author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. DeCARLO, Judge

text:
    Thomas TAYLOR v. STATE.
    6 Div. 924.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.
    Ronald H. Strawbridge, Vernon, Fite, Davis & Fite, Hamilton, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Felony indictment and jury’s conviction for larceny of some automobile accessories. The trial court imposed sentence of imprisonment for five years. This appeal is from the judgment.

Appellant filed a pretrial motion to suppress the fruits of a search that violated his constitutional rights, both federal and state. The Fourth Amendment, Constitution of the United States, prohibits unreasonable searches and seizure; and with like effect is Article 1, § 5, Alabama Constitution, 1901.

Evidence on the preliminary motion to suppress was taken orally before the court and outside the presence of the jury. The trial court thereupon overruled the motion, and on the trial, free of objection on constitutional grounds, admitted the fruits of the search and seizure in evidence and also identifying evidence of the seized accessories.

It appears from the evidence on the motion to suppress that the chief of police of Sulligent, along with two other supporting officers, who were present at the chief’s request, went to the trailer (mobile) home of defendant, who was there at the time; that the chief made known to defendant that he had a search warrant and proceeded to search the premises and found two automobile tires and two wheels, described in the indictment, leaning up against the mobile home. Both were covered up and hidden from view.

It appears further that the chief of police was dead when the motion to suppress was heard. It further appears that the purported search warrant in possession of the officers was lost, although search had been made therefor, and was not available. There was no evidence adduced by the State as to the contents of the instrument in the hands of the officer at the time he appeared at defendant’s home. There was no evidence as to the contents of any affidavit, if there was one, that authorized the issuance of a search warrant. For aught appearing, the instrument in the hands of the chief of police was a nullity and the search and seizure violated defendant’s constitutional rights and was without authority of law.

Under such circumstance, the court committed error in overruling the motion to suppress the evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

Defendant’s right of privacy guaranteed by the Fourth Amendment, Federal Constitution, supra, is enforcible against the States through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, supra.

Appellee (the State) here asserts that Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336, supports its contention in its brief here filed that as a matter of law and procedure the accused’s failure to object on constitutional grounds to the admissibility of the accessories and identifying evidence at the trial constituted a waiver on the part of the accused, and the fact that the motion had been overruled did not relieve accused or his counsel from the duty of objecting at the trial to the admissibility of the evidence on the ground that it was obtained by unreasonable search and seizure.

The court in Carpenter referred to the federal rule as stated in Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321:

* * * It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary again to object when such evidence is offered at the trial. * * * But the rule is one of practice and is not without exceptions, nor is it to be applied as a hard-and-fast formula to every case regardless of its special circumstances.’ ”

In Carpenter, this Court further observed:

“Even if we followed the Federal rule (to which Cates, J., inclines), we would hold that under the special circumstances of this case an objection at the trial was necessary to preserve error for review in this court, since appellant failed to establish by any testimony whatsoever in the hearing on his pretrial motion that this money was obtained by an invasion of his right to privacy.”

Thus it appears that defendant in Carpenter failed to prove by any testimony at the hearing on the motion to suppress that the money seized from Carpenter’s person was the result of an invasion of privacy. In the absence of such proof, the trial court was fully justified in overruling the motion to suppress.

The legality of the search of Carpenter, upon whom the alleged stolen money was found, was never before the trial court pri- or to trial for that the defendant failed to establish illegality by any testimony whatsoever, thus, there were special circumstances.

This Court further observed in Carpenter:

“Although appellant objected to ‘anything concerning this money’ after Officer Hutchins testified that he had taken the money from appellant’s person, this did not, under the circumstances of this ease, relieve appellant of the duty of objecting to evidence offered subsequent to this objection concerning the money, on the specific ground that the money was obtained by unreasonable search and seizure. Thus, no error can be predicated on the introduction of Mr. Weaver’s testimony, since it was not objected to on the specific ground that it was obtained by unreasonable search and seizure. Further, we are of the opinion that appellant’s rights were not violated by the introduction of Weaver’s testimony, since the fact that the money was obtained by a search of the appellant’s person at the time of his arrest was put in evidence prior to this evidence, without objection. “We conclude that no error resulted in the introduction of evidence which allegedly was obtained by unreasonable search and seizure.”

We think that it was unnecessary under the facts and rulings in Carpenter for this Court to observe:

“We are of the opinion that the better rule is that, as a matter of law and procedure, the accused’s failure to object to the admissibility of evidence at the time it is presented by the prosecution constitutes a waiver on the part of the accused, and the fact that preliminary motions for suppressing evidence and quashing warrants or affidavits have been overruled by the court does not relieve the accused or his counsel from the duty of objecting at the trial to the admission of evidence on the ground that it was obtained by unreasonable search and seizure. . . .”

It is to be noted that when Carpenter was decided, this Court was composed of three judges, one of whom did not sit, and the other was inclined to favor the Federal rule, leaving only one member of the Court in harmony with the observation, supra, as to the better rule.

We hold that once the court has ruled on a motion to suppress, supported by competent evidence as to the validity vel non of the search and seizure, it is not necessary for the defendant again at the trial to object to the evidence on constitutional grounds, and that the failure to do so does not constitute a waiver. The ruling on the motion preserves the point. In other words, we adhere to the Federal rule in Lawn, supra. No special circumstances existed as in Carpenter. Any pronouncement in Carpenter contrary to the holding in the preceding paragraph is overruled.

For the error, supra, in overruling the motion to suppress and in admitting at the trial identifying evidence concerning the seized accessories, we reverse the judgment and remand the cause.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

CATES, P. J., and TYSON, BOOKOUT, JJ., concur.

HARRIS, J., concurs in the result.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

I am not willing to overrule Carpenter, supra, under the facts of this case.

During the suppression hearing and trial, no objections were made to any testimony concerning the search. In this posture the present facts seem to parallel those of Carpenter. Due to the unique circumstances outlined in the present matter, the requirement of a timely objection is reasonable.

I respectfully dissent.


source: Caselaw Access Project

author: PER CURIAM. MADDOX, Justice

license: Public Domain

text:
    In re Thomas TAYLOR v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1886.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, petitioner.
    James K. Davis, Hamilton and Ronald H. Strawbridge, Vernon, for respondent.
   PER CURIAM.

Writ quashed as improvidently granted.

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

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

I would reverse the Court of Criminal Appeals.

Thomas Taylor was convicted of larceny of two automobile tires and two car wheels. The Court of Criminal Appeals reversed his conviction on the ground that the tires and wheels were obtained by an illegal search. Taylor filed a motion to suppress, which included a ground that the State had produced no search warrant for the search of his house and surrounding areas. The State, at the hearing on the motion to suppress, admitted that the search warrant and affidavit could not be located. However, two deputy sheriffs who helped conduct the search with the Chief of Police of Sulligent, who had died in the meantime, both testified that they had a search warrant at the time. The defendant first testified that there was no search warrant presented to him, but later, in answer to a question, testified as follows:

“A. Henry [Henry O’Mary, deputy sheriff for Lamar County] came into my house with search warrant to search for some tires and stolen property, which he showed me a warrant and while he was talking the tires were found and brought around to the front of the trailer and he asked me to come out' and the tires were there and this guy from Martin Chevrolet was there. They asked me if I had seen them before and I said no and he identified them, I guess, as being his.” [Emphasis added.]

The Court of Criminal Appeals, in its opinion, made a finding that:

“There was no evidence adduced by the State as to the contents of the instrument in the hands of the officer at the time he appeared at defendant’s home.”

It appears to me that the Court of Criminal Appeals may have inadvertently overlooked the testimony of Taylor himself to the effect that there was a search warrant and that the officers were looking for “some tires and stolen property.” I think therefore, that the existence of a warrant was adequately shown.

Unquestionably, it was proper for the trial court, upon proof of the loss of the search warrant, to take parol evidence relating to it. Thomas v. State, 37 Ala.App. 118, 66 So.2d 103 (1953), cert. denied, 259 Ala. 212, 66 So.2d 105 (1953), and the many cases therein cited.

The Court of Criminal Appeals states that “For aught appearing, the instrument in the hands of the chief of police was a nullity and the search and seizure violated defendant’s constitutional rights and was without authority of law.” This holding, it seems to me, ignores the fact that there was sufficient evidence that a search warrant was, in fact, shown to Taylor. Furthermore, it misplaces the burden of proof. The burden of establishing that the search was improper and that the evidence secured thereby should be suppressed was clearly on Taylor, the moving party. United States v. Gera, 409 F.2d 117 (3 Cir., 1969); United States v. Wright, 468 F.2d 1184, 1186 (6th Cir., 1972). In Rogers v. United States, 330 F.2d 535 (5 Cir., 1964), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186, the Court noted:

“There is one final question. The defendant maintains that he was unfairly prejudiced by being saddled with the burden of proof during his hearing on his motion to suppress evidence. During the hearing the judge stated it was his opinion that defendant, as the moving party, bore the burden of proof. At the end of the hearing, the district judge stated that he was willing to withdraw his opinion on burden of proof, and, giving the defendant the benefit of the doubt, he still ruled against the motion to suppress. We see no reversible error.
“As is true in so many other situations, the burdens of persuasion and of producing evidence in motions for the suppression of evidence have been badly confused. The burden of persuasion is properly and permanently placed upon the shoulders of the moving party. When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case. Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Joseph v. United States, 5 Cir. 1956, 239 F.2d 524; Wilson v. United States, 10 Cir. 1955, 218 F.2d 754; United States v. Walker, supra; United States v. Okawa, D.C.Haw. 1961, 26 F.R.D. 384. In the areas of coerced confessions and illegal searches and seizures this rule is reinforced by the usual presumption of proper police conduct. 1 Wharton’s Criminal Evidence 238 (1955); 22A C.J.S. Criminal Law § 589(1), p. 355.
“The moving party must also bear the burden of producing evidence. If the essential evidence is not brought to light the motion must fail. It is true, however, that in asserting an illegal arrest the defendant must satisfy this burden by showing that the arrest was made without a warrant. While an arrest pursuant to a warrant is prima facie evidence of probable cause, Chin Kay v. United States, 9 Cir. 1962, 311 F.2d 317, 321; Batten v. United States, 5 Cir. 1951, 188 F.2d 75, 77, the prosecutor should be forced to come forward with evidence of probable cause in the absence of a warrant. Plazola v. United States, 9 Cir. 1961, 291 F.2d 56, 58; Wrightson v. United States, 1951, 95 U.S.App.D.C. 390, 222 F.2d 556. Without such a rule there would be little reason for law enforcement agencies to bother with the formality of a warrant. Furthermore, the evidence comprising probable cause is particularly within the knowledge and control of the arresting agencies.”

In United States v. Various Gambling Devices, 478 F.2d 1194, 1199 (5 Cir. 1973), the Court said:

“. . . Since claimant concedes that the seizure was made under warrant, he bears the burden of establishing the illegality of the search. United States v. Crane, 445 F.2d 509 (5th Cir. 1971); United States v. Thompson, 421 F.2d 373 (5th Cir. 1970), vacated on other grounds, 400 U.S. 17, 91 S.Ct. 122, 27 L.Ed.2d 17.”'

Additionally, public officials are presumed to perform their duties. This rule is so well founded, and has been a part of our jurisprudence for so long, and is so universally recognized, that it needs no citation of authority. Harris v. State, 257 Ala. 3, 5, 60 So.2d 266, 267 (1952).

For a better understanding of the facts, I examined the original record in this case. Based upon that examination, I believe that the Court of Criminal Appeals erroneously held that the trial court was in error in refusing to grant the defendant’s motion to suppress. Consequently, I would reverse.

I do not discuss the other holding of the Court of Criminal Appeals that the defendant did not have to object, during the trial, to the admission of the tires and wheels into evidence. I do note that the Court of Criminal Appeals refused to follow Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336 (1965), which held that the better rule is that, as a matter of law and procedure, the accused’s failure to object to the admissibility of evidence at the time it is presented constitutes a waiver, even if a motion to suppress has been previously filed. However, I express no opinion on this point.


author: PER CURIAM.

text:
    Carl Louis COPPOLA, Petitioner, v. STATE of Florida, Respondent.
    No. 47905.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Rehearing Denied Oct. 12, 1976.
    Bruce M. Lyons, of Di Giulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauder-dale, and Archie M. Odom, of Farr, Farr, Haymans, Moseley & Odom, Port Charlotte, for petitioner.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We tentatively granted certiorari and dispensed with oral argument in this case in order to resolve an apparent conflict between the decision of the Second District Court of Appeal, reported at 318 So.2d 181, and the decision of this Court in Negron v. State, 306 So.2d 104 (Fla.1974). After reviewing the matter we have concluded that there is no decisional conflict to vest this Court with jurisdiction under Article V, § 3(b)(3) of the Florida Constitution.

In this case, a criminal defendant requested and was granted a trial continuance in a motion which specifically waived his right to a speedy trial under Florida Rule of Criminal Procedure 3.191. After the passage of more than 90 days, defendant filed a motion for discharge which the trial judge denied. The district court affirmed the trial judge’s denial, holding that Rule 3.191(d)(3) did not entitle defendant to an immediate discharge.

In Negron, the State was granted a continuance without any waiver by the defendant of speedy trial rights under the Rule. We there held that a motion for discharge must be granted after the passage of 90 days. In Negron, the Court had under consideration a motion for discharge which fell within the mandate of Rule 3.191(d)(3) and beyond any of the exceptions contained therein. In this case there was a waiver within Rule 3.-191 (d) (2) (i) and the exception contained in Rule 3.191 (d) (3) (i) applied.

The writ of certiorari is discharged.

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

Rehearing denied;

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

ADKINS, J., dissents.


text:
    Joyce Lee HOLTON et ux., Petitioners, v. ATLANTIC DEPARTMENT STORES, INC., etc., Respondent.
    No. 46590.
    Supreme Court of Florida.
    June 4, 1976.
    Rehearing Denied Oct. 11, 1976.
    Carlton L. Welch, Jacksonville, for petitioners.
    Noah H. Jenerette, Jr. and Carle A. Fel-ton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for respondent.
   PER CURIAM.

In this cause we denied certiorari. On petition for rehearing we granted certiorari and set the cause for oral argument. After hearing argument of the parties and reviewing the briefs we are of the opinion that certiorari should not have been granted. The writ is hereby discharged, Fla. App., 302 So.2d 782.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND and HATCH-ETT, JJ., concur.

SUNDBERG, J., dissents.


author: HATCHETT, Justice. ADKINS, Justice

text:
    Ralph Anthony CIONGOLI, Petitioner, v. STATE of Florida, Respondent.
    No. 47630.
    Supreme Court of Florida.
    June 30, 1976.
    Rehearing Denied Oct. 13, 1976.

      Craig R. Wilson, of Ruffolo & Wilson, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., for respondent.
   HATCHETT, Justice.

A writ of certiorari issued in this cause on the basis of a supposed conflict between the decision of the District Court of Appeal, Fourth District, reported at 313 So.2d 41, and the decisions in Cribbs v. State, 297 So.2d 335 (Fla.App.2d 1974) and Hearns v. State, 262 So.2d 907 (Fla.App. 4th 1972). After hearing oral argument, we have concluded that the conflicting language is mere obiter dicta, and that the writ of certiorari should be discharged. See Lake v. Lake, 103 So.2d 639 (Fla.1958) (where “an opinion is rendered by a district court of appeal that prima facie conflicts with a decision of another district court of appeal ... on the same point of law, the writ of certiorari may issue and, after study, may be discharged” At 643). On the merits, we neither approve nor disapprove the District Court’s holding, or anything said in its opinion.

Petitioner Ciongoli and another stand accused of robbery. Shortly after the robbery, the victims identified petitioner as one of the perpetrators. At a pre-trial hearing eight months later, the trial judge concluded that the identification procedure, a two on two show up, was impermissibly suggestive, and ruled that testimony as to the out of court identification on the day of the robbery would not be admitted at trial. From this ruling, the prosecution took an interlocutory appeal to the District Court of Appeal, Fourth District. The District Court “reverse[d] and vacate [d] the order suppressing evidence of the police station identification,” at 44, saying:

The observation and ready identification of the accused by the witnesses so soon after the alleged robbery appears to us to be conducive to an accurate identification and entitled to be given more weight, by both the court and the jury, than the difficulty by the witnesses in making an identification after the lapse of eight months, especially in view of the change in appearance of the accused. At 45 (footnote omitted).

In addition, the District Court expressed the view that there is no “evidentiary rule of exclusion applicable to suggestive pre-indictment or pre-trial identification procedures.” At 44. In a footnote, the District Court went on to say that its “conclusion in this case is in conflict with the views expressed in Cribbs." At 44 n. 3. Although the views expressed in Cribbs and the views expressed in the opinion below are not consonant in every particular, we conclude there is no direct conflict between the holdings of those decisions, and no conflict within the meaning of the Florida Constitution, art. V, § 3(b)(3) (1975).

In its earlier decision in Hearns v. State, supra, the District Court of Appeal, Fourth District, reversed a robbery conviction, not because the out of court identification was improper, although that was assumed, but because the “in-court identification was prejudicially tainted by an illegal lineup proceeding.” At 907. Likewise in Cribbs v. State, supra, the trial court ruled “ T am going to suppress the line-up but not the in-court identification.’ ” At 336. On appeal, the District Court of Appeal, Second District, vacated Cribbs’ conviction on the ground that “the in-court identification is presumed to be tainted”, id., by illegal out of court identification unless the prosecution demonstrates “an independent basis”, id., for the in-court identification. Both Cribbs and Hearns stand for the proposition that a witness’ in-court identification of a criminal defendant cannot be based on an illegal out of court identification.

The only issue in the present case was the threshold question whether the out of court identification procedures were illegal. When the court below concluded that the out of court identification in the present case was proper, no other question remained for decision. Only if the District Court had concluded that the out of court identification was illegal, would it have been necessary or appropriate for it to reach the question which arose in Cribbs and in Hearns. Since the District Court held that the out of court identification was legal, it was impossible for its decision to conflict directly with the rule established by Cribbs and Hearns. Without expressing any view as to the merits either of the decision below or of the Cribbs-Hearns rule, we conclude that there is no direct conflict and that we therefore lack jurisdiction in this matter.

The petition for writ of certiorari is discharged.

OVERTON, C. J., and ROBERTS and ENGLAND, JJ., concur.

SUNDBERG, J., concurs in result only.

ADKINS, J., dissents with an opinion.

BOYD, J., dissents and concurs with ADKINS, J.

ADKINS, Justice

(dissenting).

I respectfully dissent.

This Court will take jurisdiction where statements of the law conflict with statements of earlier cases, even though the statement from the earlier cases can be regarded as obiter dictum. As stated in Twomey v. Clausohm, 234 So.2d 338 (Fla.1970),

“We, therefore, detect a conflict and potential confusion in the law generated by the quoted statement from the decision under review and the statements quoted from the other decisions. Nielsen v. Sarasota, 117 So.2d 731 (Fla.1960). It is to eliminate this apparent confusion that we have taken jurisdiction. Even if the statement from one of the earlier cases can he regarded as obi-ter dictum the conflict still establishes our jurisdiction. Sunad, Inc. v. Sarasota, 122 So.2d 611 (Fla.1960).” (Emphasis supplied.) pp. 339-40.

BOYD, ]., concurs.

      . Under our decision in State v. Smith and Figgers, 260 So.2d 489 (Fla.1972), the State had no appeal as of right. In order to reach the merits, the District Court evidently treated the appeal papers as a petition for writ of common law certiorari.

      . At p. 44, the District Court said:
      We do not reverse because the trial judge . . . did not . . . presume an improperly suggestive pre-trial identification taints and conditionally excludes an in-court identification.


author: SUNDBERG, Justice. OVERTON, Chief Justice ROBERTS, Justice

text:
    Michael Edward PROVENCE, Appellant, v. STATE of Florida, Appellee.
    No. 46671.
    Supreme Court of Florida.
    July 21, 1976.
    Rehearing Denied Oct. 11, 1976.

      James A. Gardner, Public Defender, and Charles H. Livingston, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   SUNDBERG, Justice.

This is a direct appeal from a conviction of first degree murder and a sentence of death rendered in the Manatee County Circuit Court. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

On Thursday, October 11, 1975, at about 9:00 p. m., Peter Dent and three other men, including the appellant, left Washington, D.C. for Florida in order to buy marijuana. Dent was driving a Mercedes which he had contracted with an auto drive-away service to transport from Washington to Dallas. After stopping in Charlottesville, Virginia (which Provence and Dent had visited earlier in the week so that the latter could pick up some money), the car proceeded to St. Petersburg, arriving at about 3:00 p. m. on Friday, October 12, 1975. After visiting a bar called “Shadraek’s”, where they met a friend of the appellant named “Mel,” the quartet checked into the Sun Tan Motel, where Dent, who had driven the entire trip and was “speeding” on amphetamines, remained. The other three men returned to the bar. Later they drove around the St. Petersburg area, stopping at a Western Auto store so that appellant, accompanied by one of the others, could purchase a knife. He purchased a hunting knife rather than a more limber fishing knife, saying that the latter “wouldn’t do” or words to that effect.

Provence and the two other men (whose names were Nistendirk and Rose) returned to the motel between 7:00 and 7:30 p. m. Provence and Dent left in the Mercedes for an approach to the Skyway Bridge in order to make the “buy” at 8:00 p. m. pursuant to a conversation appellant had allegedly had with the seller in the afternoon. (Whether or not Provence had suggested the Florida trip is in dispute, but it is clear that the journey was made in order to exploit his Florida “contacts” and that only he knew the identity of the drug seller.) Dent, who customarily carried a gun, did not take his pistol to the situs of the transaction.

Provence returned to the motel about 9:30 or 10:00 p. m. According to Nisten-dirk, the appellant was jubilant, “flashed a wad of money,” said that he had received $1,000 for arranging the transaction and another $150 from Dent, who Provence said had proceeded to Dallas. The remaining trio flew back to Washington from Tampa International Airport the next day.

Dent’s body was found on the approach to the Skyway Bridge by a passing motorist sometime after 7:00 p. m. on Friday, October 12, 1975. The body, located between the seawall and the road, had been stabbed eight times. Dent’s trousers and belt buckle were undone. A wallet located beside the body contained $50.00 and some identification. The Mercedes was found, apparently abandoned, behind a closed bar some two or three blocks from the Sun Tan Motel. Blood was found on both the inside and outside of the car, and the headliner was cut. Fingerprints identified as Provence’s were found on the steering wheel, and Dent’s prints were found around the driver’s door.

Provence was subsequently detained by police in a remote part of Idaho for driving with an improper license plate. He was arrested after an NCIC computer check revealed he was wanted for murder in Manatee County, Florida.

At trial the State argued that Provence was guilty of first degree murder by premeditation (evidenced by his purchase of the hunting knife and by his luring the decedent, whom the State claimed he asked not to carry a gun, to the site of a fictitious “buy”) or by felony murder (killing Dent while robbing him of some $1,500 cash). Appellant claimed that he had acted in self-defense. His story was that Dent, a trained Navy “Seal” who possessed a violent temper, had become impatient while waiting for the seller at the Skyway approach. The two then quarreled, with the decedent choking Provence, and the latter stabbing Dent to death in self-defense. Only after Dent’s death did the thought of taking his money enter the defendant’s mind, he testified. Appellant refused to name the party from whom the marijuana was to be purchased. The jury found Provence guilty of first degree murder and recommended that he be sentenced to life imprisonment. The judge sentenced appellant to death, however, apparently finding the existence of two aggravating circumstances under Section 921.141(5)(d) and (f), Florida Statutes, and no mitigating circumstances under subsection (6).

On appeal, Provence raises several points which he contends merit reversal of his conviction. We find that only one of these issues requires discussion.

During voir dire various members of the venire expressed reservations about the defendant’s right not to testify. At one point the following exchange took place:

“MRS. BALL: (Juror No. 1) May I ask a question?
“THE COURT: Yes, mam [sic],
“MRS. BALL: Why, if a person were charged with something and were not guilty, why would they not testify in their own defense?
“THE COURT: You’ve got me. (e.s.)
“MRS. BALL: It would seem to me they were guilty if they wouldn’t defend themselves.
“THE COURT: Let me explain, Mrs. Ball. The burden of proof is on the State of Florida to prove beyond a reasonable doubt that this defendant is guilty of this particular crime. For instance, if the State didn’t put on any evidence to show the guilt of this defendant you could not bring in a guilty verdict. Do you understand?
“MRS. BALL: Yes.
“THE COURT: If you went out and deliberated now you would find him not guilty because you have no evidence.
“MRS. BALL: Right.
“THE COURT: If the State doesn’t meet a burden of proof then, of course, your verdict would be not guilty. It is his choice whether or not he wants to testify or not. You will understand as the ease goes along.”

Appellant’s trial counsel moved for a mistrial; his motion was denied.

Appellant’s contention here is that the judge’s offhand answer to juror Ball’s question either constituted reversible error per se or combined with allegedly improper remarks of counsel for the State to create a situation where the defendant’s right not to testify could not possibly have been exercised.

We agree that the judge’s “You’ve got me” response to the juror’s question was unfortunate and ill-considered. “The dominant position occupied by a judge in the trial of the cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, overshadow those of the litigants, witnesses and other court officers.” Hamilton v. State, 109 So.2d 422, 424 (3d D.C.A. Fla.1959). However, we find that in this case the judge’s remark does not require reversal. First, considered as a whole, his entire response, including the clarifying explanation that no inference of guilt could be drawn from appellant’s failure to testify, was neither misleading nor erroneous. See United States v. Esse, 468 F.2d 1070 (5th Cir. 1972), in which the court held that an inadvertent remark by the trial court to defense counsel to the effect that counsel was free to put the defendant on the witness stand to rebut testimony then in evidence was harmless error when the remark was clarified shortly thereafter by an adequate interim instruction to the jury as to the defendant’s right not to testify, where the defendant did in fact take the stand and where the proof of guilt was overwhelming. Second, it is difficult to credit appellant’s argument that the court’s comment “forced” his trial counsel to put him on the witness stand. We agree that a defendant’s decision whether to testify must be made in an atmosphere free of coercion or intimidation. But here there can be little doubt that from the outset the defense intended to put Provence on the stand. Faced with a situation in which the deceased’s body exhibited eight stab wounds and in which there were no witnesses to the homicide, how else but through his own testimony from the witness stand could the defendant hope to present a credible self-defense argument?

We hold that the trial court’s comment was error, but that in the total circumstances of this case, that error does not require reversal of the instant conviction. Appellant was entitled not to a perfect trial but to a fair one, and he received it in the court below.

However, we agree with appellant that the trial court erred in sentencing him to death. The judge’s order does not specifically enumerate which aggravating circumstances under Section 921.141(5), Florida Statutes, induced him to override the jury’s recommendation of mercy and to sentence Provence to die. The State argues the existence of two aggravating circumstances, that the murder occurred in the commission of the robbery [subsection (d)] and that the crime was committed for pecuniary gain [subsection (f)]. While we would agree that in some eases, such as where a larceny is committed in the course of a rape-murder, subsections (d) and (f) refer to separate analytical concepts and can validly be considered to constitute two circumstances, here, as in all robbery-murders, both subsections refer to the same aspect of the defendant’s crime. Consequently, one who commits a capital crime in the course of a robbery will always begin with two aggravating circumstances against him while those who commit such a crime in the course of any other enumerated felony will not be similarly disadvantaged. Mindful that our decision in death penalty cases must result from more than a simple summing of aggravating and mitigating circumstances, State v. Dixon, 283 So.2d 1, 10 (Fla.1973), we believe that Provence’s pecuniary motive at the time of the murder constitutes only one factor which we must consider in this case.

At the time of sentencing in the instant case, there were two armed robbery charges pending against appellant in the Washington, D.C. area. The court also concluded on the basis of information contained in the p.s.i. that “[a]t the time of his arrest the Defendant was in the process of ripping off a heroin addict named David W. Jackson in a remote mountain area of Koo-tenai County, Idaho.” We recognize that the constitutional parameters of the trial judge’s discretion in the area of sentencing are wide indeed. See Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). But Section 921.141, Florida Statutes, intended as it was to meet the constitutional infirmity of capital sentencing procedures explored in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), is designed to limit the unbridled exercise of judicial discretion in cases where the ultimate penalty is possible. Section 921.-141(5), Florida Statutes, states that “[aggravating circumstances shall be limited to the following” and then proceeds to list eight circumstances, (a)-(h). Subsection (b) reads:

“The defendant was previously convicted of another capital felony involving the use or threat of violence to the person.” (Emphasis supplied)

Clearly the language of that subsection excludes the possibility of considering mere arrests or accusations as factors in aggravation. To the extent the trial court did so, it erred.

A review of other cases in which the issue of a sentence of death after life recommendation by the jury has been faced convinces us that the circumstances of the instant case do not call for the imposition of the death penalty. For example, there is a significant difference between this situation and the aggravating circumstances found by the Court in Douglas v. State, 328 So.2d 18 (Fla.1976) (defendant forced performance of sexual acts between victim and third party, then between third party and himself), and Dobbert v. State, 328 So.2d 433 (Fla.1976) (child torture and infanticide). In fact, the circumstances of this case are less aggravated than those present in other cases where this Court has reversed the trial court’s imposition of the death penalty. See Halliwell v. State, 323 So.2d 557 (Fla.1975) (breaker bar used as murder weapon; victim’s body dismembered); Swan v. State, 322 So.2d 485 (Fla.1975) (victim, badly bruised and beaten, found with “[h]er hands, neck and left foot tied so that any efforts she might have made to free herself could have choked her to death.”).

Tedder v. State, 322 So.2d 908, 910 (Fla.1975), articulated the standard to be applied when this Court is asked to review a death sentence imposed subsequent to a jury recommendation of.life imprisonment:

“. . .A jury recommendation under our trifurcated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” (Emphasis supplied)

We have no difficulty in concluding that reasonable persons can differ over the fate of Michael Edward Provence. With the jury having struck the balance in his favor, under the Tedder standard we will not set aside their recommendation on these facts.

Appellant’s conviction for first degree murder is affirmed. The order of the trial judge sentencing appellant to death is quashed, with directions to enter a sentence of life imprisonment without possibility of parole for 25 years.

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

OVERTON, C. J., concurs in part and dissents in part with an opinion.

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

OVERTON, Chief Justice

(concurring in part, dissenting in part).

I concur with the majority opinion insofar as it affirms the appellant’s conviction.

The circumstances of this case appear to justify the imposition of the death penalty, and I therefore dissent from the quashing of the death sentence and imposing life imprisonment. The aggravating findings of the trial judge concerning other conduct should not be totally discarded provided the defendant has a full opportunity to refute those matters. I would remand the cause to the trial judge for hearing concerning this conduct and for further amplification of his reasons for imposing the death sentence.

ROBERTS, Justice

(concurring in part, dissenting in part).

I would affirm the conviction and sentences. This was a horrible inexcusable crime.

Rehearing denied;

OVERTON, C. J., ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

ROBERTS, J., dissents.


author: ENGLAND, Justice. BOYD, Justice ROBERTS, Justice

text:
    Delbert TIBBS, a/k/a Delbert Johnson, Appellant, v. STATE of Florida, Appellee.
    No. 47258.
    Supreme Court of Florida.
    July 28, 1976.
    Rehearing Denied Sept. 28, 1976.

      George C. Howard, of Howard & Mann, Chicago, Ill., for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   ENGLAND, Justice.

This cause is before us on direct appeal to review the convictions of Delbert Tibbs for rape and murder in the first degree. Tibbs was sentenced to life imprisonment and to death, respectively. We have jurisdiction under Article V, Section 3(b)(1) of the Florida Constitution, and Section 921.141, Florida Statutes (1975).

Tibbs was charged in a three count indictment with the rape of Cynthia Nadeau, the premeditated murder of Terry R. Mil-roy, and the crime of felony murder for killing Milroy while raping Nadeau. A jury trial was held which resulted in conviction for rape and first degree murder. A death sentence was recommended by the jury for murder, and the trial judge imposed the death penalty for that crime.

The relevant facts of the alleged crime, as brought out on trial, were these. Na-deau and Milroy were hitchhiking to Marathon from St. Petersburg, when they were picked up in Fort Myers by a man alleged to be driving a green truck with a rounded hood, black vinyl seats, no door handle, and an oil light that blinked on and off. This man drove into a field, stopped the truck, got out of the truck with Milroy and requested that Milroy give him a hand. After a minute or so passed, Nadeau got out of the truck and went around to the back of the truck where the driver was holding a gun on Milroy. As he held the gun on Milroy, he commanded Nadeau to undress. He then shot Milroy and walked over to where Milroy lay. Milroy pleaded with the driver not to kill him, but the man shot him again, inflicting the fatal wound. The driver then proceeded to rape Nadeau. Thereafter, she was ordered to dress and get back in the truck. Upon reaching the highway, she was ordered to get out and walk in front of the truck. She left the truck, but was able to run and successfully escape.

Tibbs’ principal contention to this Court is that the totality of evidence at trial was insufficient to place him at or near the scene of the murder and rape at the time they occurred, or to establish his identity as the perpetrator beyond all reasonable doubt. Specifically he states that there is no evidence to corroborate the testimony of Cynthia Nadeau, the 17-year old rape victim, and that her testimony is so riddled with conflicts and is so inherently unreliable that his conviction and attendant death sentence should be reversed. Tibbs also contends, and we agree after reading the transcript, that no credence can be given to the testimony of Tibbs’ Lee County jailmate, serving a life sentence for rape, to the effect that Tibbs confessed to the crime. This testimony appears to be the product of purely selfish considerations.

Under Section 921.141(4), Florida Statutes (1975), and Fla.App. Rule 6.16(b), it is our obligation to review a conviction for which the death sentence has been imposed to determine if the interests of justice require a new trial. Our review of the record of this proceeding leaves us with considerable doubt that Delbert Tibbs is the man who committed the crimes for which he has been convicted. Since the principal testimonial evidence against Tibbs came from Nadeau, we begin with the legal rules governing its reliability.

The law in Florida appears well established to the effect that no corroborative evidence is required in a rape case when the victim can testify directly to the crime and identify her assailant. Thomas v. State, 167 So.2d 309 (Fla.1964). Obviously this rule also applies to the rape-murder crimes with which Tibbs was charged. The policy reasons for this rule are sufficiently apparent that they need not be reiterated or re-examined here. The limitation to its application, however, is “that where the sole witness is the prosecutrix, her testimony must be carefully scrutinized so as to avoid an unmerited conviction.” Thomas, above, at 310.

In this ease, we find the following infirmities in the evidence establishing Tibbs as the perpetrator of these crimes:

(1)Except for the testimony of Nadeau, not one shred of evidence was developed to place Tibbs in the Ft. Myers area at any time, let alone on or near February 3, 1974, the date of the crimes. Admittedly Tibbs was not a public or social figure who would have made acquaintances or attracted attention, but with the publicity attending the crimes and the discovery methods available to the state, surely someone might have been found who could (at least tentatively) have identified Tibbs as having come to Ft. Myers, eaten in Ft. Myers, passed through Ft. Myers, or at least been seen walking or riding in Ft. Myers. No such person was brought forward, and only Cynthia Nadeau’s testimony puts this man in that area of Florida. In contrast, undisputed evidence established Tibbs’ presence in Daytona Beach on the night of February 1 and the morning of February 2, in Lees-burg on February 6, and in Ocala on February 7. Except Nadeau’s testimony, there is no evidence to place Tibbs in the southwest corner of the state during this five day interval.

(2) No trace was ever found of the truck which Nadeau stated was driven by Tibbs when she and Milroy were picked up in Ft. Myers and taken to the scene of the crimes. Despite her specific testimony as to the color of the truck, its type and its special characteristics (no right door handle, rounded hood, blinking oil light), and the additional fact that her description was given to the police within an hour of Milroy’s death and her alleged rape, the police were unable to locate any vehicle like the one she described despite an exhaustive car and helicopter search of the area. This fact can be evaluated against the uncontroverted evidence that Tibbs was on the other side of Florida, in Daytona Beach, the morning of the day before the crimes and at that time possessed no vehicle for his use.

(3) No gun or car keys were ever found in Tibbs’ possession, at the scene of the crime, or elsewhere. When Tibbs was stopped by police officers in Florida and Mississippi (February 6 in Leesburg, February 7 in Ocala, and March 13 in Clarksdale, Mississippi) he was afoot, and there was no evidence that he had either owned or operated a motor vehicle.

(4) On the three occasions when Tibbs was stopped by police on the basis of the description issued by Nadeau, he cooperated fully with the officers by providing all information and identification they requested, by allowing himself to be photographed, and on the last occasion by waiving extradition in Mississippi to voluntarily return to Florida to face rape and murder charges in Ft. Myers.

(5) No evidence was introduced which casts doubt on Tibbs’ veracity. He did not have a previous criminal record and he had never been arrested, except possibly for a traffic violation. Evidence was introduced from people in his home town, including a minister and elected state officials, that he was a law-abiding citizen.

(6) Several features of Nadeau’s testimony, when considered with other evidence in the record independently established and uncontroverted, cast doubt on her believability. For one, despite her assertions that adequate daylight was present at the time of the alleged crimes to impress Tibbs’ features and characteristics into her mind, all independent evidence of the events indicates that the crimes occurred after nightfall. For another, her admitted use of marijuana throughout the day and immediately prior to the crimes casts doubt on her identification of Tibbs. Thirdly, the manner in which Tibbs was first identified ten days after the crimes, by bringing Nadeau to Ft. Myers from St. Petersburg after she had reestablished herself in that community, in order to see three photographs of Tibbs, suggests a less reliable identification than would have been possible with multiple photographs of more than one person.

We recognize that the resolution of factual issues in a criminal trial is peculiarly within the province of a jury, but in this case a man’s life has been placed in jeopardy and the Florida Legislature has directed that we review the “entire record”. Our obligation now is no less than it was when Odie McNeil was sentenced to life imprisonment in 1932 and this Court said:

“Human liberty should not be forfeited by a conviction under evidence which is not sufficient to convince a fair and impartial mind of the guilt of the accused beyond a reasonable doubt. This is especially true in a case where life imprisonment is the penalty imposed. Heath v. State, [97 Fla. 330, 120 So. 846] supra. And where the evidence of identity of the accused as being the guilty party is not satisfactory to the appellate court, a new trial will be granted. Nims v. State, [70 Fla. 530, 70 So. 565] supra.
In this case the sole testimony identifying the defendant McNeil as a participant in the robbery was given by the witness Rahming
While the weight of the evidence and the credibility of the witnesses is ordinarily a matter which is exclusively within the province of the jury to decide, and this court will as a rule not reverse a judgment based upon a verdict returned by the jury and approved by the trial judge, when there is substantial evidence to support the verdict rendered, it is also the rule that the evidence relied on to have this effect must be substantial in character.
When such evidence is not substantial in character, this court is committed to the rule that a conviction will be reversed and a new trial ordered, where the evidence relied on is not satisfactory to establish the identity of an accused as a participant in a crime of which he has been found guilty.” McNeil v. State, 104 Fla. 360, 139 So. 791, 792 (1932).

Rather than risk the very real possibility that Tibbs had nothing to do with these crimes, we reverse his conviction and remand for a new trial.

SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., concurs specially with an opinion.

ROBERTS, J., dissents with an opinion.

OVERTON, C. J., and ADKINS, J., dissent and concur with ROBERTS, J.

BOYD, Justice

(concurring specially).

I concur in the majority opinion by Justice England vacating the conviction and sentence and requiring a new trial. I base this conclusion upon the weakness and inadequacy of the testimony against appellant given in the trial court.

In each instance before the death penalty may be imposed under Florida law this Court, far from the scenes of the crimes and pressures of the trial court proceedings, and with clinical objectivity, evaluates the record. We must determine whether such convicted persons are to be executed, imprisoned or set free.

Under Anglo-American standards of criminal justice the record in this case does not, in my judgment, support the imposition of either capital punishment or imprisonment.

In the case of Griffis v. Hill, 230 So.2d 143 (Fla.1969) this Court held that:

“The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict.”

The major corroborating witness for the State is a convicted rapist who admitted under oath in this trial proceeding that he had testified falsely under oath in connection with his prior trial relating to his guilt and his ability to pay legal counsel. The witness testified that he was angered because a state investigator had accused him of being a liar and at first refused to consider the testimony which he wanted to give against appellant to the effect that appellant had made an admission of guilt to him while they were in jail together. It should have been obvious that the witness was attempting by his testimony to benefit himself in connection with his own imprisonment. The eyewitness testimony of the rape victim is the only testimony having any merit whatever, but it is not supported by even the slightest additional testimony placing appellant within 150 miles of the scene of the crime when it occurred. The mysterious truck in which the rape victim testified she and her attacker had smoked marijuana cigarettes could never be found, although the other convicted rapist claimed that appellant had told him the truck had been abandoned when it ran out of gas between Fort Myers and Miami. The testimony further shows that on the fateful day of the crimes, the rape victim had smoked marijuana cigarettes on several occasions during the day and was under the influence of marijuana at the time the crimes were committed. Immediately after the crime she resumed her status as the “common law wife” of the man whom she had deserted in St. Petersburg when she eloped with the murder victim. Although she personally identified appellant from pictures, in a lineup and at trial, the testimony given by the rape victim immediately after the crime gave a description of a ruffian whose language, personality and physical appearance conflicted substantially with that of the appellant who was identified at the trial by Chicago public officials and professional people as having a good reputation and being a law abiding citizen.

Although the weakness of the evidence presented in the trial court might well require that the appellant be released from incarceration without further litigation, it is my understanding that Florida law permits a new trial and I, therefore, reluctantly concur in the majority opinion providing for such new trial.

ROBERTS, Justice

(dissenting).

I must respectfully dissent.

Appellant was charged in a three count indictment with rape in that he did unlawfully and feloniously ravish and carnally know a female of more than ten years of age, to-wit: Cynthia Nadeau, by force and against her will; with murder in the first degree in that he did unlawfully, feloniously and from a premeditated design to effect the death of Terry R. Milroy, did shoot Milroy with a deadly weapon — a pistol— thereby inflicting a mortal wound from which Milroy died; and with felony murder in that he did unlawfully and feloniously kill Milroy while perpetrating the rape of Cynthia Nadeau. The jury returned a verdict of guilty of rape, and guilty of murder in the first degree and recommended the death penalty. The trial court adjudicated him guilty of murder in the first degree and rape and sentenced him to consecutive sentences of death and life.

Hitchhiking to Marathon, Florida, from St. Petersburg, Cynthia Nadeau and Terry Milroy were picked up in Fort Myers by a man, identified as the defendant, driving a green truck with a rounded hood, black leather vinyl seats, no door handle, with the oil light going on and off. Defendant drove into a field, stopped the truck, got out of the truck with Milroy and requested that Milroy give him a hand. After a minute or so passed, Nadeau got out of the truck and went around to the back of the truck where defendant was holding a gun on Milroy. As he held the gun on Milroy, he commanded Nadeau to undress. He then shot Milroy and walked over to where Milroy lay, Mil-roy pleaded with defendant not to kill him, but defendant shot him again inflicting the mortal wound which caused Milroy’s death. Defendant then proceeded to rape Nadeau. Thereafter, she was ordered to dress and get back in the truck. Upon reaching the highway, she was ordered by defendant to get out and walk in front of the truck. She did exit the truck but ran and successfully escaped.

Appellant has raised several points on appeal relating to the identification procedure employed by the State, the jury ve-nire, testimony of the prosecutorial identifying witness, introduction into evidence of the polygraph test contained in the police report, alleged forgery of registration card at the Salvation Army Center in Orlando, alleged perjured testimony of the corroborating witness Tibbs, brief period of time in which jury deliberated before returning its verdict of guilty as charged, and the constitutionality of the death penalty.

Subsequent to the rape and murder, Na-deau gave a detailed description of her assailant. Because he fit the description, the defendant was stopped several times for questioning. Appellant explains that the complaining witness, having previously been unable to identify her assailant from photograph identification albums provided by the police, was presented with two photographs of the defendant whom she identified as her assailant. She later identified him in a four-man lineup and again at trial. Appellant argues that the photographic identification by Cynthia Nadeau who identified appellant as her assailant and the murderer of Milroy so tainted the subsequent lineup and trial identifications as to deprive him of due process of law because this procedure was so suggestive as to give rise to a real likelihood of irreparable mis-identification.

The prosecutrix in Chaney v. State, 267 So.2d 65 (Fla.1972), identified her assailant when presented with a single photograph of him by the Sheriff’s deputy. Subsequently, she identified him from a lineup. Taking into consideration the circumstances surrounding the identification and the guidelines set out by the Supreme Court of the United States to ensure against misidentifi-eation, this Court held that the identification procedures employed were not so fatally tainted to deprive appellant of due process of law. Therein, this Court explained:

“Within the latitude of the particular facts of this case and taking them all into consideration, as we may do under the guidelines of the Supreme Court of the United States, it does not appear to us that the identification procedures employed herein were fatally tainted to the point of depriving Appellant of due process of law.
“It is true that a single photograph of Appellant was shown prosecutrix by the sheriff’s deputy, because she told him Appellant had revealed to her he had been jailed for raping another girl. Pursuant to this revelation, it is logical that the police would show prosecutrix a photograph of a suspect in another rape case who had been jailed as a lead in identifying and arresting the person suspected of committing the crime of rape upon the prosecutrix. Under these circumstances, it was not an abuse of due process rights to use the single photograph as a clue or lead in apprehending the rapist of prose-cutrix. In fact, it would be unreasonable to preclude the use of such a photograph for this pre-arrest purpose.
“Moreover, the fact that prosecutrix had opportunity to see her assailant over a period of several hours, including daylight of the day succeeding his original attack upon her, is such an overwhelming circumstance of independent origin as to discount the suggestion that only through means of the photograph prosecutrix was able to identify Appellant. Corroborating latent fingerprints extracted from furnishings and items in the trailer where the rape occurred were identified as belonging to Appellant.
“We conclude that the totality of the particular circumstances of this case does not disclose that prosecutrix’s identification of Appellant was fatally tainted to the point of denial of his rights of due process.” (Emphasis supplied)

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which involved a victim’s identification of the defendant at a stationhouse showup which occurred seven months after the rape, the Supreme Court determined that, although the stationhouse identification may have been suggestive, under the totality of circumstances, the victim’s identification was reliable and was properly allowed to go to the jury. First discussing the past precedent relative to the scope of due protection against the admission of evidence deriving from misidentifi-eation procedures, the Supreme Court delineated guidelines to be considered relative to the relationship between suggestiveness and misidentification, as follows:

“It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable mis-identification.’ Simmons v. United States, 390 U.S., at 384, 88 S.Ct., at 971. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. [Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402.] Suggestive confrontations are disapproved because they increase the likelihood of misidenti-fication, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misiden-tification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.
“What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to respondent, we do not think that the evidence must therefore be excluded. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process. Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring); cf. Gilbert v. California, 388 U.S. 263, 273, 87 S.Ct. 1951, 1957, 18 L.Ed.2d 1178 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Such a rule would have no place in the present case, since both the confrontation and the trial preceded Stovall v. Denno, supra, when we first gave notice that the suggestiveness of confrontation procedures was anything other than a matter to be argued to the jury.
“We turn, then, to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

Upon consideration of these guidelines, the Supreme Court concluded:

“We find that the District Court’s conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had ‘no doubt’ that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation. The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant. She testified at the habeas corpus hearing that there was something about his face T don’t think I could ever forget.’ App. 127.
“There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misidentifieation. The evidence was properly allowed to go to the jury.”

Applying the factors described in Neil v. Biggers, supra, appellee states that Nadeau’s identification was reliable and was properly submitted to the jury. I agree.

Although appellant originally objected to the jury venire at the commencement of trial proceedings, he subsequently expressly withdrew the objection to the venire after the jury was selected. The following is reflected by the record:

“THE COURT: Mr. Howard, for the record, are you withdrawing your objection that you made yesterday?
“MR. HOWARD: Yes.
“MR. LONG: For the record, Mr. Howard, you are withdrawing the objection to the venire as it appeared in the courtroom as of yesterday?
“MR. HOWARD: Yes.
“MR. LONG: Thank you very much, Mr. Howard.
“THE COURT: Is the State ready to proceed?
“MR. LONG: Yes.
“THE COURT: Defense ready to proceed?
“MR. HOWARD: Yes.”

Accordingly, appellant can not now complain of reversible error on this ground. In State v. Silva, 259 So.2d 153 (Fla.1972), this Court held:

“Such an objection comes too late after verdict and has no place in a motion for new trial or in arrest of judgment. By going to trial before a jury without any objections, a defendant waives all irregularity in the drawing, summoning and impaneling of such jurors. Green v. State, 60 Fla. 22, 53 So. 610 (1910); Lake v. State, 100 Fla. 386, 129 So. 833 (1930); 14 F.L.P., Jury, § 111; 20 Fla.Jur., Juries, § 68.”

Appellant contends that the introduction into evidence of the police report which included results of a polygraph test given to Miss Nadeau and other hearsay evidence was error. The defense used the police report extensively in cross-examination of a witness. Thereafter the State moved to introduce the report into evidence. The trial judge then specifically inquired of defense counsel whether there was any objection to the introduction of the report to which defense counsel responded that he had no objection. The following appears in the record:

“MR. LONG: Your Honor, at this time I would move to introduce the investigator’s report into evidence that Mr. Wallace has been testifying from.
“MR. HOWARD: Well, excuse me. Judge, I don’t want to argue the matter. May we approach the bench?
“THE COURT: You have seen it. Do you have any objection? If you have an objection then we will return the jury back to the jury room. That’s what we usually do. Do you have any objection to it being introduced?
“MR. HOWARD: No, sir. That is all right.
“MR. LONG: Thank you.
“THE COURT: All right. Mr. Clerk, please mark the investigator’s report into evidence carrying the same number.” (Emphasis supplied)

The report was thereby stipulated into evidence. I find no reversible error as to this point. Cf. Codie v. State, 313 So.2d 754 (Fla.1975); Woods v. State, 285 So.2d 650 (Fla.App. 3, 1973).

I have carefully considered the several other points on appeal presented by appellant and find none to be meritorious so as to constitute reversible error.

I have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed, and I have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that I find no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial be awarded. Cf. State v. Dixon, 283 So.2d 1 (Fla.1973); Alford v. State, 307 So.2d 433 (Fla.1974).

The jury recommended and the trial judge, upon considering all the mitigating and aggravating circumstances, agreed that the death penalty be imposed for the commission of this atrocious and heinous crime. I find that the judgment and sentence of the lower court in this cause is in accordance with the justice of the cause.

I, therefore, respectfully dissent.

OVERTON, C. J., and ADKINS, J., concur.

      . The state introduced records from the Orlando Salvation Army which would have placed Tibbs in that area on the night of February 4. Without passing on Tibbs’ assertion that the signature on the card was not his (which a superficial comparison with his admitted signature on a like record from the Daytona Beach Salvation Army seems to bear out), Orlando is still the nearest place to Ft. Myers, geographically and in time, that the state was able to place him, except of course for Nadeau’s testimony.

      . “In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court held that the defendant could claim that ‘the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.’ Id., at 301-302, 87 S.Ct., at 1972. This, we held, must be determined ‘on the totality of the circumstances.’
      We went on to find that on the facts of the case then before us, due process was not violated, emphasizing that the critical condition of the injured witness justified a showup in her hospital room. At trial, the witness, whose view of the suspect at the time of the crime was brief, testified to the out-of-court identification, as did several police officers present in her hospital room, and also made an in-court identification.
      “Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:
      “ ‘[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
      “Again we found the identification procedure to be supportable, relying both on the need for prompt utilization of other investigative leads and on the likelihood that the photographic identifications were reliable, the witnesses having viewed the bank robbers for periods of up to five minutes under good lighting conditions at the time of the robbery.
      * * * * * *
      “In the most recent case of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), we held admissible an in-court identification by a witness who had a fleeting but ‘real good look’ at his assailant in the headlights of a passing car. The witness testified at a pretrial suppression hearing that he identified one of the petitioners among the participants in the lineup before the police placed the participants in a formal line. Mr. Justice Brennan for four members of the Court stated that this evidence could support a finding that the in-court identification was ‘entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup.’ 399 U.S., at 5-6, 90 S.Ct., at 2001.”


author: OVERTON, Chief Justice.

text:
    STATE of Florida, Petitioner, v. Frederick Lamar BENTON, Respondent.
    No. 46926.
    Supreme Court of Florida.
    Sept. 16, 1976.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for petitioner.
    Jack O. Johnson, Public Defender, and Dennis P. Maloney, Asst. Public Defender, for respondent.
   OVERTON, Chief Justice.

This cause is a petition for certiorari to review a decision of the Second District Court of Appeal reported at 307 So.2d 198 (Fla.App.2d 1975). We find conflict with State v. Bryant, 276 So.2d 184 (Fla.App.1st 1973). We have jurisdiction.

The respondent committed a robbery on July 10, 1973, at age 16. He was arrested the same day and was detained in a juvenile facility. On September 19, 1973, the court certified respondent for trial as an adult. On January 9, 1974, the respondent moved for discharge for failure to comply with the 180-day speedy trial rule. The trial court denied the motion. Respondent thereupon was tried and convicted in a jury trial which began and ended January 16, 1974. There was no showing that any of the pretrial period was attributable to defense delay.

The Second District reversed the trial court, holding that Rule of Criminal Procedure 3.191(a)(1) applied directly to the facts, and that respondent’s initial status as a juvenile was of no consequence since the State, having “elected to require appellant to be tried as an adult,” owed respondent adult procedural safeguards. The District Court further said the speedy trial period commenced as prescribed in the rule, specifically, when “the ‘person is taken into custody . . .and discharged the respondent.

The State contends that the procedural 180-day period should not commence to run until the juvenile has been certified to be tried as an adult. In State v. Bryant the First District Court reversed a 1972 trial court’s discharge of a juvenile defendant who had been certified to be tried as an adult. At the time of the trial court’s ruling on the speedy trial motion in Bryant there was no juvenile procedural speedy trial rule, and 180 days had not elapsed from the date of the defendant’s certification. The Bryant result was proper at the time, but now the subsequent adoption of a juvenile speedy trial procedural rule renders the result set forth therein obsolete.

In the instant case the State knew it had 90 days to bring the respondent to an adjudicatory hearing as a juvenile, or 180 days to try him as an adult. Florida Rule of Juvenile Procedure 8.120 and Florida Rule of Criminal Procedure 3.191. We recognize that the State may not proceed in the adult forum until certification, but the State must be prepared to proceed in the juvenile forum within 90 days in both misdemeanor and felony situations. In the event of certification of a juvenile to be tried as an adult it is the same offense for the same defendant, and no justification exists to restart the procedural time clock.

Our decision in State v. Boatman, supra, is related, but promulgation of the juvenile speedy trial procedural rule between the arrest and certification for trial as an adult distinguishes it. In addition, there was evidence in Boatman that portions of the delay were caused by counsel for the defendant juvenile.

In conclusion, we hold the State must be prepared to proceed to try a juvenile who has been certified to be tried as an adult within 180 days from the time he is taken into custody.

The decision of the Second District is approved, and the writ is discharged.

It is so ordered.

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

      . Art. V, § 3(b)(3), Fla.Const.

      . See State v. Boatman, 329 So.2d 309 (Fla.1976), for comment on the propriety of the reason assigned in Bryant for its result.

      . This period is applicable where the juvenile is not detained. Fla.Rule Juv.P. 8.120. Where the juvenile is detained during the proceedings, see Section 39.03(7), Fla.Stat., and State Dept. of Health and Rehabilitative Services v. Golden, Case No. 46,321 (Fla. Opinion filed February 26, 1976).


author: BY THE COURT.

text:
    Melvin T. CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 48088.
    Supreme Court of Florida.
    Sept. 16, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for petitioner.

      Robert L. Shevin, Atty. Gen., and C. Marie Bernard, Asst. Atty. Gen., for respondent.
   BY THE COURT.

The decision of the Fourth District Court of Appeal reported at 318 So.2d 487, affirming petitioner’s conviction of aggravated assault, is reversed. State v. White, 324 So.2d 630 (Fla.1975). On the authority of Section 924.34, Fla.Stat. (1973), this cause is remanded with instructions to direct the trial court to enter conviction and sentence for the lesser included offense of attempt to commit aggravated assault, which the evidence establishes.

It is so ordered.

ROBERTS, Acting C. J., and ADKINS, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

      . Sections 776.04(3) and 784.04, Fla.Stat. (1973).


author: SUNDBERG, Justice.

text:
    BAY PLUMBING COMPANY, INC. and Allstate Insurance Company, Petitioners, Cross Respondents, v. Dorris Wayne HARBIN and the Florida Industrial Relations Commission, Respondents, Cross Petitioners.
    No. 48805.
    Supreme Court of Florida.
    Sept. 16, 1976.
    John G. Tomlinson, Jr., of Williams & Tomlinson, Coral Gables, for petitioners, cross-respondents.
    Bernard S. Shapiro, of John V. Christie, Miami, for respondents, cross-petitioners.
   SUNDBERG, Justice.

This claim for workmen’s compensation benefits under Chapter 440, Florida Statutes, came before a Judge of Industrial Claims who entered an order on September 13, 1974, awarding payment of benefits to the claimant. The Industrial Relations Commission reversed the order and remanded the cause for further findings. On May 19, 1975, the Judge of Industrial Claims entered an order for payment of the same benefits. The Industrial Relations Commission on January 6, 1976, reversed in part and affirmed in part, and it is from that order that review is sought here by way of petition and cross-petition for writ of cer-tiorari. Several issues have been raised, but the only one that we deem worthy of consideration is whether, as the Industrial Relations Commission held, the Judge of Industrial Claims erred in making an award for reimbursement of medical expenses. Petitioners/cross-respondents Bay Plumbing Company, Inc. and Allstate Insurance argue that the claimant was not entitled to the award.

As noted in the order of the Judge of Industrial Claims dated May 19, 1975, the claimant (respondent/cross-petitioner)' Harbin’s claim which was filed on February 27, 1974, prayed “for all compensation benefits to which he may be entitled pursuant to Florida Statute 440.” Inter alia claimant specifically requested “reimbursement for past medical expenses incurred as a result of said accident including doctor’s bills, hospital bills, medical transportation and medicines.” It was specifically stated in the order of the Judge of Industrial Claims that “[c]laim was made for all benefits to which the claimant is entitled under Florida Statute 440, and more specifically, but not by limitation, for temporary total disability from January 13, 1974, until the date of the final hearing and continuing until the date of maximum medical improvement, payment and reimbursement of past medical, future medical, surgery, costs and attorney’s fees.” (Emphasis supplied)

Petitioners/cross-respondents argue that the issues are not framed by the claim but by the claimant’s position at the time of hearing before the Judge of Industrial Claims. They further argue that no request was made for reimbursement of medical expenses at the hearing on May 2, 1974, and that therefore the claim was not properly before the Judge of Industrial Claims. Petitioners argue that the award of reimbursement under these circumstances was a denial of due process in that a litigant is entitled to know what he is called upon to defend. This is the same reasoning relied upon by the Industrial Relations Commission in its January 6, 1976, order reversing the Judge of Industrial Claims as to the award for reimbursement.

Neither petitioners nor the Industrial Relations Commission cite any authority for the proposition that the issues are framed as of the time of hearing. Rule 5 of the Florida Workmen’s Compensation Rules of Procedure provides:

“Claims for compensation shall be filed with the Bureau [of Workmen’s Compensation], and shall contain the name, social security number, and address of the employee, the name and address of the employer, and a statement of the time, place, nature, and cause of the injury or such fairly equivalent information as will put the Bureau and the employer on notice concerning the identity of the parties and the nature of the claim. . . .”
(Emphasis supplied)

The same filing requirement is contained in Section 440.19(l)(c), Florida Statutes (1975). Section 440.25(2), Florida Statutes (1975), requires the employer and any other interested parties to be notified of a claim. Such notice is required to be served either personally or by regular mail. Petitioners in their brief have not maintained that they failed to receive the statutorily required notice of the claim. Nor have petitioners alleged that they were without notice that respondent’s claim prayed for reimbursement of medical expenses. Their argument is merely that since respondent did not specifically renew his claim for reimbursement before the Judge of Industrial Claims, they were denied due process notice. Petitioners have failed to persuade us that due process notice sets so high a standard.

Petitioners cite us to Haygood Floors, Inc. v. Catherine O. Nichols, IRC Order 2-2887 (1975), and argue that it is controlling. Without passing on the merits of that decision, we find that it is not on all fours factually. In that case, a claim was filed and an order was issued by the Judge of Industrial Claims. Subsequently claimant filed another claim and the Judge issued a modified order. The Industrial Relations Commission reversed on the grounds that there was a denial of due process since the claimant had not filed a petition for modification but merely a claim, and consequently appellants were not on notice that the proceeding was merely to be a hearing to modify the previous order rather than a hearing on a separate claim. In the cause sub judi-ce, petitioners do not argue that they were not noticed as to the nature of the hearing but rather that the issues were not properly framed.

In light of the above discussion and the wide discretion that is afforded the Judge of Industrial Claims in conducting workmen’s compensation hearings by Section 440.29, Florida Statutes (1975), we hold that due process notice requirements were adequately met by claimant’s request for reimbursement in the claim. Consequently, the order of the Industrial Relations Commission is reversed as to the award of reimbursed medical expenses.

The January 6, 1976, order of the Industrial Relations Commission also reversed and remanded the cause for a recom-putation of attorney’s fees. The sole reason given for reversal as to this point was its reversal as to the reimbursed medical expenses. Having determined that the reversal as to medical expenses was in error, we likewise hold that the reversal as to attorney’s fees was also in error.

The petition for writ of certiorari is denied, and the cross-petition for writ of cer-tiorari is granted with instructions to reinstate in its entirety the award of the Judge of Industrial Claims.

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


author: ADKINS, Justice.

text:
    FLAGLER COUNTY BOARD OF COMMISSIONERS, a political subdivision, Appellant, v. Roy E. LIKINS and W. Farris McGee, Appellees.
    No. 49190.
    Supreme Court of Florida.
    Sept. 16, 1976.

      Sam Spector and Cynthia S. Tunnicliff, of the Law Office of Sam Spector, P.A., Tallahassee, and Noah C. McKinnon, Jr., Coble, McKinnon, Reynolds & Roberts, Day-tona Beach, for appellant.
    Michael D. Chiumento of the Law Offices of Michael D. Chiumento, Flagler Beach, for appellees.
   ADKINS, Justice.

This is an appeal from a final judgment in mandamus for electors and against the Board of County Commissioners seeking reapportionment, wherein the trial court declared Fla.Stat. § 124.01(3), F.S.A., to be unconstitutional. We have jurisdiction. Fla.Const., art. V, § 3(b)(1), F.S.A.

Fla.Const., art. VIII, § 1(e), F.S.A., reads as follows:

“Commissioners. Except when otherwise provided by county charter, the governing body of each county shall be a board of county commissioners composed of five members serving staggered terms of four years. After each decennial census the board of county commissioners shall divide the county into districts of contiguous territory as nearly equal in population as practicable. One commissioner residing in each district shall be elected by the electors of the county.”

Fla.Stat. § 124.01(3), F.S.A., reads as follows:

“The board of county commissioners shall from time to time, fix the boundaries of the above districts so as to keep them as nearly equal in- proportion to population as possible; provided, that changes made in the boundaries of county commissioner districts pursuant to this section shall be made only in odd-numbered years.”

The respondents (hereinafter referred to as the electors) filed a petition for writ of mandamus on December 30, 1975, seeking an order requiring the Board of County Commissioners to reapportion in 1976 so that the county commissioners’ districts would be as nearly equal in proportion to population as possible. The electors had requested the petitioners (hereinafter referred to as the Board) to redistrict pursuant to the above constitutional and statutory provisions. The electors say that the districts are no longer equal in proportion to population due to the increase in population, and the refusal of the Board to redistrict postpones until the general election of 1978 the election of county commissioners who would truly provide the residents of the county equal representation under the “one man, one vote” concept.

The alternative writ was issued and in its return the Board stated that the boundaries of the five county commissioners’ districts were redistricted in 1973, and the county is divided into “nearly equal districts in proportion to population as required by law.”

After a hearing on the return to the alternative writ, the trial judge ordered that the peremptory writ be issued and that redistricting be completed before qualification time for the county commissioners forthcoming elections in 1976. The order of the judge contained the following:

“4. That Florida Statute 124.01(3) is unconstitutional in that it takes away constitutional rights which are guaranteed by the 14th Amendment of the Federal Constitution.”

The trial judge apparently held that the electors were being effectively disenfranchised by unequal population districts, so that the statute was unconstitutional in requiring the electors to wait until an odd-numbered year for such redistricting.

Although Fla.Const., art. VIII, § 1(e), F.S.A., quoted above, requires that commissioners live in certain districts and that these residence districts are to be “as nearly equal in population as practicable,” the county commissioners run at large in the county.

In Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the Supreme Court was considering an election plan for a city council under which four members were elected at large without regard to residence and seven were elected by voters of the entire city, although required to reside in one of the seven boroughs. The Court reiterated that the fundamental principle of representative government in this country is one of equal representation for equal numbers of people without regard to race, sex, economic status, or place of residence within a state. The court then said:

“The Seven-Four Plan makes no distinction on the basis of race, creed, or economic status or location. Each of the 11 councilmen is elected by a vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal. In upholding a residence requirement for the election of state senators from a multi-district county we said in Fortson v. Dorsey, 379 U.S. 433, 438, 85 S.Ct. 498, 501, 13 L.Ed.2d 401:
“ ‘It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-district counties merely as the basis of residence for candidates, not for voting or representation. Each district’s senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus in fact he is the county’s and not merely the district’s senator.’
“By analogy the present consolidation plan uses boroughs in the city ‘merely as the basis of residence for candidates, not for voting or representation.’ He is nonetheless the city’s, not the borough’s, councilman. In Fortson there was substantial equality of population in the senatorial districts, while here the population of the boroughs varies widely. If a borough’s resident on the council represented in fact only the borough, residence being only a front, different conclusions might follow. But on the assumption that Reynolds v. Sims controls, the constitutional test under the Equal Protection Clause is whether there is an ‘invidious’ discrimination.” 87 S.Ct. 1554, 1555-56.

See also Reed v. Mann, 237 F.Supp. 22 (N.D.Ga.1964).

The Supreme Court in Dusch v. Davis, supra, upheld the plan even though the resident districts had wide discrepancy in population, reasoning that the councilmen represented the entire city since they ran at large. For this reason the argument of the electors that the Fourteenth Amendment of the United States Constitution is violated is without merit.

Under the above-quoted provisions of the Florida Constitution, it is within the discretion of the Board after a study of the decennial census figures to decide whether the existing districts are as nearly equal as possible. Recognizing the constant shift in the population of Florida, the Legislature by Fla.Stat. § 124.01(3), F.S.A., has given the Board authority to fix the boundaries of the districts from time to time so as to keep them as nearly equal in population as possible. This can only be done in “odd-numbered years.” The electors are attempting to do this in an even-numbered year.

Judicial relief is appropriate only if the Board fails to reapportion according to federal and state constitutional requisites. It could be that, decennial or otherwise, the scheme of selecting county commissioners under the circumstances of a particular case would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated the judiciary will consider whether the apportionment plan passes constitutional muster. See In re Apportionment Law, Senate Joint Res. No. 1305, 263 So.2d 797 (Fla.1972).

In Reece v. Dallas County, Alabama, 505 F.2d 879 (5th Cir. 1974), relied upon by the electors, there was a showing that an identified group of residents were the object of discrimination. The court said that even this would not be sufficient unless it were further shown that the malapportionment was invidious or discriminatory. This case is not in conflict with Dusch v. Davis, supra.

The electors have failed to show that the present apportionment plan operates to minimize or cancel out the voting strength of racial or political elements of the voting population. There is no showing of invidious discrimination.

In fact, the districts were reapportioned in 1973. The Constitution and the statute vests the Board with a reasonable range of discretion in fixing the boundaries of county commissioners’ districts and does not require absolute equality in population. See Ryan v. State ex rel. Ford, 60 So.2d 188 (Fla.1952). Fla.Stat. § 124.01(3), F.S.A., was enacted to implement Fla.Const. art. VIII, § 1(e), F.S.A. It is not unreasonable to require redistricting only every two years, considering the cost and other burdens placed upon the Board in performing this function. There has been no showing that there was such an increase in population as to result in invidious discrimination for any group.

Therefore, the judgment of the trial judge is reversed, the peremptory writ of mandamus is discharged, and the cause is remanded to the trial court with instructions to enter judgment for the Board of County Commissioners.

It is so ordered.

OVERTON, C. J., and ROBERTS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.


text:
    Petition of POST-NEWSWEEK STATIONS, FLORIDA, INC., for Change in Code of Judicial Conduct.
    No. 46835.
    Supreme Court of Florida.
    Sept. 17, 1976.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, for petitioner.
    Joseph C. Jacobs of Ervin, Varn, Jacobs & Odom, Tallahassee, for the Florida Association of Broadcasters, Inc.
    Parker Lee McDonald, Chairman, for the Florida Conference of Circuit Judges.

      Richard C. McFarlain, Asst. Director, Tallahassee, for The Florida Bar.
    Robert Eagan, State’s Atty. and Donald A. Lykkebak, Asst. State’s Atty., Orlando, for the State of Florida.
    Ellis S. Rubin of the Ellis Rubin Law Offices, Miami, for Rommie L. Loudd, A. Broaddus Livingston, Chairman, Orlando and Larry S. Stewart, Chairman-Elect, Miami, for Trial Lawyers Section of The Florida Bar.
    C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Society of Professional Journalists, Sigma Delta Chi, Southeast Region and Greater Miami Chapter, intervenor.
    Richard E. Gerstein, State’s Atty., and N. Joseph Durant, Jr., Chief Asst. State’s Atty., for Florida Pros. Attys. Ass’n and Harold Peter Barkas, Miami, for the Academy of Florida Trial Lawyers, amicus curiae.
   SUPPLEMENTAL INTERLOCUTORY DECISION

PER CURIAM.

This Court has been advised by The Honorable Ben C. Willis, Chief Judge of the Second Judicial Circuit, that he is having difficulty obtaining agreement of parties and counsel to provide a civil and criminal trial for televising in accordance with the guidelines set forth in our interlocutory decision reported in In re Petition of Post-Newsweek Stations, Florida, Inc., 327 So.2d 1 (Fla.1976), as supplemented by our order dated April 12, 1976.

We hereby amend our previous decision in this cause in order to authorize The Honorable Parker Lee McDonald, Circuit Judge of the Ninth Judicial Circuit, to conduct for experimental purposes one televised criminal trial and one televised civil trial in accordance with the guidelines set forth in our prior interlocutory decision in this cause reported at 327 So.2d 1 (Fla.1976), as supplemented by our order of April 12, 1976.

Judge McDonald has consented to exercise this authority in his jurisdiction in Orange County, Florida. The authority herein granted to Judge McDonald is in addition to the authority previously granted to Judge Willis.

It is so ordered.

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