calculated to inject the poison of bias and prejudice into the minds of the jury. They created an atmosphere of bias and prejudice which no remarks by the court could eradicate. This is not justice and prejudicial error has been shown. Kabase v. State, 244 Ala. 182, 12 So.2d 766.”

And we add, that the accumulated conduct of the prosecution was prejudicial there can be little doubt. Nor can there be any doubt that appellant was tried in an atmosphere wholly at war with due process.

Mindful of the language in Beecher v. State, 294 Ala. 674, 320 So.2d 727, and Robinson v. State, Ala.Cr.App., 352 So.2d 11, this case is due to be reversed and remanded.

Reversed and Remanded.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Robert BRUTLEY, alias v. STATE.
    8 Div. 26.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.

      Gay R. Atkins, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a dismissal by the trial court of a petition for writ of error coram nobis.

The petitioner alleged, inter alia, that petitioner, the present appellant, was convicted in said trial court on November 21, 1975, of the crime of selling a controlled substance listed in the Alabama Uniform Controlled Substances Act of 1971, and on the same day he was sentenced to imprisonment in the penitentiary for a term of ten years and one day. As an indigent, he was represented by counsel appointed by the court. On the same day of his conviction and sentence, defendant through his counsel gave notice in open court of an appeal. The court appointed the same counsel to represent him on appeal. Different counsel represents appellant on the appeal now before us.

The appeal from the conviction and sentence was never perfected. No transcript of the evidence has ever been filed, and there was nothing for this court to review as of July 20, 1976, eight months after .the case was appealed, when this Court entered an order dismissing the appeal. On September 29, 1976, counsel different from counsel on the trial and on the previous appeal, and different from counsel in the coram nobis proceeding and on this appeal, filed a motion to set aside the dismissal of the appeal from the conviction and sentence, which motion was denied by this Court on October 1, 1976.

The petition for writ of error coram nobis was filed May 21, 1977. There was a hearing thereon on August 12, at which hearing petitioner-appellant and his former attorney testified extensively. Two other witnesses also testified on the hearing. On August 22, the court entered an order adjudging that defendant was not entitled to any relief prayed for in the petition and dismissing the petition. Thereafter, the court granted petitioner’s request as an indigent for a free transcript of the evidence and proceedings in the coram nobis case.

The gravamen of the petition for writ of error coram nobis is that defendant’s former counsel failed “to timely file a petition for the transcript of the trial and . to otherwise timely effect an appeal to the Court of Criminal Appeals” and that he thereby was deprived “of his right to effective assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and to due process of law guaranteed to your petitioner by the Fourteenth Amendment of the United States Constitution and in Article I, Section VI of the Alabama Constitution (1901).”

The pleadings and the undisputed evidence show that an effort was made by petitioner’s former counsel, in the form of a petition filed March 23, 1976, to obtain a free transcript on the basis of petitioner’s alleged indigency, in order that petitioner might adequately present an appeal from the judgment of conviction and sentence. That petition was denied by the court on March 24, 1976, and there is no disagreement between the parties hereto as to the correctness of the court’s ruling as to that petition, as the right to a free transcript of the evidence on the trial of the case resulting in the conviction and sentence had expired. Code of Alabama 1940, 1973 Cum. Pocket Part, Tit. 15, § 380(16).

The trial court was not in error in dismissing the petition for writ of error coram nobis. Applicable here is what we held in Strange v. State, 52 Ala.App. 531, 294 So.2d 779, 783 (1974):

“We can see that an expansion of the coram nobis remedy, or one in the nature of such remedy, would not be without good reason in a case in which an appeal had been wrongfully thwarted while the court that tried the case still had jurisdiction to the extent of allowing or of taking judicial cognizance of notice of an appeal, in which no action or judgment of the appellate court was involved. In this ease the trial court had lost jurisdiction of the case; it was no longer within the power of the trial court to allow or take cognizance of an appeal by defendant at the time of the alleged fraud or coercion. At that time the case was fully in the Court of Criminal Appeals.”

We also said in Strange v. State:

“Whether the Court of Criminal Appeals would or should grant relief in the particular respect now considered in a proceeding directed originally to it is not at issue at this time. We refrain from either encouraging or discouraging such a proceeding. We are content to hold that the trial court would have acted without authority if it had attempted either to vacate or to bypass the order dismissing the appeal and that the trial judge was correct in declining to do so. The judgment of the trial court should be affirmed.”

With especial reference to the last quoted statement from Strange, without prejudice to any future action by petitioner, we note that, although the trial court dismissed the petition in the case now before us on the ground that it did not have jurisdiction to grant the relief prayed for therein, it also stated in its judgment the following:

“Although this court, at this time, is not concerned with such controversy [the issue whether the failure to obtain a free transcript was the fault of court appointed counsel], the court is not reasonably satisfied that the Petitioner acted diligently or cooperated with his attorney to obtain a free transcript.”

We affirm the judgment of the trial court.

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.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    George Donly PETTY v. STATE.
    8 Div. 14.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.

      Macon L. Weaver, Huntsville, for appellant. ’
    William J. Baxley, Atty. Gen., and Susan B. Bevill, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the second degree and the jury fixed his punishment at fifteen years in the penitentiary. He was represented by retained counsel and upon arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and he is represented by trial counsel.

Appellant was charged with the shotgun slaying of his wife while they were in the process of divorce proceedings.

The evidence for the State tended to show that about 8:45 on the night of May 27, 1977, a Deputy Sheriff of Madison County, Richardson Franklin, was on routine patrol in the northeast section of Madison County. While traveling north on McCullom Road the Deputy stated that he “caught an object out of the corner of my eye.” He backed his patrol car and observed a 1967 red Ford parked on a field road off the main road on which he had been driving. He got out and walked to the Ford car and shined his flashlight inside this car and observed a black female lying across the front seat with her rear in the driver’s seat. He observed blood on her body, neck, left arm and left leg. He did not see anyone at or near the Ford automobile. He noticed a key ring on one of her fingers. He radioed for back-up units and soon two plain clothes officers arrived.

Captain Horton Lasater of the Madison County Sheriff’s Department and two other officers arrived at the scene at approximately 9:30 that night. One of the officers expressed the opinion that from the nature of the wound the deceased had been shot with a sawed-off shotgun. Later that night Captain Lasater and another officer went to the residence of the victim’s mother and were present when appellant and his brother-in-law arrived. One of the officers asked appellant if he owned a 1967 red Ford, and he replied, “Yeah, where is my wife, where is my wife,” and made a break to run. The officers caught, subdued him, handcuffed him and put him in the patrol car. He was transported to the Sheriff’s Office along with his brother-in-law.

Subsequently, appellant was given the Miranda rights and warnings. He signed a waiver of rights form and told the officers that he would make a statement. The officer asked him to write the statement, but he started crying and was so emotionally upset he asked the officer to write the statement for him. The officer wrote appellant’s statement just as he related the events that led up to his wife’s death.

The statement is as follows:

“VOLUNTARY STATEMENT
(UNDER ARREST)
“DATE 30 May 1977 TIME 12:35 AM PLACE Huntsville, Ala
“I, George Donly Petty, AM 29 YEARS OF AGE AND MY ADDRESS IS 2220 Mederis Rd, Huntsville Ala. I HAVE BEEN ADVISED AND DULY WARNED BY Leon Greene WHO HAS IDENTIFIED HIMSELF AS Investigator, Sheriff’s Dept., OF MY RIGHT TO COUNSEL BEFORE MAKING ANY STATEMENT, AND THAT I DO NOT HAVE TO MAKE ANY STATEMENT AT ALL, NOR INCRIMINATE MYSELF IN ANY MANNER. I HEREBY EXPRESSLY WAIVE MY RIGHT TO THE ADVICE OF COUNSEL, AND VOLUNTARILY MAKE THE FOLLOWING STATEMENT TO THE AFORESAID PERSON, KNOWING THAT ANY STATEMENT I MAKE MAY BE USED AGAINST ME ON THE TRIAL OR TRIALS FOR THE OFFENSE OR OFFENSES CONCERNING WHICH THE FOLLOWING STATEMENT IS HEREIN MADE. I DECLARE THAT THE FOLLOWING STATEMENT IS MADE OF MY OWN FREE WILL WITHOUT PROMISE OF HOPE OR REWARD, WITHOUT FEAR OR THREAT OF PHYSICAL HARM, WITHOUT COERCION, FAVOR OR OFFER OF FAVOR, WITHOUT LENIENCY OR OFFER OF LENIENCY, BY ANY PERSON OR PERSONS WHOMSOEVER.
“G.D.P. I requested Leon Greene to write this statement for me because I am not able to write. I left my momma’s house about six fifteen on Friday night, the 27 of May 1977, to take an invitation to James Hambrick. I was on my way over to James’s house, when something hit me that Deborah Davis gets off from work about five thirty or six o’clock. Deborah goes down Meriadianville bottom road all the time. I went down the gravel road off the paved road on the second curve. I parked my car by a lane facing the paved road. I was sitting on the back of the car with my gun, a sawed off shotgun. I don’t know what gauge it is, a twelve or sixteen. I sat there about fifteen or twenty minutes when Gloria, my wife passed by. She backed up and came down the gravel road where I were. She asked me what was I waiting on down there. I told her I was waiting on Deborah. She asked me for what. I told her to take care of what I called her for the other night, I meant Deborah. She asked me, ‘do you think Deborah is coming down here, because the other night when you called her, Deborah called the Police.’
“I said, ‘if she don’t come, I’ll go catch her.’ Gloria asked me what I was going to do with the gun. Her car was pulled up into the lane behind my car on the road. She was sitting in her car and I was standing beside the car on her side. Gloria asked me to let her see the gun, I told her she didn’t need it. She told me I was the one that didn’t need it, she said, ‘if Deborah doesn’t come who else is coming, the Blizzard girl.’ I told her no. She reached out and caught hold of the end of the gun. I snatched the gun back and it went off, Gloria fell back onto the seat, I called her but she didn’t say nothing. I went to my car and left.
“I went to James Hambrick’s house and left the invitation. Before I went to James Hambrick’s house, I drove to my brother’s grave at Petty’s Cemetery by Buckham School. I left from there, went to Hambriek’s house, then to my mother’s house. I took the shotgun into the house and set it in the corner of my brother’s room. I went outside where W. D. Strong, Mary Petty; Sarah Petty Whit-more and Jimmy Strong, my sister Betty Petty, Marie Petty, my brother John and a friend of John’s, Joe Ed Corn. Me and W. D. left and went to Hardy’s. We got something to eat, went back to my mother’s house. They all decided to go to Mary’s house and play cards. After we were playing cards, my mother called me and said Elnora Walker had called her, that’s Gloria’s sister, asked me if I had seen Gloria. I told them no. W. D. and I went to Elnora’s house. We left there and went to CIT to see if she was working. I did this to cover the fact that Gloria was already dead. We left from Elnora’s house, in my car, went to Gloria’s mother’s house in New Market.
“That’s when the Police were there when we got there. They told me they had a found a red Ford and asked me if I owned a red Ford. I told them yes and they brought us down here to the Sheriff’s Department. I denied any knowledge of Gloria’s death until now.
“I was alone when Gloria was shot.
“I HAVE READ THIS STATEMENT CONSISTING OF 4 PAGE(S), AND I AFFIRM TO THE TRUTH AND ACCURACY OF THE FACTS CONTAINED THEREIN.
“THIS STATEMENT WAS COMPLETED AT 1:14 AM ON THE 31 DAY OF May, 1977.
“WITNESS: /s/ Leon Greene
“WITNESS:
/s/ George D. Petty
Signature of person giving voluntary statement”

Outside the presence and hearing of the jury the State laid all proper predicates going to show that no threats, promises, rewards, or other inducements were made to appellant to get him to sign the confesso-ry statement. The Court held that the statement signed by appellant was knowingly, voluntarily and intelligently made and that it would be admitted into evidence. Back before the jury all pre-Miran-da and Miranda predicates were properly laid and appellant’s signed statement was admitted into evidence and read to the jury.

An officer went to appellant’s mother’s home and asked her for his shotgun. She voluntarily gave him the sawed-off gun. The officer testified that he smelled the barrel, and in his opinion the gun had been fired recently.

Appellant testified and denied the contents of his signed statement. He further testified that he did not shoot his wife. He offered alibi evidence by several witnesses.

Appellant contends that the State failed to prove the corpus delicti and it was therefore error to admit his confessory statement into evidence.

In Favors v. State, Ala.Cr.App., 355 So.2d 103, this Court recently held:

“The argument is made that defendant’s conviction violates the rule requiring corroboration of a defendant’s confession or incriminating statement by evidence of the corpus delicti. The argument is based on an erroneous assumption that proof of the corpus delicti must include evidence of defendant’s guilty connection with the alleged crime. In Arnold v. State, 57 Ala.App. 172, 326 So.2d 700, 701 (1976) it was held:
“ ‘Proof of the corpus delicti does not necessarily include evidence connecting defendant with the crime. The term, meaning body of the offense, connotes the actual commission of the crime by someone.’ ”

John Kilbourn, a toxicologist with the State of Alabama, testified that cause of death was internal bleeding as a result of the gunshot wound and death resulted very rapidly. His testimony proved the corpus delicti and made admissible the incriminating statement made by appellant.

It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness or falsity of conflicting evidence. Williams v. State, Ala.Cr.App., 348 So.2d 1142; Freeman v. State, Ala.Cr. App., 350 So.2d 768.

Alibi evidence is always a jury question. Washington v. State, 55 Ala.App. 116, 313 So.2d 544; Freeman v. State, supra.

As we have pointed out when appellant was asked if he owned a 1967 red Ford he attempted to flee. At this time he had not been questioned as to the death of his wife. Evidence of flight, or attempted flight, was material on the question of appellant’s guilt. Ala.Dig. Homicide @==>774(7).

All questions raised on this appeal were properly submitted to the jury and as the Supreme Court said in Young v. State, 283 Ala. 676, 220 So.2d 843,

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error.”

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.


author: KARL, Justice.

text:
    The NATIONAL UNION FIRE INSURANCE COMPANY, Petitioner, v. LENOX LIQUORS, INC., Respondent.
    No. 51266.
    Supreme Court of Florida.
    Dec. 15, 1977.
    Rehearing Denied June 5, 1978.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for petitioner.
    Michael B. Solomon of Theodore M. Trushin Law Offices, Miami Beach, for respondent.
   KARL, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Third District, 342 So.2d 532 (Fla. 3rd DCA 1977), which conflicts directly with Capoferri v. Allstate Insurance Company, 322 So.2d 625 (Fla. 3rd DCA 1975), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Carrying a BB and pellet gun, McClen-don, a thirteen-year-old minor, and another entered respondent’s liquor store. Believing that Lenox Liquors was beipg held up by McClendon, Rosen, president of Lenox Liquors, shot McClendon. McClendon brought an action against Lenox and Rosen, alleging that Rosen assaulted him by maliciously, willfully and wantonly firing a loaded shotgun at him striking him in the back, thereby causing grievous personal injury. The complaint expressly charged:

“3. That on or about January 24,1969, Plaintiff was a patron of the Defendant, LENOX LIQUORS, INC. in its said store and at that time and place, the Defendant, ROBERT ROSEN, assaulted the Plaintiff LEROY McCLENDON by maliciously, willfully and wantonly, firing a loaded shotgun at the Plaintiff LEROY McCLENDON, striking the said Plaintiff in the back with buckshot and thereby causing Plaintiff grievous personal injuries, all without cause or provocation on the part of the Plaintiff.”
“4. That as a direct result of the aforesaid assault and battery by the said ROBERT ROSEN, the Plaintiff suffered grievous, painful wounds in his back, chest, lungs and limbs and suffered shock and injury to his nervous system, and suffered and still suffers severe bodily pain and discomfort from said wounds inflicted upon his person, all of which injury is permanent and continuing in nature, causing great mental and physical pain and suffering and requiring extensive medical care and treatment now and in the future.”

Respondent called upon petitioner, its insurer, to defend, but petitioner refused. Respondent then filed a third party complaint against petitioner and claimed indemnification in the event it was liable to McClendon. Petitioner moved for judgment on the pleadings and argued that the allegations of McClendon’s complaint charging intentional tort relieved it from responsibility to defend. The trial judge granted judgment on the pleadings but explained:

“ . . [T]he Court finds that the main suit filed herein alleges a wilful, wanton and malicious assault and battery as to the Third Party Plaintiffs, Lenox Liquors, Inc. and Robert Rosen. That Third Party Defendant’s policy of insurance does not provide coverage for bodily injury that was expectedly or intentionally inflicted by an insured.
“ . . . This judgment is without prejudice as to LENOX LIQUORS, INC. and ROBERT ROSEN to file an amended third party complaint if the Plaintiff in the main suit files a subsequent action so as to bring the allegations therein within the coverage of the subject policy.”

Thereafter, respondent and McClendon settled the matter and entered into a joint stipulation which provided inter alia:

“1. That a Complaint for damages, based upon the alleged willful conduct of the Defendants, which willful conduct is expressly denied by the Defendants, for alleged injuries and damages sustained by the minor Plaintiff as a result of the certain incident which occurred on or about January 24, 1969, has been heretofore filed herein;
“2. That through discovery taken herein, parties have agreed that had settlement not been reached herein, the allegations in the Plaintiffs’ Complaint would have been tried upon the negligent conduct of the Defendants rather than upon the Plaintiffs’ claim of willful conduct of the Defendants, and this settlement has been reached upon this basis.”

After settlement and payment, respondent instituted an action against petitioner under the terms of the policy for indemnification for settlement, costs and attorney’s fees incident to defense of McClendon’s action. The trial judge entered final judgment for respondent and found that as a matter of law, respondent is not barred from proceeding in the instant suit because of res judicata or estoppel by judgment and determined that respondent’s claim falls within the exception to the general rule pertaining to liability insurer’s duty to defend being governed by the allegations of the complaint filed against its insured, since the exception to the rule states that an insurer is obligated to defend its insured when the insurer knows or should reasonably be expected to know the facts which bring the claim within the purview of the policy. The Court expressly stated:

“ . Rosen neither expected nor intended to injure an innocent customer of Plaintiff’s liquor store, but rather only expected or intended to injúre an armed robber threatening his life and the Plaintiff’s property. Herein, Rosen’s acts were an accident in that his injuring of an innocent customer was unintended and undesigned.”

Upon appeal, the District Court of Appeal, Third District, affirmed the final judgment and opined that an insurance company’s duty to defend is greater than its duty to pay and that the petitioner, insurer, stipulated that McClendon’s claim would have to be tried on a negligence theory.

We find that the instant decision of the District Court of Appeal, Third District, conflicts with Capoferri v. Allstate Insurance Company, supra, wherein the same District Court expressly recognized the well-established rule of this state that the insurer is under a duty to defend a suit against an insured only where the complaint alleges a state of facts within the coverage of the insurance policy and explained:

“A liability insurance company has no duty to defend a suit where the complaint upon its face alleges a state of facts which fails to bring the case within the coverage of the policy. Consequently, the company is not required to defend if it would not be bound to indemnify the insured even though the plaintiff should prevail in his action. Consolidated Mutual Insurance Company v. Ivy Liquors, Inc., Fla.App.1966, 185 So.2d 187; C. A. Fielland, Inc. v. Fidelity & Cas. Co. of New York, Fla.App.1974, 297 So.2d 122; Garden Sanctuary, Inc. v. Insurance Co. of No. Amer., Fla.App.1974, 292 So.2d 75; St. Paul Fire & Marine Insurance Co. v. Thomas, Fla.App.1973, 273 So.2d 117; and Bennett v. Fidelity & Casualty Company of New York, Fla.App.1961, 132 So.2d 788.
“Here, the only cause of action alleged in the Dimon’s complaint was one for intentional acts by Capoferri. The record reflects that intentional acts by the insured were not within the coverage of the Allstate automobile liability policy. Even if Dimon had proved all of the allegations in his complaint and taken a judgment against Capoferri, based on the rule set forth above, Allstate would have been under no obligation to indemnify Capof-erri. Therefore, since Allstate had no duty to defend in this matter, the trial court properly granted judgment for Allstate on its motion for summary judgment.”

The District Court of Appeal, Third District, distinguished Capoferri v. Allstate Insurance Co., 322 So.2d 625 (Fla. 3rd DCA 1975), cited sub judice, as the basis for conflict, on the basis that in the instant case, the insurer stipulated that McClen-don’s claim would sound in negligence while in Capoferri the claim was for intentional tort.

However, this is not a valid distinction. Review of the stipulation between petitioner and respondent evidences that the insurer did not stipulate that McClendon’s claim would sound in negligence but rather stipulated that prior to the scheduled trial of the cause between McClendon and Lenox Liquors, Inc., Rosen and Lenox Liquors, Inc., reached an oral agreement with McClen-don’s attorneys, and that this agreement, formalized by the parties into a written joint stipulation and Motion for Appointment of Guardian Ad Litem and Approval of Settlement, recited that those parties had agreed that had settlement not been reached, the cause would have been tried on negligence grounds rather than willful conduct.

Having found conflict which vests jurisdiction in this Court, we now proceed to consider the cause on the merits. The insurance policy involved sub judice provides, in pertinent part:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage
to which this insurancé applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

Occurrence is defined as:

“ ‘[Occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Emphasis supplied.)

The allegations of the complaint govern the duty of the insurer to defend. The original complaint filed by McClendon did not allege facts which would bring the cause within the coverage of the insurance policy since the only cause of action alleged was one for intentional acts by Rosen. Therefore, the insurer had no duty to defend. The trial court recognized this fact when, in his order granting judgment on the pleadings for the insurer, the trial judge expressly stated that the main suit alleged willful, wanton and malicious assault and the policy of insurance does not provide coverage for bodily injury that was expectedly or intentionally inflicted by an insured.

For the foregoing reasons, the decision of the District Court of Appeal is quashed, and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

OVERTON, C. J., BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., and DREW (Retired), J., concur.

      . Cf. C. A. Fielland, Inc. v. Fidelity and Cas. Co. of New York, supra.


author: ENGLAND, Justice.

text:
    William GALLANT, Appellant, v. Cliff STEPHENS, Don Jones, Jeanne Malchon, Charles E. Rainey, G. Patrick Iley, Merrett Stierheim, O. Sanford Jasper, Mac Haines, James T. Russell, Robert Shevin, and J. Ed Straughn, Appellees.
    No. 48604.
    Supreme Court of Florida.
    Jan. 26, 1978.
    Rehearing Denied June 5, 1978.

      Jack F. White, Jr., Clearwater, and Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Michael S. Davis, Chief Asst. City Atty., St. Petersburg, W. Gray Dunlap, County Atty. and Gerald A. Figurski, Asst. County Atty., Clearwater, and Robert L. Shevin, Atty. Gen. and Larry Levy, Asst. Atty. Gen., Tallahassee, for appellees.
    Ralph A. Marsicano, Gen. Counsel, Tampa, and Burton M. Michaels, Staff Atty., Tallahassee, for Florida League of Cities, Inc., amicus curiae.
    Robert L. Nabors, County Atty., Titus-ville, for Board of County Commissioners of Brevard County, amicus curiae.
    Edward M. Jackson, Cocoa, and Joseph C. Jacobs, Richard W. Ervin and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Gilbert A. Tucker, et ux; Deseret Ranches of Florida, Inc.; Sun Bank of Ocala, etc.; F. E. Sullivan, III, et al.; A. Duda & Sons, Inc., etc.; Carolyn R. Kempfer, et al.; and Roy Platt, etc., amicus curiae.
   ENGLAND, Justice.

By direct appeal we are asked to review an order of the Pinellas County Circuit Court upholding the constitutionality of Sections 125.01(1)(q) and (l)(r), Florida Statutes (1975), which together authorize counties to create “municipal service taxing units” having the power to impose ad valo-rem taxes without voter approval. We have jurisdiction under Article V, Section 3(b)(1) of the Florida Constitution.

Following a series of legislative attempts to deal with this subject, Sections 125.-01(l)(q) and (l)(r) were amended in 1975 to read:

“(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include . . . the power to: .
(q) Establish . . . municipal service taxing or benefit units for any part or all of the unincorporated area of the county within which may be provided . essential facilities and municipal services from funds derived from . taxes within such unit only. It is hereby declared to be the intent of the Legislature that this paragraph is the authorization for all counties to levy additional taxes, within the limits fixed for municipal purposes, within such municipal service taxing units under the authority of the second sentence of Art. VII, Section 9(b) of the state constitution.
(r) Levy and collect taxes, both for county purposes and for the providing of municipal services within any municipal service taxing unit . . . . There shall be no referendum required for the levy by a county of ad valorem taxes both for county purposes and for the providing of municipal services within any municipal service taxing unit.”

Purportedly acting pursuant to this legislative authorization, the Board of County Commissioners of Pinellas County adopted a resolution creating a municipal service taxing unit, for a variety of services, coextensive with the entire unincorporated area of the county. The Board designated itself the governing body of the taxing unit. Appellant, a taxpayer and property owner in the unincorporated area of Pinellas County, challenges the constitutionality of the resolution and enabling legislation. His principal challenge is grounded in Article VII, Section 9 of the Florida Constitution (1975), which provides in relevant part:

“(a) Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes
(b) Ad valorem taxes . . . shall not be levied in excess of the following millages upon the assessed value of real estate and tangible personal property: for all county purposes, ten mills; for all municipal purposes, ten mills; for all school purposes, ten mills; and for special districts a millage authorized by law approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation. A county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes.”

The principal issue before us is whether the Legislature has the power to authorize a county to furnish municipal-type services funded by ad valorem taxes, solely in its unincorporated area, without referendum, by creating a taxing unit comprising that geographical area. Other issues presented by the parties neither aid in the resolution of this important question, nor obviate the need to resolve it.

The overall scheme of Article VII, Section 9 provides the starting point for our analysis. Entitled “Local taxes”, that section provides certain local governmental units — counties, municipalities and school districts — with the authority to levy ad va-lorem taxes on real and tangible personal property for county, municipal and school purposes up to a maximum of ten mills for each. It also authorizes “special districts” to tax for their districts to the extent of millage limits prescribed by the Legislature, with the approval of voters within the district. In addition, the last sentence of Section 9(b) expressly provides that a

“county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes.”

Against this pattern of millage and refer-enda strictures on local ad valorem taxation, the parties urge diametrically opposite positions. Appellant argues that the characteristics of a constitutionally authorized “special district” are indistinguishable from Pinellas County’s proposed municipal service taxing unit, but for the absence of voter approval, and that the resolution and its enabling legislation are in reality designed both to avoid the legislative necessity of setting a millage limitation and to circumvent the referendum requirement for special districts. Appellees argue that the two entities are fundamentally different, in that special districts are separate units of local government while municipal taxing units are, by virtue of the last sentence of Article VII, Section 9(b), mere methods by which counties can tax not only for the county services they provide, but also for identifiable municipal services they offer. To support their point, appellees suggest that if municipal service taxing units are equated with special districts then the last sentence of Section 9(b) is meaningless.

Disposition of these conflicting positions, and the resolution of this case, requires that we resolve three questions. The major one is whether the last sentence of Section 9(b) enables a county, without referendum, to levy a municipal service tax in addition to other county taxes on county residents in unincorporated areas, or whether it restricts additional county levies for services furnished only to municipalities.

In construing provisions of the Florida Constitution, we are obliged to ascertain and effectuate the intent of the framers and the people. State ex rel. Dade County v. Dickinson, 230 So.2d 130 (Fla.1969); Gray v. Bryant, 125 So.2d 846 (Fla.1960). Where possible, we are guided by circumstances leading to the adoption of a provision. In this case we have attempted to discern the rationale which led to the adoption of the last sentence in Article VII, Section 9(b). Its history in the 1966 Constitution Revision Commission and in the Florida Legislature supports appellee’s view of its import.

It is reasonably clear from the minutes and notes of the Commission, and from the reports of the Legislature, that the focus of the last sentence of Section 9(b) was the delivery of municipal-type services by counties to all county residents, rather than the more narrow delivery of services solely to residents of intra-county municipalities. In fact, a proposal to restrict the last sentence of Section 9(b) so that it would authorize additional taxation only to the extent a county furnished municipal services “in unincorporated areas” was defeated in the Legislature on the ground that it would prevent counties from offering municipal services as well within municipal boundaries. No historical material contradictory to these indicators has been called to our attention.

Consistent with this apparent rationale for the last sentence of Section 9(b), the Legislature has fashioned Sections 125.-01(l)(q) and (l)(r). In matters of constitutional interpretation, the Legislature’s view of its authority is highly persuasive.

“[W]here a constitutional provision may well have either of several meanings, it is a fundamental rule of constitutional construction that, if the Legislature has by statute adopted one, its action in this respect is well-nigh, if not completely, controlling.”

Both the historical and legislative interpretations are also consistent with our decision in State ex rel. Dade County v. Dickinson, 230 So.2d 130 (Fla.1969), where we construed Section 9(b) to authorize a county-wide tax up to 20 mills for the combined municipal and county services offered by Dade County. Indeed, our comments in that case may have precipitated passage of one feature of Section 125.01(1)(q). We there noted that the distinction between county and municipal purposes is an uncertain one, requiring immediate legislative attention. Section 125.01(1)(q), as enacted in 1971, expressly identified a non-exhaustive list of services which may be provided by municipal service taxing and benefit units.

For these reasons we conclude that the last sentence of Section 9(b) provides express authority for Sections 125.01(1)(q) and (1)(r), sanctioning taxing units as a method by which counties may tax to provide municipal services, within the 10 mill limit for “municipal purposes”, without voter approval. Wholly independent of this county taxing power is the authority provided for “special districts” to meet the need for special purpose services in any geographical area which may (but need not) be within one county, under legislatively-set and voter-approved millage limitations.

The second question to be answered in this litigation is whether the services offered by Pinellas County are in fact “municipal services”. The trial court specifically found that the services proposed in the • Pinellas County resolution do constitute municipal services, and that finding has not been challenged in this appeal.

Finally, we need to inquire whether the county may offer these services solely in its unincorporated area. Section 125.01(1)(r) expressly so provides. The answer to this question, however, also calls into play another constitutional provision— Article VII, Section 2—which requires ad valorem taxes to be imposed “at a uniform rate within each taxing unit”. Appellant notes that Pinellas County has designated itself as the governing body of the taxing unit, and that its proposal for a tax solely within its unincorporated areas obviously would not be “uniform” within county boundaries since it would not fall on the residents of intra-county municipalities. Appellees counter this contention by viewing the uniformity clause as applying to the objects of taxation — the subjects within the unit actually being taxed — rather than to the taxing authority itself. They suggest that a tax for Pinellas County’s municipal taxing service unit is uniform within the “taxing unit” — that is, the unincorporated area — and they support this view by reference to Article VIII, Section 1(h) of the Constitution and our decision in Alsdorf v. Broward County, 333 So.2d 457 (Fla.1976). Together these authorities require a lower county-imposed tax rate in municipalities which receive no substantial benefit from the services provided by the tax revenue, thereby destroying uniformity within the county notwithstanding that the tax is “county” imposed.

Appellees’ position is undoubtedly correct. Their view of the uniformity requirement in Article VII, Section 2 represents the only interpretation consistent with the whole Constitution. See Burnsed v. Seaboard Coastline Railroad, 290 So.2d 13 (Fla.1974).

We hold, therefore, that Sections 125.01(l)(q) and (l)(r), Florida Statutes (1975), are constitutional, and that the Pinellas County Commission’s resolution establishing a municipal service taxing unit in the unincorporated area of the county without voter approval is valid. The order of the Pinellas County Circuit Court is affirmed.

It is so ordered.

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

      .As originally enacted in 1971, this legislation provided authority for counties to create “special purpose districts”, without indicating whether referenda would be required. Ch. 71-14, § 1, Laws of Florida. The Attorney General later opined that Art. VII, § 9(b) of the Florida Constitution required a referendum. Ops.Att’y Gen.Fla. 072-162 and 073-178. In 1974 the Legislature amended these provisions by substituting “municipal service taxing or benefit units” for “special purpose districts”. Ch. 74-191, § 1, Laws of Florida. Despite an expression of intent in the legislation to the effect that § 125.01(l)(q) was enacted to extend taxing power under the second sentence of Art. VII, § 9(b), the Attorney General later advised that these units must be evaluated on the basis of their functions, not title, and that referenda were nonetheless required in the absence of a statutory directive to the contrary. Op.Att’y Gen.Fla. 075-24. In 1975 the Legislature added the last sentence of present § 125.01(l)(r) to provide specifically that referenda were not required. Ch. 75-63, § 1, Laws of Florida.

      . Services embraced within the taxing unit include road repair, fire protection, law enforcement, recreation, garbage collection and disposal, and sewage collection. Each of these services is specifically identified in § 125.-01(l)(q) as a type of “municipal service”.

      . Opposing appellant’s challenge are various Pinellas County officials, the Department of Revenue, the City of St. Petersburg, and the Florida League of Cities, Inc. Amicus briefs have also been filed by the parties in Tucker v. Underdown, 356 So.2d 251 (Fla.1978), involving common issues.

      . Although not relevant to this proceeding, we note that subsection 9(b) was amended in 1976 to authorize taxing powers for certain water management purposes. S.J.Res. 1061, Journal of the Senate (1975), approved by the voters of Florida on November 2, 1976.

      . The only other issue which warrants discussion is appellant’s contention that, under Art. VIII, § 1(f), Fla.Const., Pinellas County lacked the authority to create the municipal service taxing unit by “resolution” rather than by ordinance. This argument ignores § 125.01(1)(t), Fla.Stat. (1975), which implements Art. VIII, § 1(f) by authorizing a county to “[a]dopt ordinances and resolutions necessary for the exercise of its powers”.

      .The power to tax intangible personal property, which is not involved here, is available only to the state. Art. VII, §§ 1(a), 2 and 9(a), Fla.Const.

      . These materials are found in the files of the Florida Supreme Court Library, entitled “Chronological Development of 1968 Constitution. Art. VII, § 9—Local Taxes.”

      . See also § 200.071(3), Fla.Stat. (1975).

      . Greater Loretta Improvement Ass’n v. State ex rel. Boone, 234 So.2d 665, 669 (Fla.1969).

      . Of course, the Court limited to an aggregate of 10 mills the revenues to be derived from the delivery of municipal services by both the county and any municipalities within county boundaries.

      . Statutes have defined special districts as local units of special government (excluding school districts) created by authority of general or special law for the purpose of performing specialized functions within limited boundaries. §§ 165.031(5) and 218.31(5), Fla.Stat. (1975).

      . See note 2 above.


text:
    The MIAMI HERALD PUBLISHING COMPANY and John H. Payne, Petitioners, v. Judith PAYNE, Respondent.
    No. 51835.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied June 5, 1978.

      Francis E. Holden, Jr., Hialeah and Joseph P. Klock, Jr. of Steel, Hector & Davis, Miami, for petitioners.
    Robert M. Brake, Coral Gables, for respondent.
   ENGLAND, Justice.

By petition for writ of certiorari to the Third District Court of Appeal, we are asked to review a decision of that court obligating the Miami Herald to remit to Judith Payne’s attorney a portion of its wage payments to one of its employees, John Payne. Judith’s attorney had represented her in proceedings to dissolve the Paynes’ marriage and to enforce child support obligations under a dissolution order which required John to pay Judith’s attorney’s fee. When John failed to pay the attorney’s fee, Judith’s attorney initiated garnishment proceedings under Chapter 77, Florida Statutes (1975), against John’s employer, the Miami Herald. The Herald admitted indebtedness to John for $360.03 of disposable earnings, but asserted as a defense that John was a resident head of household whose wages were entirely exempt from garnishment.

Pursuant to the garnishment exemption statute, John filed a verified affidavit to establish his exemption as a resident head of household. The effect of filing this affidavit was to require Judith or her attorney to controvert John’s claim for head of household status, under oath, within two days, failing which the garnishment proceeding would by operation of law be terminated. No controverting affidavit has ever been filed. Rather, Judith’s attorney timely filed an unsworn motion challenging John’s exemption on the ground that the amounts due fell within the statutory exception to garnishment exemption for support orders, Section 61.12, Florida Statutes (1975), and requesting judgment against the Miami Herald. This motion eventually came before the trial judge for a hearing, which counsel for the Miami Herald did not attend. Events at that hearing formed the basis for the district, court’s decision that John’s and Judith’s attorneys entered into a stipulation for a continuous wage assignment which was binding on the Miami Herald.

In its decision the Third District Court of Appeal did not address the Miami Herald’s contention that the garnishment proceeding had terminated at the expiration of the time within which Judith or her attorney was required to controvert under oath John’s claim for head of household exemption. The point was properly preserved throughout the course of litigation, however, and we find it to be dispositive of this case. Section 222.12, Florida Statutes (1975), expressly states that if facts contained in the affidavit claiming exemption are not timely denied under oath, “the process [meaning the writ of garnishment] shall be returned, and all proceedings under the same shall cease.”

The Third District Court of Appeal has previously held that Section 222.12 must be strictly construed in favor of the debtor. Elvine v. Public Finance Co., 196 So.2d 25, 26 (Fla.3d DCA 1967).

“The exemption is for the benefit of the debtor, and its benefit may only be accorded to him by the statutory termination of the proceedings.”

We agree, from which it follows that all proceedings under the writ of garnishment terminated by operation of law upon the expiration of the time for filing a sworn denial to John’s affidavit. Upon that occurrence the trial court had jurisdiction only to return the writ of garnishment to Judith’s attorney; it was without authority to continue the proceeding and enter a judgment against the Miami Herald.

Since the petition for certiorari in this case was filed both by the Miami Herald and by John Payne, the question arises whether John benefits from the termination of the garnishment proceeding against the Miami Herald. We think that he does. It seems clear that a judicial proceeding begun on a writ of garnishment retains no vitality for any purpose when the initial process in the suit is returned and the proceeding by law has been mandated to “cease”. The trial court surely lacks the authority at that juncture to convert the original proceeding against the garnishee into an equity action against the garnished debtor. See Williams v. T. R. Sweat & Co., 103 Fla. 461, 137 So. 698 (1931).

It may be that Judith’s attorney will be required to seek successive writs of garnishment against John’s creditors, or that he will need to inaugurate a different form of litigation to enforce his judgment. Nonetheless, it is clear on this record that the proceeding he brought against the Miami Herald to garnish John’s wages was terminated by operation of law when he failed to comply with the statutory directive for defeating a debtor’s garnishment exemption.

The decision of the Third District Court of Appeal is quashed, and this case is remanded for further proceedings consistent with this opinion.

OVERTON, C. J., and BOYD and SUND-BERG, JJ., concur.

HATCHETT, J., dissents.

      . Miami Herald Publishing Co. v. Payne, 345 So.2d 730 (Fla.3d DCA 1977). This decision conflicts with Arnold v. Arnold, 292 So.2d 384 (Fla.3d DCA 1974), and with other cases which prescribe the requirements for a stipulation under Florida Rule of Civil Procedure 1.030(d). Our jurisdiction rests on Article V, Section 3(b)(3), Florida Constitution.

      . § 222.11, Fla.Stat. (1975). Other defenses asserted by the Miami Herald are not now at issue.

      . § 222.12, Fla.Stat. (1975).

      . id. Neither party challenges the validity of this statute in this proceeding.

      . At the hearing, the trial judge recognized that there could be no continuing garnishment of future wages, and suggested that John voluntarily assign a portion of his anticipated earnings to Judith’s attorney. This proposal, to which John neither agreed nor objected, was incorporated in the trial court’s final order. The district court’s decision, to the effect that a party’s silence in response to the court’s suggestion at a motion hearing can be construed as a “stipulation”, is at odds with Florida Rule of Civil Procedure 1.030(d), is in conflict with Arnold v. Arnold, 292 So.2d 384 (Fla.3d DCA 1974), and is disapproved.

      . See also Wolf v. Commander, 137 Fla. 313, 188 So. 83 (1939); Maryl v. Hernandez, 254 So.2d 47 (Fla.3d DCA 1971).


author: PER CURIAM. ADKINS, Justice, SUNDBERG, Justice,

text:
    Charles E. BUSH, d/b/a Bush Aviation Enterprises, Petitioner, v. TRANS WORLD AIRLINES, INCORPORATED, a Delaware Corporation, Respondent.
    No. 47562.
    Supreme Court of Florida.
    March 16, 1978.
    Rehearing Denied June 5, 1978.

      Ray Sandstrom of Sandstrom & Hodge, Fort Lauderdale, for petitioner.
    Joseph F. Jennings of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, and Sam Daniels, Miami, 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 should now be discharged. Accordingly, the writ of certio-rari is discharged.

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

ADKINS and SUNDBERG, JJ., dissent with opinions.

ADKINS, Justice,

dissenting.

I would quash the opinion of the District Court of Appeal and reinstate the verdict rendered by the jury.

SUNDBERG, Justice,

dissenting.

I dissent from the conclusion by the majority that the writ of certiorari heretofore granted in this cause should be discharged. Presumably it is meant that there is a lack of conflict in decision between the instant case and former decisions of this Court or of other district courts of appeal. For the reasons stated by Judge Mager in his dissent below I believe there to be clear conflict on the record proper with Cloud v. Fallis, 110 So.2d 669 (Fla.1959) and its progeny as cited in Judge Mager’s dissenting opinion. It is patent that the trial court’s order granting a new trial on grounds 1 B., 2 B., and 5 as set forth in the motion for new trial was predicated on a determination that the damages were excessive. Where such is the case, Cloud v. Fallis, supra, teaches us that in order to grant a new trial, a judge must find the verdict to be against the manifest weight of the evidence or must conclude that the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the evidence. By grounds 3 B. and 4 in the motion for new trial it was asserted respectively that the verdict as to damages was contrary to the manifest weight of the evidence and that the award was so excessive as to shock the conscience of the court. However, the trial court passed over each of those grounds in granting the motion for new trial.

Nevertheless, unlike Judge Mager, I would reverse only that part of the trial court’s order which grants a new trial as to liability. This is so because three other grounds of the motion for new trial relied upon by the trial court justify a remand for new trial on the issue of damages. Grounds 15 and 17 of the motion for new trial were predicated upon asserted erroneous jury instructions as to anticipated loss of profits. Ground 19 of the motion for new trial asserted error in denying the defendant’s motion to strike the testimony concerning profits.

It is manifestly within the province of a judge to correct errors committed by him during the course of a trial. In fact, such a determination, exhibited by granting a motion for new trial, is entitled to a strong presumption of correctness on appeal. Jordan Furniture Co. v. Goggans, 101 So.2d 114, 116 (Fla.1952); Bailey v. Lloyd, 62 So.2d 56 (Fla.1952). This is undoubtedly what happened in this case. The trial judge obviously perceived that, based on the testimony and evidence presented as to loss of anticipated profits, he had committed error in the particulars mentioned. Since those errors relate only to the issue of damages, it is proper that the new trial be limited to the issue of damages only. See Brinson v. Howard, 71 So.2d 172 (Fla.1954).

Accordingly, I would grant the petition for writ of certiorari and quash the decision of the District Court of Appeal, Fourth District, with directions to remand the cause to the trial court for a new trial on the issue of damages only.


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Mabel BERRY, Respondent.
    No. 52220.
    Supreme Court of Florida.
    April 4, 1978.
    Rehearing Denied June 5, 1978.
    Robert L. Shevin, Atty. Gen. and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for petitioner.
    Richard L. Jorandby, Public Defender, Jerry L. Schwarz and Craig S. Barnard, Asst. Public Defenders, West Palm Beach, for respondent.
   BOYD, Justice.

The District Court of Appeal, Fourth District, has certified these two questions as being of great public interest:

Is the Florida Standard Jury Instruction entitled “Worthless Check — Obtaining Property F.S. 832.05(3)”, set forth on pages 203 and 204 of the Second Edition, defective because it fails to instruct the jury that intent to defraud is an indispensable element of the crime of obtaining property in return for a worthless check?
In a prosecution for violation of Section 832.05(3), Florida Statutes (1975), where the trial court has instructed the jury in accordance with the Florida Standard Jury Instruction entitled “Worthless Check — Obtaining Property F.S. 832.-05(3)”, as set forth on pages 203 and 204 of the Second Edition, is fundamental error committed when the trial court does not additionally instruct the jury that intent to defraud is an indispensable element of the crime of obtaining property in return for a worthless check?

The decision of the district court passed upon these questions, giving us jurisdiction by certiorari.

The criminal offense of obtaining property in return for a worthless check, described in Section 832.05, Florida Statutes, requires, as an essential element, knowledge of insufficient funds on deposit in the bank on which the check is drawn, but it does not require intent to defraud. Mabel Berry was charged with the crime and, at her trial, offered the defense that she had given the check in good faith. The judge gave the jury the applicable standard instruction, which, in keeping with the statute’s description, did not list “intent to defraud” as an element. Berry was convicted and appealed, raising as fundamental error the failure to charge the jury on “intent to defraud.”

The district court reversed on the authority of Prince v. State, 333 So.2d 63 (Fla. 4th DCA 1976). In that case the court had held fraudulent intent to be an element of the offense in reliance on Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 (1927). Anderson, however, construed not the present statute, but its predecessor, long ago repealed. And, in contrast to the present statute, the predecessor, on its face, required intent to defraud. The holding of Prince, then, is incorrect, unless fraudulent intent is required in some way outside the present statute.

Berry argues just that. Without the element of fraudulent intent, she claims the statute is unconstitutional under Article I, Section 11 of the Florida Constitution (1968). That provision bars imprisonment for debt, except in cases of fraud.

The State responds that Berry’s contention has been answered, against her, already, by this Court. We agree. In Ennis v. State, 95 So.2d 20 (Fla.), cert. denied, 355 U.S. 868, 78 S.Ct. 117, 2 L.Ed.2d 74 (1957), the Court addressed the issue of whether the present statute was unconstitutional under Section 16 of the Declaration of Rights to the Florida Constitution, a provision identical to the qualified ban of “imprisonment for debt” in the 1968 Constitution. The Court upheld the statute. It found its purpose to be not the collection of debts, but the banning of the circulation of worthless commercial paper because of the danger it poses to the flow of trade, in general, and the mischief it works in the collection procedure between banking institutions. There is nothing in this record to justify a departure from the Ennis finding of statutory purpose.

Reduced to their essence, the certified questions ask whether intent to defraud is an essential element of the crime of obtaining property by a worthless check. Under the plain language of the statute defining the crime, it is not, and no reason has been advanced in this case for its inclusion. Our answer, then, to both certified questions is “no”: the standard jury instruction is not defective; it was not fundamental error for the trial court to omit an “intent to defraud” charge.

The decision of the district court in this cause is quashed and the case is remanded with the direction to reinstate the conviction. Prince v. State, 333 So.2d 63 (Fla. 4th DCA 1976), is overruled.

It is so ordered.

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

      . Berry v. State, 345 So.2d 828 (Fla. 4th DCA 1977).

      . Art. V, § 3(b)(3), Fla.Const.

      . (3) Obtaining property in return for worthless checks, etc.; penalty. — (a) It shall be unlawful for any person, firm or corporation to obtain any services, goods, wares or other things of value by means of a check, draft or other written order upon any bank, person, firm or corporation, knowing at the time of the making, drawing, uttering, issuing or delivering of said check or draft that the maker thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.

      . “Worthless Check — Obtaining Property,” F.S. 832.05(3), Standard Jury Instructions in Criminal Cases, 2d Ed., p. 203, 204.

      . Ch. 9328, Laws of Florida (1923).


author: PER CURIAM.

text:
    Neil D. MacMILLAN, Appellant, v. STATE of Florida, County of Dade, Appellees.
    No. 52084.
    Supreme Court of Florida.
    April 27, 1978.
    Lawrence G. Ropes, Jr., Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Janet Reno, State’s Atty., and George Vol-sky, Asst. State’s Atty., Miami, for appel-lees.
    William L. Richey of Steel, Hector & Davis, Miami, for Florida Power and Light Co.
    W. Robert Fokes, Tallahassee, for Florida Cable Television Association, Inc.
    William P. Burns, Miami, for Miami-Dade Water and Sewer Authority.
    James W. Vance and Peter R. Tanzy, West Palm Beach, for Lake Worth Utilities Authority.
    Michael E. Watkins, City Atty. of Turner, Hodson, Watkins & Lynn, Homestead, for City of Homestead, Dade County, amici curiae.
   PER CURIAM.

This cause is before us on direct appeal to review the judgment of the County Court, in and for Dade County, upholding the constitutionality of Section 812.14(3), Florida Statutes (Supp.1976).

Appellant was charged by an information dated December 27,1976, with trespass and larceny with relation to utility fixtures in violation of Section 812.14, Florida Statutes (Supp.1976). More specifically, the information charged that the appellant had, through the use of some device, used electricity owned by Florida Power and Light without first letting it pass through a meter provided by Florida Power and Light and used for measuring and registering the quantity of electricity passing through same. On January 25, 1977, the appellant was arraigned and pled not guilty to the charge. Appellant waived his right to jury trial and, after the close of the state’s case, moved for a directed verdict, arguing, inter alia, that the statute was unconstitutional as it applied to homeowners. The motion was denied, and the appellant was convicted and sentenced to thirty days. His motion for a stay pending appeal was granted.

A motion for new trial was filed by the appellant. The motion alleged that Section 812.14, Florida Statutes (Supp.1976), was unconstitutional in that it placed

“an untenable burden upon [appellant]property-owner by requiring him to be the custodian, caretaker, insuror, and protector of the personal property of the ‘Utility’ (such as a meter or meters) attached to the real property in the actual possession of the [appellant] and setting forth therein that the said [appellant] is thereby prima-facie [sic] guilty of an intent to violate said statute if there is found to be existing connection, wire, conductor, meter alteration, or any device which effects the diversion of service of the ‘Utility.’ ”

The motion further alleged that the statute violated the Fifth Amendment privilege against self-incrimination. The trial judge denied the appellant’s motion but stated no reasons for the denial in his order. An appeal was taken by the appellant to the Circuit Court for Dade County. The appellant assigned as error, inter alia, the trial court’s determination that Section 812.14, Florida Statutes (Supp.1976), was constitutional. The Circuit Court, holding that the trial judge directly passed upon the constitutionality of Section 812.14, Florida Statutes (Supp.1976), ordered that the cause be transferred to this Court.

The primary question presented for our consideration is the constitutionality vel non of Section 812.14(3), Florida Statutes (Supp.1976), which establishes a presumption of intent to violate and of the violation of Section 812.14, Florida Statutes (Supp. 1976). The challenged statutory presumption provides:

“(3) The existence, on property in the actual possession of the accused, of any connection, wire, conductor, meter alteration, or any device whatsoever, which effects the diversion or use of the service of a utility or a cable television service or community antenna line service or the use of electricity, gas, or water without the same being reported for payment as to service or measured or registered by or on a meter installed or provided by the utility shall be prima facie evidence of intent to violate, and of the violation of, this section by such accused. The use or receipt of the direct benefits from the use of electricity, gas, water, heat, oil, sewer service, telephone service, telegraph service, radio service, communication service, television service, or television community antenna line service derived from any tampering, altering, or injury of any connection, wire, conductor, device, altered meter, pipe, conduit, line, cable, transformer, amplifier, or other apparatus or device shall be prima facie evidence of intent to violate, and of the violation of, this section by the person or persons so using or receiving such direct benefits.”

Appellant argues that this statutory presumption is unconstitutionally irrational and arbitrary in that it fails to meet the rational connection test. Appellee argues that the challenged section meets the tests of due process established by this Court and the Supreme Court of the United States.

The Supreme Court of the United States, in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1549 (1943), established the “rational connection” test as the primary method of determining the constitutional validity of statutory presumptions. Tot v. United States, supra, involved a federal statute which made it a crime for one previously convicted of a crime of violence or a fugitive from justice to receive any firearm in an interstate transaction and which further provided that possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm was shipped, transported or received, as the case may be, by such person in violation of this act. Utilizing the “rational connection” test, the Supreme Court of the United States held that the presumption created by this law was violent and inconsistent with any argument drawn from experience and explained the due process limitations placed on authority of Congress to prescribe what evidence is to be received in the courts as follows:

“The rules of evidence, however, are established not alone by the courts but by the legislature. The Congress has power to prescribe what evidence is to be received in the courts of the United States. The section under consideration is such legislation. But the due process clauses of the Fifth and Fourteenth Amendments set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated. The question is whether, in this instance, the Act transgresses those limits.
“Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.” Tot v. United States, supra, at 467, 468, 63 S.Ct. at 1245.

Cf. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); Fitzgerald v. State, 339 So.2d 209 (Fla.1976).

More recently, in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court held invalid a federal act which provided. that a defendant’s possession of marijuana shall be deemed sufficient evidence that the marijuana was illegally imported or brought into the United States and that the defendant knew of the illegal importation unless the defendant explains his possession to the satisfaction of the jury. Therein, the Supreme Court emphasized

“that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. And in the judicial assessment the congressional determination favoring the particular presumption must, of course, weigh heavily.” (Emphasis supplied.) Supra at 36, 89 S.Ct. at 1548.

Subsequently, in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), the Supreme Court confronted the question of whether a presumption which meets the “more likely than not” test must also satisfy the “beyond a reasonable doubt” standard and concluded:

“The teaching of the foregoing cases is not altogether clear. To the extent that the ‘rational connection,’ ‘more likely than not,’ and ‘reasonable doubt’ standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance. What has been established by the cases, however, is at least this: that if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process.” Barnes v. United States, supra, at 843, 93 S.Ct. at 2361.

Sub judice, we need not consider whether the subject statutorily created presumption meets the reasonable doubt standard since we agree with appellant that it does not satisfy the rational connection standard. Under the challenged statute, the presumed fact of intent to violate and of violation comes into play merely upon proof that the property wherein diversion of some sort has occurred is in the actual possession of the accused or upon proof that the accused has received direct benefit from a utility. We find that it cannot be said with substantial assurance that the presumed fact that defendant is guilty of violation of Section 812.14, Florida Statutes (Supp.1976), is more likely than not to flow from the proved fact of possession of the premises or receipt of benefits. One in actual possession of property or one receiving direct benefits would not more likely than not be the guilty person. Such an inference is irrational and arbitrary. Common experience tells us that the device or apparatus tampered with or altered is generally on the outside of a building and accessible to anyone; that the direct benefits from the use of electricity, gas, water, heat, oil, sewer service, telephone service, telegraph service, radio service, communication service, television service, or television community antenna line service are commonly derived by any occupant of the premises, including family members, business partners, associates, employees and others; and that the billing which would constitute notice of possible alteration is done no more frequently than monthly. Furthermore,' there are many ways to make an alteration which are so simple in nature that a prankster, a vandal or an angry neighbor could utilize them to cause the one in possession of the premises to receive benefits therefrom without his knowledge and, thereby, subject him to the presumption.

Since we find subsection 3 to be unconstitutional, we must proceed to determine its severability from Section 812.14, Florida Statutes (Supp.1976).

Relative to the question of severability of an invalid subsection from a statutory section, this Court, in High Ridge Management Corp. v. State, 354 So.2d 377 (Fla.1977), stated:

“The mere fact that the act does not contain a severability clause does not mandate a determination that the entire statutory provision should be condemned. State ex rel. Limpus v. Newel], 85 So.2d 124 (Fla.1956). If an unconstitutional portion of an act can be logically excised from the remaining valid provisions without doing violence to the legislative purpose expressed in the valid portions, if such legislative purpose can be accomplished independently of the invalid provisions, if the act is complete in itself after striking the invalid provisions and if the valid and invalid provisions are not so inseparable that the Legislature would not have enacted the one without the other, it is the duty of the Court to give effect to that portion of the statute which is not constitutionally infirm. . ” Supra at 380.

The deletion of subsection 3 from Section 812.14, Florida Statutes (Supp.1976), does not disturb the valid portions of this statutory provision and leaves intact a workable statute and is, therefore, severable.

We have carefully reviewed the remaining issues in light of oral argument, the briefs and the record and find them to be without merit.

Accordingly, the judgment of the trial court is reversed, and this cause is remanded for a new trial.

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

ENGLAND, J., dissents.


text:
    Richard A. PAYNE, Petitioner, v. STATE of Florida, Respondent.
    No. 52901.
    Supreme Court of Florida.
    April 27, 1978.

      Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The District Court of Appeal, Fourth District, has certified its decision in this case for consideration of the same question which was posed in Alvarez v. State, 349 So.2d 688 (Fla. 4th DCA 1977), that is whether a sentence of imprisonment for a term of years greater than the life expectancy of the sentenced person is lawful under Section 813.011, Florida Statutes (1973), and Section 812.13, Florida Statutes (1975, 1977). In the Alvarez opinion, we answered this question in the affirmative. Alvarez v. State, 358 So.2d 10 (Fla.1978), opinion filed April 4, 1978.

Accordingly, the decision of the District Court of Appeal, Fourth District, in the instant case which found lawful a sentence of one hundred one (101) years imprisonment for robbery pursuant to Section 812.-13, Florida Statutes (1977), is approved.

It is so ordered.

OVERTON, C. J., and ADKINS, SUND-BERG and HATCHETT, JJ., concur.

ENGLAND, J., dissents.

      . Payne v. State, 356 So.2d 10 (Fla. 4th DCA 1977).