author: BRADLEY, Judge.

text:
    W. WOODS v. HAUSER REALTY COMPANY, INC.
    Civ. 1515.
    Court of Civil Appeals of Alabama.
    Jan. 24, 1979.

      Walter G. Woods, pro se.
    No brief for appellee.
   BRADLEY, Judge.

The appeal is from a default judgment, orders denying the request to set aside the default judgment and an order denying permission to appeal in forma pauperis rendered by the Circuit Court of Mobile County*

The proceeding commenced in the Intermediate Civil Court of Mobile County when Hauser Realty Company filed an unlawful detainer action against defendant, W. Woods, appellant here. Defendant admitted the claim of plaintiff in the Intermediate Civil Court, failed to pay the back rent as agreed, and was ousted from the premises.

Defendant then filed a petition for writ of certiorari and bond for costs in the circuit court. On October 31, 1977 the circuit court entered a default judgment against defendant for failure to appear and defend the action on the day set after notice. On the same day defendant orally moved the court to set aside the default. After a hearing the trial court denied the motion. Thereupon, defendant, on November 29, 1977 in a written motion asked for a rehearing of the circuit court’s order refusing to set aside the default judgment. After another hearing the circuit court, on December 9, 1977, denied the rehearing request.

On December 20, 1977 defendant again filed a motion asking the circuit court to set aside the default judgment and recuse himself from presiding in the case. This motion was heard by the court on January 27, 1978 and was on that date denied.

A motion to proceed in forma pauperis was filed on February 16, 1978. The motion was denied by the circuit court on March 3, 1978.

Notice of appeal to this court was filed by defendant on March 29, 1978 but bond for costs was not posted until April 12, 1978.

Plaintiff-appellee has filed in this court a motion to dismiss the appeal on the ground that the notice of appeal was filed more than forty-two days after the last order denying defendant’s request to set aside the default judgment; hence the appeal comes too late and this court is without jurisdiction to hear and decide the matter.

We agree that the appeal must be dismissed.

Rule 4(a) ARAP provides that a notice of appeal must be filed within forty-two days of the date of the judgment or order appealed from. Compliance with this rule is essential in order for this court to obtain jurisdiction of the appeal. Bryan v. Brown, Ala., 339 So.2d 577 (1976), cert. den. 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 271 (1977).

This court considers the first motion made on October 31, 1977, to set aside the default judgment entered on the same day, a Rule 55(c) motion under the Alabama Rules of Civil Procedure. Rule 55(c) states: “In its discretion, the court may set aside an entry of default and the court may set aside a judgment by default within 30 days thereafter.” The October 31, 1977 motion was obviously made within the thirty day period provided for under Rule 55(c). It should be noted that ARAP 4(a) provides that motions pursuant to Rules 50, 52 and 59 suspend the running of the time for filing notice of appeal. The full time fixed for filing notice of appeal (forty-two days) is computed from the date of the denial of the motion. Although there is no mention of the effect of a motion filed under Rule 55(c) in ARAP 4(a), we might point out that Rule 55(c) has a thirty day limit like that of Rules 50, 52 and 59. By analogy, this court finds that a motion under Rule 55(c) would likewise have the effect of tolling the time for filing notice of appeal. The 55(c) motion was denied on October 31, 1977, the same day it was made. Because the appeal was not filed until March 29, 1978, the appeal from the October 31, 1977 default judgment and the order denying the motion to set aside the default judgment must be dismissed for failure to comply with ARAP 4.

Appellant-defendant’s motion for rehearing of the circuit court’s order denying the first motion to set aside was filed November 29,1977 and was filed within the thirty day limit of Rule 55(c). The Alabama Rules of Civil Procedure do not mention the effect of a second Rule 55(c) motion. ARAP 4(a) states that a timely post-trial motion under Rules 50, 52 and 59, ARCP suspends the running of the time for filing notice of appeal. Thus, if we again analogize a Rule 55(c) motion with motions under Rules 50, 52 and 59, such motion would toll the time for filing notice of appeal a second time. ARAP 4(a). The forty-two day limit would begin to run anew from December 9,1977, the day the motion for rehearing was denied. The appeal from the denial of the motion for rehearing must be dismissed. More than forty-two days elapsed between the denial of the motion and the filing of appeal on March 29, 1978. In addition, the appeal from the default judgment is dismissed where the filing of notice of appeal is calculated from December 9,1977, the date the motion for rehearing was denied. See ARAP 4(a).

A motion to set aside the default judgment and for the presiding judge to recuse himself was made on December 20, 1977 and subsequently denied on January 27, 1978. This motion may be considered a motion under ARCP 60(b)(6). Rule 60(b)(6) allows relief from a final judgment or order for “any other reason justifying relief from the operation of the judgment.” The motion was filed more than thirty days from the entry of the judgment on October 31, 1977; therefore, it could not be considered a Rule 55(c) motion. Skillman v. First State Bank of Altoona, Ala., 341 So.2d 691 (1977). The appellant-defendant, Mr. Woods, asserted the judge was biased for the plaintiff when he dismissed the case because he was previously in a partnership with the plaintiff’s lawyer. The order refusing relief under Rule 60(b)(6) is a final, appealable order. Welch v. G.F.C. Credit Corp., Ala.Civ.App., 336 So.2d 1346 (1976). However, more than forty-two days elapsed between the denial of the motion on January 27, 1978 and notice of appeal filed on March 29, 1978; therefore, the appeal from the order denying the Rule 60(b)(6) motion comes too late.

Finally, there is an appeal from the denial of appellant-defendant’s motion to proceed in forma pauperis. The motion was made on February 16, 1978 and denied on March 3, 1978. ARAP 24 provides that once a motion to proceed on appeal in forma pauperis is denied by the trial court the party may file a motion to so proceed in the appellate court within twenty-eight days after service of notice of the action in the trial court. 9 Moore’s Federal Practice § 224.02 at 3556 n. 13 (2d ed. 1975) provides:

Prior to the promulgation of the Appellate Rules, it was held that a denial of permission to appeal in forma pauperis was appealable as an interlocutory order. Rule 24 substitutes a motion procedure for an appeal.

In the case at bar appellant did not file his motion to appeal in forma pau-peris in the Court of Civil Appeals as is provided by Rule 24, ARAP, but rather attempted to appeal the trial court’s denial of his motion. As suggested above, the present procedure in the federal courts to review the denial of a request to appeal in forma pauperis is not by appeal, but by motion in the appropriate appellate court. Rule 24, FRAP. Our appellate Rule 24 sets out an almost identical procedure. Thus, we conclude that the appellant failed to comply with Rule 24, ARAP by not filing a motion to proceed in forma pauperis in this court; consequently, the trial court’s order denying the request to proceed in forma pauperis cannot be considered on this appeal. See Walker v. Mathews, 546 F.2d 814 (9th Cir. 1976).

APPEAL DISMISSED.

WRIGHT, P. J., and HOLMES, J., concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    MID-STATE HOMES, INC. v. Walter STARTLEY and Elizabeth Startley.
    Civ. 1613.
    Court of Civil Appeals of Alabama.
    Jan. 24, 1979.
    R. A. Norred, Birmingham, for appellant.
    Billy L. Church of Church, Trussell & Robinson, Pell City, for appellees.
   WRIGHT, Presiding Judge.

This is a statutory action for fraud brought under § 6-5-101, Code of Alabama (1975). Plaintiffs recovered a verdict and judgment for $7,780. Defendant appeals. We affirm.

Defendant held a mortgage on a house constructed by them in 1973 for the Good-wins. The amount of the mortgage including finance charges was originally $19,944. In January 1975, Tyler purchased the house and assumed the mortgage with permission of defendant. In March 1976, plaintiffs purchased the house from Tyler and agreed with Tyler to assume defendant’s mortgage. Plaintiffs began making the payments on the mortgage although the account remained in the name of Tyler. There was evidence that defendant knew through its resident agent that plaintiffs had purchased from Tyler and were in fact making the mortgage payments although there had been no record assumption and transfer of the account on defendant’s record.

Plaintiffs were delinquent in making payment and were visited by defendant’s collector while residing in the house. Plaintiffs told defendant’s agent they were considering selling the house and inquired as to the mortgage balance. The agent informed them that the balance was about $15,000 but a pay-off figure would be considerably less. Plaintiffs were told to request the balance and a pay-off figure from defendant’s office in Tampa, Florida.

In June 1977, plaintiffs listed the house for- sale with Lovejoy, a real estate broker. Believing the pay-off on the mortgage to be approximately $9,500, and desiring to clear approximately $10,000 from the sale, plaintiff listed the house for sale at a price of $19,500. In the meantime, inquiry was made of defendant’s office in Tampa as to the balance owed on the mortgage and the amount for which it could be paid off.

Plaintiffs received a letter from defendant dated June 28,1977. That letter was in body as follows:

“We are pleased to advise that the amount necessary to pay this account in full is $1,871.71.
The out-standing balance on this account, including any unpaid insurance premiums is $10,889.00; however, a discount in the amount of $8,517.29 is being allowed for prepayment, which makes the net amount due $1,871.71.
This payoff will be good until July 31, 1977 after which time a new payoff will have to be quoted. Please let us hear from you on or before that date.” (Plaintiffs’ Exhibit 1.)

Prior to receiving the letter, there had been no prospects for sale of the house for the list price of $19,500. After receiving the letter indicating a pay-off of only $1,871.71, plaintiffs reduced their list price to $14,900. On July 19, 1977, a contract of sale at that price was executed with a purchaser.

There was a delay in closing the sale beyond July 31. The agent therefore requested a new pay-off figure from defendant. He received a letter from defendant dated August 2, 1977, stating the unpaid balance to be $15,334.80, with a pay-off of $9,651.78. The purchaser insisted on adherence to the contract of sale at the agreed price of $14,900. Plaintiffs acquiesced. They paid defendant $9,651.78 and defendant satisfied the mortgage. Plaintiffs had remaining $5,200 and owed the real estate agent a fee of $1,490.

The testimony of defendant was that the letter of June 28 contained misrepresentations of the true state of its mortgage due to a computer error and that such error was innocently made. That testimony is not disputed. However, under the statute, even though a misrepresentation be made by mistake and innocent of any intent to deceive, if it is a material fact and is acted upon with belief in its truth by the one to whom it is made, it may constitute legal fraud. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977).

Defendant's first issue on appeal is the contention that no action could lie upon the representations of the letter of June 28 because it was merely an offer made without consideration and expired before acceptance by plaintiffs. The theory of defendant that the principle of nudum pactum is a defense to plaintiffs’ suit does not apply. Plaintiffs’ action is not upon a contract and is not founded upon a contractual relationship. It is not necessary to an action for misrepresentation that there be a contractual relationship between the rep-resentor and the person deceived. Standard Oil Co. v. Johnson, 276 Ala. 578, 165 So.2d 361 (1964).

The second issue presented by the defendant is that the award of damages is unsupported by the evidence.

Plaintiffs’ evidence was that they were informed by the agent of defendant at the time they first considered selling, that the pay-off on the mortgage was probably around $9,500. They considered they had to net $10,000 if they sold. Therefore, they originally listed the house at $19,500. There were no buyers at that price. When they received the letter showing a pay-off on the mortgage at only $1,871.71, they immediately offered the house for sale at $14,900. The real estate agent testified that $14,900 was a fair market price. They sold it at that price. There is no support in the evidence that plaintiffs suffered damages because they reduced the price of the house. The price received was indisputably a fair market value. No evidence was presented that the house would have sold for more. Therefore, if plaintiffs suffered damages, they arose from a decision to sell at $14,900, made in reliance upon the representation of defendant that they could satisfy the mortgage for $1,871.71.

There is no dispute that defendant made the representation, and that it was an erroneous representation. If plaintiffs relied upon that false representation, reasonably believing it to be correct and because of such belief sold their home, they were entitled to recover damages suffered. The answers to these issues were properly given by the jury. Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So.2d 476 (1974). The jury found liability in this case. The question presented is as to the basis for the award of damage.

The measure of damage must be the difference between the amount represented as a pay-off in the letter of June 28 and the amount plaintiffs actually were required to pay defendant in order to fulfill their contract of sale. The first was $1,871.71. The latter was $9,651.78. The difference is $7,780.07. Deducting the odd cents, we have the amount set by the jury. The standard for measuring damages in fraud cases has been met. Fogleman v. National Surety Co., 222 Ala. 265, 132 So. 317 (1931). The verdict and judgment below are affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Defendant has not raised by this appeal any issue that there was not evidence for the jury to find a verdict for defendant on the basic question of liability but only that it failed to establish damage.


text:
    Alton Ernest KELLEY and Mary Louise Kelley v. STATE DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 1650.
    Court of Civil Appeals of Alabama.
    Jan. 24, 1979.

      L. H. Walden, Montgomery, for appellants.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, General, Jamie L. Pettigrew, Asst. Attys. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by the parents from a judgment of the Family Court of Montgomery County, Alabama, entered after hearing held as provided by § 12-15-65, Code of Alabama (1975). The parental rights of the parents of two minor children previously found to be dependent children under the statute were terminated and permanent custody of the children was given to the State Department of Pensions and Security for placing for adoption.

The only issue presented by this appeal is whether written reports of a social worker concerning her investigation and findings relating to the children and the parents were properly accepted into evidence by the court over the objection of hearsay interposed by counsel for the parents.

The argument of counsel for appellants consists of one paragraph covering less than half a page. It contends that appellants were deprived of the right to confront and examine the state’s witnesses. The only authority cited is Section 6 of Article 1 of the Alabama Constitution. That article applies to the rights of an accused in a criminal prosecution and has no application in this case. The hearing here was a disposition hearing only and to no extent was a criminal prosecution.

Section 12 — 15—65(f), Code of Alabama (1975) specifically provides that the court at such hearings may receive oral and written reports and rely upon them to the extent of their probative value. The record shows that the reports were prepared in duplicate well in advance of the hearing and counsel was provided copies and opportunity to examine them. The author of the reports was in court and available for examination, as to the content and source of the matters stated therein. Counsel was given opportunity to subpoena witnesses in relation thereto. We find no error in the admission and consideration of the reports by the court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Lewis CUNNINGHAM v. MILSTEAD PULPWOOD COMPANY, INC., a corporation.
    Civ. 1729.
    Court of Civil Appeals of Alabama.
    Jan. 24, 1979.

      James R. Bowles, Tallassee, for appellant.
    Dan E. Schmaeling, Montgomery, for ap-pellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The record reveals the following: On February 11, 1977, the employee was injured while cutting wood during the course of his employment with the employer. The employer paid compensation to the employee, the last payment being made on March 28, 1977. On June 16, 1977, the employer paid the employee’s hospital expenses.

In May, 1978, the employee brought suit for workmen’s compensation benefits alleging that as a result of his injury, he was totally disabled. The employer moved for summary judgment on the ground that the one year statute of limitations set forth in the Code of Ala.1975, § 25-5-80, barred the action. Specifically, the employer contended that its last compensation payment was made to the employee on March 28, 1977, and because the employee’s suit was.filed on May 18, 1978, more than one year after said payment, the suit was not timely. When the trial court granted summary judgment in favor of the employer, the employee appealed.

The dispositive issue on. appeal is whether a medical payment made by an employer is a payment of compensation so as to toll the statute of limitations. We hold that is not and affirm.

Initially we note that § 25-5-80 provides a one year statute of limitations for claims brought pursuant to articles 2 and 3 of the Workmen’s Compensation Act. Code of Ala.1975, § 25-5-80. The statute begins to run from the date of the injury. Davis v. Standard Oil Co., 261 Ala. 410, 74 So.2d 625 (1954). The limitation is tolled, however, where the employer makes compensation payments to the injured employee and the section provides that in such instances, the one year limitation begins to run at the time the last compensation payment is made. B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967).

The employee contends that because the employer paid medical expenses on June 16, 1977, this constituted a payment of compensation within the meaning of § 25-5-80 and thus the May, 1978, filing of the complaint was within the one year limitation. We disagree because the payment of medical expenses is not a payment of compensation.

Section 25-5-1 expressly provides that the term “Compensation” does not include medical or surgical treatment. The section states:

COMPENSATION. Such term indicates the money benefits to be paid on account of injury or death. Strictly speaking, the benefit which an employee may receive by action at law under article 2 of this chapter is damages, and this is indicated in section 25-5-31. To avoid confusion, the word ‘compensation’ has been used in this chapter, but it should be understood that under article 2 the compensation by way of damages is determined by a civil action. Such term does not include medical and surgical treatment and attention, medicine, medical and surgical supplies, crutches and apparatus furnished an employee on account of an injury. (Emphasis supplied.)

While the employee agrees that this section excludes medical expenses from compensation, it is contended that the definition is intended to apply to only article 2 of the Act and in no way defines “compensation” as that term is used in § 25-5-80’s statute of limitations. We find no merit to this contention.

The introductory language of § 25-5-1 makes clear that the definitions contained therein apply throughout the Act unless the context clearly indicates a different meaning should apply. A plain reading of the language in § 25-5-80’s limitation features does not indicate that the word “compensation,” as used in that section, should be given a different meaning than that provided in § 25-5-1. Liberty Mutual Ins. Co. v. Manasco, 271 Ala. 124, 123 So.2d 527 (1960); Sam’s Place v. Middleton, 39 Ala.App. 481, 103 So.2d 812 (1958).

Plaintiff further maintains that Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948), supports the proposition that the payment of medical benefits is considered a payment of compensation sufficient to toll the statute of limitations. While the employee’s reading of Ingalls is undoubtedly correct, the legislature, subsequent to the decision, amended the Act to provide that medical payments are not “compensation” within the meaning of the Act. Liberty Mutual Ins. Co.; and Sam’s Place, supra.

While this court is aware of the fundamental beneficent purposes of the Workmen’s Compensation Act, Dan River Mills, Inc. v. Foshee, 365 So.2d 1232 (1979), we must give effect to the plain language of the statute as enacted by the legislature. Davis v. Standard Oil, supra. This is so regardless of our view as to the wisdom or fairness of the statute. See e. g., Liberty Mutual Ins. Co., supra.

In view of the above, we hold that a medical payment made by an employer is not a payment of compensation so as to toll the one year statute of limitations set forth in § 25-5-80. Consequently, the trial court did not err in granting summary judgment in favor of the employer on the ground that the employee’s suit was not timely filed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Herbert TEMPLE v. STATE.
    6 Div. 813.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Stephen R. Arnold of Jones, Arnold & Roden, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Birmingham, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the unlawful possession of cocaine in violation of The Alabama Controlled Substances Act. Section 20-2-20, Code of Alabama 1975. Sentence was set at thirty months’ imprisonment.

The only question presented on appeal is the legal sufficiency of the State’s evidence in proving the appellant’s possession of cocaine. The only disputed fact is the appellant’s knowledge of the presence of the cocaine. The remaining facts are undisputed.

The appellant resided with his wife and four children at 2001 — 16th Avenue North, Birmingham, Alabama. On August 12, 1977, several officers of the Birmingham Police Department executed a search warrant at this address. Entry was gained only after four series of knocks and a three or four minute waiting period. Mrs. Temple opened the door. The only occupants in the house were Mrs. Temple and her children. The appellant was at work.

A small amount of cocaine (1.153 grams) was found in a Goody’s Headache Powder packet located in the freezer compartment of the refrigerator in the kitchen. Though the search was not limited to the kitchen no other drugs were found. Four days later the appellant was arrested. These facts constitute the entire case of the State. No information concerning the search warrant or the basis for probable cause was introduced or offered.

The appellant testified that he had no knowledge of the presence of the cocaine; that his kitchen had been recently remodeled and that several workmen had access to the refrigerator.

The specific question is whether the presence of a prohibited drug located in the refrigerator in the kitchen of the residence of the accused and his family constitutes evidence of constructive possession by the accused?

Knowledge by the accused of the presence of the controlled substance is an essential element and prerequisite to conviction for the offense of illegal possession of a controlled substance under The Alabama Controlled Substances Act. Walker v. State, 356 So.2d 672 (Ala.1977). Such guilty knowledge may be established by circumstantial evidence. Walker v. State, 356 So.2d 674, 675 (Ala.Cr.App.), cert. denied, 356 So.2d 677 (Ala.1978). It may be proved by evidence of acts, or conduct of the accused, from which it may be fairly inferred that he knew of the existence of the narcotics at the place where they were found. Walker, 356 So.2d at 676. Where constructive possession is relied on the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973). Proof of constructive possession alone will not justify a conviction. Cook v. State, 341 So.2d 183 (Ala.Cr.App.1976); Coker v. State, 25 Ala.App. 191, 143 So. 206 (1932).

In McHellen v. State, 351 So.2d 689 (Ala.Cr.App.1977), this Court held that the evidence presented a jury question on the issue of the knowledge of the accused of the presence of heroin.

“We think the evidence sufficiently supported an inference for the jury’s consideration that appellant knew the controlled substance was in his house:
(a) Appellant was home when the search was made and had lived at such address since 1938.
(b) Even though appellant testified that he rented one bedroom to a young lady, the heroin was found in the kitchen area, a neutral part of the house.
(c) The heroin was found underneath a loose piece of linoleum tile in front of a refrigerator, a place which is not easily unnoticed.”
McHellen, 351 So.2d at 692. (Emphasis added)

McHellen does not stand for the proposition that the mere fact that narcotics are found in a “neutral” area of a house jointly occupied by the accused and another person will support an inference that the accused had knowledge of the presence of the controlled substance. McHellen coupled ownership and occupancy with the relatively obvious location of the drugs to supply the inference of knowledge.

When the accused does not have the exclusive possession of the premises where a controlled substance is found, some other corroborating circumstance must exist before he can be convicted of illegal possession. This is clearly demonstrated in the situation where drugs are found in an automobile occupied by several persons. The mere presence of an accused in an automobile containing drugs is not sufficient to establish that the accused had knowledge of their presence. Roberts v. State, 349 So.2d 89, 91 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (1977); Parks v. State, 46 Ala.App. 722, 724, 248 So.2d 761 (1971); Pryor v. State, 48 Ala.App. 465, 265 So.2d 907 (1972). However knowledge of the presence of drugs may be inferred from the accused’s possession, control and ownership of the vehicle. Roberts, supra; Kinard v. State, 335 So.2d 916, 920 (Ala.Cr.App.), reversed on other grounds, 335 So.2d 924 (Ala.1976).

' The well established rule in cases involving possession of prohibited liquors is that where illegal beverages are found on the premises of an accused during his absence, and other persons also occupy the premises, then the circumstance of the beverage being found on the premises is not sufficient, without more evidence, to establish scienter to the degree required to support a conviction for illegal possession. Clayton v. State, 22 Ala.App. 276, 114 So. 787 (1927) (Liquor found in the back part of a pressing shop owned by accused and evidence that others had recently been in back of shop was insufficient); Huckabaa v. State, 23 Ala.App. 333, 125 So. 202 (1929) (Fact that whiskey was found in the home of the accused when he was absent, but his wife was present, in a receptacle in the dining table and under one of the leaves will not support a conviction); Duncan v. State, 25 Ala.App. 197, 143 So. 201 (1932) (Evidence that accused came from bathroom where whiskey container had been broken in commode was insufficient); Cunningham v. State, 26 Ala.App. 312, 159 So. 267 (1935) (Evidence disclosed that defendant was very old, sick, and bedridden for two months before raid and did not know of presence of whiskey in an ol4 trunk, while only evidence tending to connect him with whiskey was that those who attended him occasionally gave him from a cup some eggs with whiskey in them, insufficient); Pate v. State, 27 Ala.App. 73, 165 So. 783 (1936) (Whiskey found in the home of accused in a secret and hidden device under a table, which belonged to another who had recently left and had been unable to take his table with him in his car, insufficient); Bivens v. State, 27 Ala.App. 304, 171 So. 755, cert. denied, 233 Ala. 304, 171 So. 756 (1936) (Whiskey found in a sack of peanuts in one of the back rooms of the house when the accused was not home and evidence disclosed that two other men lived in the same house was insufficient); Wilbanks v. State, 28 Ala.App. 456, 185 So. 770 (1939) (The bare fact that the accused was the husband of the woman who owned and occupied the home in which the beer and whiskey were confiscated was insufficient to support conviction); Lance v. State, 28 Ala.App. 571, 190 So. 108 (1939) (Fact that whiskey found under kitchen floor — by means of raising a loose plank — standing alone was not sufficient to support conviction); Thurman v. State, 29 Ala.App. 394, 196 So. 748 (1940) (Whiskey and some empty beer cans and bottles found in different places, adjacent to defendant’s home and premises, while defendant and his wife were absent therefrom was insufficient); Grimes v. State, 38 Ala.App. 94, 97, 76 So.2d 684 (1954) (Whiskey found in a churn under a table in kitchen of house where the accused, his wife, and another lady lived is insufficient to show knowledge by accused. Grimes listed other factual situations as we have done here. The court noted that, “A four gallon churn in a kitchen, a domain usually controlled by the [woman] of a house, is hardly an object which in itself would create suspicion on the part of the average male or give notice as to its illegal contents. Certainly such fact is insufficient to overcome appellant’s presumption of innocence.”); Kennedy v. State, 39 Ala.App. 588, 106 So.2d 257 (1958) (The finding of whiskey in a pitcher in the kitchen and of the whiskey in the sink trap, coupled with the defendant’s being in the doorway between the kitchen and the living room when presented with the search warrant, were sufficient to allow the jury to infer that he, the head of the household, was the possessor of the almost disposed of whiskey). These examples are only a few of the many cases and different factual situations which support the proposition that the finding of liquor on the accused’s premises in and of itself will not support a conviction without showing his knowledge or connection with it. Compare Cunningham, supra, with Williams v. State, 27 Ala.App. 548, 176 So. 314 (1937), in which the evidence was found to support a conviction for violating the prohibition law where the whiskey, to which no one else had access, was found in the defendant’s room in a locked trunk, to which the defendant had the key. These principles are equally applicable to prosecutions for the possession of controlled substances. Walker, 356 So.2d at 674; Rueffert v. State, 46 Ala.App. 36, 39, 237 So.2d 520 (1970).

A review of these and numerous other cases convinces this Court that the law in Alabama is clear that where a person is in possession, but not exclusive possession of premises, it may not be inferred that he knew of the presence of any controlled substance found there unless there are other circumstances tending to buttress this inference. 56 A.L.R.3d 948, 957 (1974). See also Mulligan v. State, 513 P.2d 180 (Wyo.1973); Feltes v. People, 178 Colo. 409, 498 P.2d 1128 (1972). This holding is simply a corollary of the presumption of innocence and the rule that to convict a person on circumstantial evidence it is necessary that the evidence exclude all rational conclusions except that of the defendant’s guilt. Campbell v. State, 28 Ala.App. 240, 182 So. 89 (1938); Copeland v. State, 23 Ala.App. 91, 121 So. 445 (1929). While nonexclusive possession may raise the suspicion that all occupants had knowledge of the contraband found, a mere suspicion is hot enough. Campbell, supra. What is required is some evidence that connects the defendant with the contraband that is found.

While the kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case, 56 A.L.R.3d 948 (1974), it has been generally stated that:

“The kinds of circumstances which provide such a connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary' connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on the defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.
“The kinds of evidence which might be relevant, but which by themselves do not add the necessary connection are: (1) admissions of previous use; (2) conduct that might be construed as evidencing a consciousness of guilt which was not displayed upon the defendant’s confrontation of the possibility that an illicit drug would be discovered; (3) evidence of previous use; (4) evidence that showed the defendant’s physical proximity to the contraband.”
9 Land and Water L.Rev. 236, 248-249 (1974).

There was not one single circumstance here that would tend to connect the appellant with the cocaine other than the fact that the drug was found in the refrigerator of the kitchen in his home while he was at work. This simply will not sustain a conviction for possession.

“To permit a conviction of this character to stand upon such testimony would be unconscionable. It would be an exceedingly dangerous precedent to hold that the mere finding of prohibited liquor in the home of a citizen, with nothing to connect the accused therewith, and nothing to indicate or to impute any knowledge of the fact to him, is sufficient to deprive him of his liberty and brand him as a criminal before the world. If such were the law, every citizen would be at the mercy of an enemy who by merely surreptitiously placing the inhibited article in the home of his enemy could wreak his vengeance through the aid of the law in this dastardly manner. The law contemplates no such condition, nor will the courts countenance such a thing. The law in its wisdom provides that every person charged with crime is presumed to be innocent, and this presumption is not an empty or meaningless provision; to the contrary, it is regarded as evidence in behalf of the accused, and attends him as such throughout the trial, or until the presumption is overcome by legal evidence which shows his guilt beyond all reasonable doubt and to a moral certainty. Conjectures, suspicions, hatred, prejudices, conclusions, and guesswork have no place in the proper administration of the law; and to willfully hold otherwise would do violence to the conscience and integrity of the person so doing, be he judge, juror, officer, or witness.”
Talbot v. State, 23 Ala.App. 559, 129 So. 323 (1930), quoted in Bivens v. State, 27 Ala.App. 304, 305, 171 So. 755, cert. denied, 233 Ala. 304, 171 So. 756 (1936).

Since the evidence is insufficient to sustain the jury’s verdict this case must be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND RENDERED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

Though it has no bearing on the legal conclusions and principles involved, we will extend our opinion to include the fact that there was testimony presented that the refrigerator where the cocaine was found was located in the kitchen of the apartment where the appellant and his family resided. The appellant testified that he was “remodeling the kitchen, front bedroom, remodeling the whole house really”; that this was going on about a month before and even after August 12th, the date the cocaine was found; and that some days there would be four and some days six workmen coming and going from his home on a regular basis.

No argument is presented on application for rehearing that was not considered by this Court in writing our initial opinion. Therefore the application is denied.

APPLICATION OVERRULED; OPINION EXTENDED.

All Judges concur.


author: ADKINS, Justice. BOYD, Justice,

text:
    Michael SALVATORE, Appellant, v The STATE of Florida, Appellee.
    No. 48513.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Rehearing Denied Feb. 14, 1979.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., and Richard L. Wilson, Sp. Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death, and also adjudging him guilty of conspiracy to commit murder for which he received a concurrent fifteen-year sentence.

The victim DeWitt, a person of financial means, engaged in various business transactions with Shapiro, which were conducted through an office rented by the victim and Epstein. Shapiro relied upon the victim to finance not only his various ideas or projects, but also personal living expenses. Unfortunately, the ideas and projects proved to be unsuccessful and the victim soon became disenchanted with the relationship. When the business relationship faltered, Shapiro considered the elimination of DeWitt.

The defendant Salvatore and Murren worked at a marina and became acquainted with the victim and Shapiro because of the latter’s interest in boats.

In late December Murren and the defendant delivered a stolen boat for the victim to Epstein’s house, located on a canal with dock facilities. The serial numbers were removed from the sail and the boat was secured at the victim’s request.

Shapiro, Murren and defendant formulated the plan for the murder. The victim was to be brought to a car driven by Murren and the defendant in which there would be some marine radios which the victim could use for this newly acquired boat. While the victim was looking at the radios Murren was to strike him over the head with a metal pipe, push him into the trunk of the car, take him to a waiting motorboat, weight him with a cement block, take him to the Gulfstream, and dump him overboard. The sailboat would then be sold to a third party after changing the identification, and the victim’s car would be left at the Epstein’s house. It would then appear the victim had drowned while operating his sailboat.

The plan was going very well until the victim looked into the trunk of the car and Murren failed to hit him with the lead pipe. When Murren did not perform his duty, a suggestion was made that they proceed to the office of the victim adjacent to the parking lot. As they left the automobile the defendant picked up the lead pipe and placed it in his jacket.

When they reached the office the victim and Murren discussed boat insurance and as they were looking at an art object on the wall, the defendant hit the victim on the head with the pipe. The defendant hit him again and, as the victim pleaded for help, the defendant threw the pipe to Murren and told him to hit the victim. Murren struck him twice on the neck and side. Defendant hit the victim a few more times on the head and the victim fell, asking for help. Defendant then struck him once more across the face. Blood splattered on the wall and over the carpet. Murren and defendant placed the victim’s body on the floor of a closet, shut the door and Murren left, seeking to purchase a box for the body.

The search for a box was unsuccessful, so, at the suggestion of defendant, Murren purchased rug cleaning material, plastic and indoor-outdoor carpeting. After attempting to clean the rug in the office, defendant and Shapiro cut out the blooded area of the rug with a knife. The body of the victim was rolled into the plastic and the indoor-outdoor carpeting, then brought out of the office and placed in the trunk of Murren’s car. The defendant drove Murren’s car and Murren drove DeWitt’s car to Murren’s house, where they placed cement blocks in the trunk and hitched a speedboat to the car. Defendant and Murren then drove to a boating area, disposing of the cleaning utensils along the way. They placed the body in the speedboat and went out to sea. They tied cement blocks on the body and threw it into the water near the Gulfs-tream.

When they returned to shore Murren drove DeWitt’s car to the Epstein’s residence. Defendant followed in Murren’s car. Murren then boarded the sailboat at Epstein’s and delivered it to the third party for sale. Defendant picked Murren up after the sale and subsequently split the proceeds.

The day after the homicide, defendant and Murren met Shapiro at the office. The three of them then purchased similar carpeting and spray cement so that they could repair the damage to the office.

When the victim did not return home, his wife notified the authorities and, after several days, F.B.I. Agent Flynn entered the investigation. He discovered that Murren was wanted on a fugitive warrant from Colorado and took him into custody. Mur-ren then told of the murder of the victim DeWitt and this prosecution resulted. There is ample evidence on which the jury could have based its verdict of guilt.

At the sentencing hearing defendant’s attorney announced that the defendant had instructed him to make no statement and present no evidence and not to object during the prosecutor’s statement to the jury on the penalty phase. The attorney announced that the decision of the defendant was against the advice of his attorney. Upon inquiry of the defendant, the court determined that he had consulted his attorney and the statement represented defendant’s views. The defendant stated that he understood and did not want to present anything to the jury during the sentencing phase. An advisory opinion was rendered by the jury by which a majority of the jurors recommended that the court impose the death penalty.

The court ordered a presentence investigation for “further information regarding mitigating circumstances only.” The court then made its findings which included the following:

“The court, having heard all the argument of the state, and neither evidence nor argument from the defense during the penalty phase of the trial, ordered a pre-sentence investigation directed solely towards determining whether mitigating factors existed under the law and the facts of this case. The court had determined in its own mind prior to the ordering of the pre-sentence investigation that aggravating factors existed in this case and accordingly, I searched the pre-sen-tence investigation report and also various letters submitted by friends of the defendant which' I have made a part of the court file in this case, solely to determine whether such mitigating factors were present.
“After having examined all of the evidence in the trial, the recommendation of the jury, pre-sentence investigation report, and letters submitted by friends of the defendant, the court finds that it is in agreement with the advisory sentence rendered by the jury and does hereby impose the death penalty upon the defendant, MICHAEL SALVATORE.
“The court makes the following findings of fact in doing so:
“1. The murder committed in this case was especially heinous, atrocious and cruel. There is no question but that any civilized person — whether in favor of or against the death penalty— would cry out with indignation if this Court were to sentence this or any other defendant to die in the manner that the evidence shows BURT DeWITT died. The victim in this case did not meet a swift, relatively painless death. Instead, he was bludgeoned to death, with utter indifference to his obvious suffering and cries for help. Very clearly, this killing fits the definitions of ‘heinous,’ ‘atrocious’ and ‘cruel’ given by the Supreme Court of this state in State vs. Dixon, 283 So.2d page 1. The court finds that even were there no other aggravating circumstances in this case, this circumstance alone would be sufficient to outweigh the one possible mitigating factor the Court finds in the existing case.
“2. The Court finds, however, that there is an additional aggravating factor in that this crime was committed for pecuniary gain. The defendant was to gain directly from the proceeds of the sale of the boat, which he admitted he had previously stolen on behalf of the victim, and which he then stole again from the victim for the purposes of sharing in the proceeds of the sale, as well as for purposes of concealing the homicide that he had committed. The defendant also hoped to gain a pecuniary advantage indirectly in that he had been promised by the co-defendant future financial rewards for the commission of this crime.
“3. The only mitigating factor the Court can find after extensive search of the record and the supporting documents is that the defendant has no ‘significant’ history of prior criminal activity. The record shows a prior conviction for a burglary for which the defendant received probation, and the defendant admitted during the course of testimony that he had actually committed the theft of the boat which figured in the commission of the instant crime. The Court is of the opinion that under the circumstances of this case, even if the defendant had no history whatever of prior criminal activity, the aggravating factors in this case would outweigh that mitigating factor. As it is, all the Court finds is that the defendant’s history of prior activity is not significant.
“4. As for the other mitigating factors contemplated by law, the Court makes the following findings:
“At the time of this homicide, the defendant was not under the influence of extreme mental or emotional disturbance. The Court finds it significant that although a psychiatrist gave evidence on behalf of the defendant in an effort to mitigate the offense, he did not provide such testimony. There is no indication that the victim was a participant in the defendant’s conduct, or consented to this homicide. The defendant’s participation in this offense was certainly not minor. Indeed, he was the most active participant.
“He did not act under duress or the substantial domination of any other person, but, to the contrary he volunteered to commit this homicide as a favor, although subsequently he derived financial benefit from it. There is no indication that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. Indeed, the evidence is to the contrary. He went to great lengths to conceal the crime that he had committed. He planned it in great detail and discussed several alternatives before it occurred. He fabricated false testimony and sought to procure false testimony from at least one other person besides Larry Murren in an effort to conceal this crime. The Court finds it ironic that the defendant would have the Court believe that he would lie to save himself from a five-year felony, but would be truthful when the stakes were considerably higher as in a capital offense. And, last, the Court does not find that the age of the defendant at the time of the crime, approximately thirty-one years of age, is in any way a mitigating factor in this case.
“5. Notwithstanding the absence of any significant mitigating factors in this case, the Court considered the pre-sentence investigation report and letters from the defendant’s minister, psychiatrist, and friends in an effort to see if there were anything else in the record to justify mitigation of the sentence. The Court will not go into detail as to each of the letters of comments from each of these people but, generally speaking, the substance of their comments, all of which are made a part of this record, and all of which are in the court file, can be broken down into the following categories:
“a. The witness believes the defendant to be innocent. Under no circumstances would the Court consider this as a mitigating factor. A jury has determined, on the basis of competent evidence, to the contrary. I am in no way disposed to take issue with their verdict as to guilt or innocence.
“b. The defendant has a wife and daughter, who are good people, and will suffer needlessly if he is condemned to die. Virtually every defendant in virtually every criminal case has some loved ones — mothers, wives, brothers and sisters, daughters, who will suffer. It would be unconscionable for the court to show mercy to those who have wives and families while condemning to death defendants who committed the identical acts and weren’t so blessed.
“c. The defendant is a religious person and a ‘good’ man. The defendant’s actions and conduct before, during, and after the offense and at the trial, contradict this hypothesis. The Court has observed the defendant on many occasions now. Never has the Court observed the slightest indication of remorse or regret for anything, other than having been caught.
“d. The defendant has been a good neighbor and the witness would trust his children with the defendant. The Court does not in any way find this a mitigating factor.
“6. Reference was made in the pre-sentence investigation and at the time of the penalty phase of the trial to the fact that the defendant did not want the Court to consider any mitigating factors and that he felt the death penalty would be advantageous to him on appeal. The Court wants to make clear that in no way did this desire of the defendant’s in any way enter, into the decision which the Court has arrived at. In sharp contrast to what the evidence shows were the actions of the defendant, the Court has agonized over this decision but feels that its personal desires must yield to what its interpretation of the law dictates.”

During the cross-examination of defense witness Enrique Dobarganes, the State was allowed to make inquiry concerning a statement of Murren that he had received a sentence of ten years for his part in the killing. Also, on rebuttal the State was allowed to prove by Judge Cowart that Murren had entered a plea of guilty to second degree murder and received a sentence of ten years for his involvement in this homicide.

The defendant moved for a mistrial during the cross-examination of Dobarganes and insisted that it was reversible error to allow Judge Cowart to testify as to the plea entered in the case. Defendant says that the testimony regarding the sentence brought out on cross-examination of Dobar-ganes was beyond the scope of direct examination, and the rebuttal testimony regarding Murren’s guilt and sentence was improper since no prior testimony was thereby rebutted.

As a general rule, it is improper for the State to disclose during trial that another defendant had been convicted. Thomas v. State, 202 So.2d 883 (Fla.3d DCA 1967). The case sub judice presents an exception to this rule.

During the examination of Dobar-ganes by defense counsel, the following occurred:

“Q. All right; what did you say to him? What did you say to Larry Murren and what did Larry Murren say to you, sir?
“A. I asked him what was he jailed for. He said murder.
And I asked him if he had really killed the guy. That’s when he said that he didn’t kill the guy and that the guy was not dead and that the guy was out of Florida. And that was about all.”

The body of the victim was never recovered and this testimony interjected the question of whether the victim was, in fact, alive. The fact that Murren entered a plea of guilty of second degree murder on the homicide of the victim was relevant to show a statement by Murren inconsistent with the statement testified to by Dobarganes. Through cross-examination defense counsel made an excellent attack on Murren’s credibility showing that he had lied previously under oath, had fled Colorado as a fugitive from felony charges, had carried a concealed weapon and was an adulterer. The plea of Murren in the murder case was appropriate evidence to bolster the credibility of his testimony that the victim was dead.

In any event, Florida case law clearly states that a motion for a declaration of a mistrial is addressed to the sound discretion of the trial judge. Strawn v. State ex rel. Anderberg, 332 So.2d 601 (Fla.1976); Paramore v. State, 229 So.2d 855 (Fla.1969); modified on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); Tate v. Gray, 292 So.2d 618 (Fla.2d DCA 1974); Warren v. State, 221 So.2d 423 (Fla.2d DCA 1969); Prokos v. State, 209 So.2d 484 (Fla.3d DCA 1968); Baisden v. State, 203 So.2d 194 (Fla.4th DCA 1967); Garcia v. State, 142 So.2d 318 (Fla.2d DCA 1962). In this State the rule has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity. State ex rel. Wilson v. Lewis, 55 So.2d 118 (Fla.1951); State ex rel. Alcala v. Grayson, 156 Fla. 435, 23 So.2d 484 (1945); King v. State, 258 So.2d 21 (Fla.2d DCA 1972); Warren, supra; Kelly v. State, 202 So.2d 901 (Fla.2d DCA 1967).

There was no absolute necessity to declare a mistrial and, under the circumstances of the case, the evidence was admissible.

By motion to dismiss defendant alleged that Murren had given a statement under oath to detective Mallette, which statement was recorded and maintained by the police officer; that defendant had demanded the right to listen to or copy the recording, but the recording was “lost.” In support of the motion defendant relied upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and Johnson v. State, 249 So.2d 470 (Fla.3d DCA 1971); as well as Farrell v. State, 317 So.2d 142 (Fla.1st DCA 1975).

In Farrell v. State, supra, the court held that the State’s unintentional destruction of a tape recording of a drug transaction, of which defendants were charged, after timely demand for discovery, violated defendants’ right to due process. In a specially concurring opinion Chief Judge Boyer said:

“I concur, but in doing so I feel it desirable to point out that we reverse in this case based upon the uncontradicted facts as recited by the stipulation of the parties, particularly the allegation by the appellant that the erased tapes would have been beneficial to him and that destruction thereof resulted in prejudice. (See Treverrow v. State, Sup.Ct.Fla.1967, 194 So.2d 250 and Estes v. State, Fla.App. 1st, 1974, 294 So.2d 122.) In other words, the mere fact that a tape recording which might have been used in evidence was inadvertently destroyed does not ipso fac-to lead to reversal. On the contrary, it must be demonstrated that the destroyed evidence was material and that the defendant was prejudiced by the destruction.” At 144.

The United States Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), clarified the Brady decision when it said:

“The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.” At 794-95, 92 S.Ct. at 2568.

An Annotation, “ Withholding or Suppression of Evidence by Prosecution in Criminal Case as Vitiating Conviction,” in 34 A.L. R.3d at 16, contains the following:

“While virtually all of the cases in this annotation recognize the ‘harmless error’ rule — that in order to vitiate a conviction the error must have been prejudicial to the defendant — a few cases have suggested the use of a variable standard in determining how much of a showing of prejudice the defendant must make before his conviction will be overturned for suppression of evidence. Under such a variable standard, more deliberate or flagrant conduct by the prosecutor in suppressing evidence requires less of a showing of prejudice to the defendant, while more excusable conduct on the part of the prosecutor — such as mere negligence — calls for a showing of greater prejudice to the defendant before relief will be granted.
“The standard of prejudice to be met in order to obtain a new trial varies inversely with the degree to which the conduct of the trial has violated fundamental notions of fairness . . . .” At 68.

In the case sub judice the “suppression” was not deliberate. Detective Mallette appeared at the office of defense counsel for the purpose of a deposition. At that time the detective stated that he had the tape with him and proffered it for the use of defense counsel. They did not want to hear the tape at that time. When called as a witness in the case, the detective testified that he made a tape recording of a statement by Murren but that he didn’t know where the tape recording was. On cross-examination the detective stated that the tape recording had been in the case file. There was no further examination or inquiry concerning the contents of the tape. To show prejudice, defense counsel in his motion states that the taped statements directly contradict the testimony of Murren and that the tape recording was “lost.”

The standard of prejudice which must be met by defendant in order to obtain a new trial varies inversely with the degree to which the conduct of the trial has violated fundamental notions of fairness. See Kyle v. United States, 297 F.2d 507 (2d Cir. 1961), cert. den. 377 U.S. 909, 84 S.Ct. 1170, 12 L.Ed.2d 179.

In the case sub judice there was negligence on the part of the prosecution, but no misstatements to the court. At one time defense counsel had access to the tape. On cross-examination when asked “you have lied under oath,” the witness Murren answered “yes.” No judgment should be reversed unless we are of the opinion that error was committed which injuriously affected the substantial rights of the defendant. It should not be presumed that error injuriously affects the substantial rights of the defendant. Section 924.33, Florida Statutes; cf. North v. State, 65 So.2d 77 (Fla.1963); Dobbert v. State, 328 So.2d 433 (Fla.1976), application of harmless error to death cases. Under the circumstances of this case, we hold that the loss of the tape recording was not such a suppression of evidence by the prosecution as to vitiate the conviction or warrant a new trial.

The fact that non-practicing attorneys were excluded from jury service does not violate defendant’s constitutional right to be tried by a jury of his peers. See Williams v. State, 285 So.2d 13 (Fla.1973). Also, the attack upon the constitutionality of Section 40.01, Florida Statutes, is without merit, as this statute has been held to be constitutional. Wilson v. State, 330 So.2d 457 (Fla.1976). The other objections to the jury panel raised by defendant are without merit.

The Florida statute inflicting capital punishment has been held constitutional. Proffitt v. State, 315 So.2d 461 (Fla.1975), aff. 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), but defendant says that the death penalty is unconstitutionally imposed when a co-defendant on similar facts is not sentenced to death. He cites Slater v. State, 316 So.2d 539 (Fla.1975), where we held that the imposition of the death penalty against a defendant convicted of first degree murder occurring during a robbery was unconstitutionally applied where the accused had been an accomplice and the “triggerman,” who entered a plea of nolo contendere, was only sentenced to life imprisonment.

The case sub judice is quite different. The defendant formulated the plan to kill the victim and was the actual perpetrator of the crime. Murren refused to hit the victim in the parking lot in accordance with the original plan. Also, Murren refused to hit the victim while he was in the office until after defendant had begun beating the victim with the pipe. The defendant, not Murren, beat the victim to death and Murren was responsible for the entire case being brought to light.

During the course of the trial the conviction of Murren of second degree murder, as well as the sentence imposed, were brought out in evidence. The jury had this information at the time the advisory verdict recommending capital punishment was rendered.

Under the unusual circumstances of this case, the infliction of capital punishment should not be reduced merely because Mur-ren received a sentence for a term of years.

We have carefully reviewed the record in this case and it is our opinion that the aggravating and mitigating circumstances are such that the infliction of capital punishment is warranted.

Finding no error, it is our opinion that the judgments and sentences should be and they are hereby affirmed.

It is so ordered.

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

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

BOYD, Justice,

concurring in part, dissenting in part.

The 2800 page record in this case shows that appellant, along with two other men, committed first degree murder. His relative degree of participation with the two other killers in this cause does not mandate imposition of the death penalty. I would, therefore, affirm his guilt and reduce the sentence to life imprisonment without eligibility for parole during the first twenty-five years.

      . Slater v. State, 316 So.2d 539 (Fla.1975).


author: PER CURIAM. BOYD, Justice,

text:
    Ronald JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 47269.
    Supreme Court of Florida.
    Oct. 26, 1978.

      Jack J. Taffer of the Law Offices of Jack J. Taffer, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a conviction of murder in the first degree and a sentence of death. Jurisdiction vests pursuant to Article V, Section 3(b)(1), Florida Constitution. After careful review of the entire record we affirm the judgment and the sentence.

The death of the victim occurred during a robbery. On July 31, 1974, appellant and a companion, Willie Watts, approached an automobile parked in a downtown Miami parking lot and forced its occupants, Mr. Lamora and Mrs. Iturba, to give them their money and their jewelry. The couple was then forcibly transported from the scene of the robbery to a secluded area outside of town and directed to walk across a field toward a swamp. At this point Mr. Lamora attempted to subdue his captors and was shot. Somehow, he was able to escape into the woods, but Mrs. Iturba, who was also shot, could not get away. She was stuffed into the trunk of her car and transported to another isolated area where her body was hidden beneath the brush and shrubs. An electrical cord was tied around her neck, causing suffocation, the primary cause of death.

Much of the prosecution’s case was presented through statements made by the appellant while in the custody of the police. Appellant was arrested on August 1, 1974, at approximately 11:40 a. m. at a service plaza near Pompano, Florida, by an officer of the Florida Highway Patrol. At the time of his arrest appellant was immediately informed of his constitutional rights pursuant to the procedure outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Detectives from Dade County arrived at the Pompano Plaza at 12:30 p. m. and Miranda warnings were again given. Appellant was then transported to the Dade County Jail where, for the third time, Miranda warnings were given and questioning commenced. Up to this time, Mrs. Iturba’s body had not been found and appellant had not been charged with murder. (He had been arrested for the attempted murder of Mr. Lamora.) Sometime between his arrival at the Dade County Jail and 6:16 p. m., appellant described his activities in connection with the robberies and told the officers where Mrs. Iturba’s body could be found. At approximately 7:15 p. m., after the corpse had been recovered, appellant was again informed of his Miranda rights and was placed under arrest for first degree murder. At this point appellant signed a written waiver stating that he understood and waived his Miranda rights. He then related facts concerning the shooting of both Iturba and Lamora, and the shooting of a gas station attendant in a robbery committed during appellant’s attempt to leave the area. Before the taking of a formal written statement appellant was again told, “If you want an attorney to represent you at this time or any time during questioning you are entitled to such counsel. Do you understand that?” Appellant replied, “Yes, can I have one?” No counsel was furnished, and the questioning continued.

The trial judge determined that the formal written statement, taken after counsel was requested but before counsel was summoned, was inadmissible. All prior oral statements were admitted. To this, appellant objected. The test for determining the validity of a confession or statement is whether the statement was voluntarily and freely made after full Miranda warnings. Voluntariness need only appear by a preponderance of the evidence. See Wilson v. State, 304 So.2d 119 (Fla.1974) and State v. Harris, 276 So.2d 845 (Fla. 4th DCA 1973). We think that the trial judge’s determination that these statements were freely and voluntarily made was correct.

We have also reviewed the admission into evidence of two photographs of the victim and find these photographs relevant and therefore properly admitted. Alford v. State, 307 So.2d 433 (Fla.1975); Bauldree v. State, 284 So.2d 196 (Fla.1973); and State v. Wright, 265 So.2d 361 (Fla.1972).

Appellant next contends that the striking of nine prospective jurors, all opposed to the death penalty, deprived him of his constitutional right to a jury composed of a cross section of the community. The record clearly shows that these jurors expressed more than mere opposition. Of the nine prospective jurors, three stated unequivocally that they would not vote “guilty of first degree murder” for fear the appellant would be executed. One said he would not vote “guilty” of first degree murder “[i]f I had any doubt in my mind they are going to kill [appellant].” For religious, moral, or unstated reasons, four other jurors said they would vote to recommend death in no circumstances. The ninth juror responded to the questions of the court and counsel in such a manner that the only conclusion that can be drawn is that she would vote against death regardless of the facts presented or the instructions given.

This issue is governed by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the Supreme Court stated at page 522, 88 S.Ct. at page 1777:

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

We find that the trial judge, followed the dictates of Witherspoon, supra, and properly excused the jurors. See also Williams v. State, 228 So.2d 377 (Fla.1969) and Portee v. State, 253 So.2d 866 (Fla.1971).

Prior to sentencing, the trial judge ordered that a presentence investigation report be prepared in connection with the robbery and assault charges. He did not order a PSI in connection with the murder charge. Appellant, a first felony offender, contends that Fla.R.Crim.P. 3.710 requires a trial judge to order a presentence investigation report in all cases where a defendant has not previously been convicted of a felony. This point must be decided against the appellant on authority of this court’s recent opinion in Hargrave v. State, 366 So.2d 1 (Fla.1978). In that case we held that once a jury returns a verdict of first degree murder, the trial judge is exempt from the mandatory presentence requirements of the rule.

Finally, we must determine whether or not appellant was appropriately sentenced. § 921.141(4), F.S. (1975).

The trial judge made the following findings of fact:

THIS CAUSE came before the Court for trial by jury and after deliberations a verdict was rendered finding the defendant guilty of Murder in the First Degree, two counts of Robbery, and Assault With Intent to Commit Murder in the First Degree. Thereafter, the defendant was adjudicated guilty by the Court and the jury, after hearing additional matters, retired to consider an advisory sentence, pursuant to Florida Statute 921.141(2). The jury returned, and in open Court recommended that this Court impose the death penalty upon the defendant.
This Court independent of, but in agreement with, the advisory sentence rendered by the jury does hereby impose the death penalty upon the defendant, RONALD JACKSON, and in support thereof, as required by 921.141(3), submits this, its written findings upon which the sentence of death is based.
These findings are as follows:
1. That sufficient aggravating circumstances exist in this particular case that far outweigh any mitigating circumstances in the record. The death of this decedent occurred while the defendant was engaged in the commission of the crime of Armed Robbery. In addition thereto, the defendant clearly committed the capital felony in order to eliminate the victim of the robbery. He forcibly transported the victim against her will, from the scene of the robbery to a lonely desolate area to accomplish the capital felony. These facts alone, in this Court’s judgment could justify the imposition of the death penalty, but this particular killing is far more useless and heinous than this.
2. The Court finds that the capital felony committed in this case was especially heinous, atrocious and cruel. The Supreme Court of Florida in consideration of the legalities of the recently enacted death sentence in the State of Florida, decreed that these terms were to receive their common connotations and decreed that “heinous” meant “extremely wicked or shockingly evil”, “atrocious” meant “outrageously wicked and vile” and “cruel” meant “a design to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others”. See Dixon v. State, 283 So.2d 1, pg. 9, Florida Supreme Court, 1973. The facts of this case indicate the full meaning of “heinous, atrocious and cruel”. The victim of the robbery and murder was eight months pregnant. The fetus died because of the defendant’s actions. The victim was led across a wet field to a swamp. There she observed her friend shot in the arm by the defendant, who then turned the gun on her and shot her in the head. The obvious intention of the defendant, in this Court’s opinion, was to eliminate and execute the witnesses to the robbery. However, one of the victims escaped, after having been shot a second time. The murdered victim was literally stuffed into the trunk of her own car and transported to another isolated area of the County and her body hidden under thick brush and left. An electrical cord was tied around the victim’s neck, causing suffocation, the primary cause of death. In this condition, she and the fetus were left to die. Her body was located sometime later. The facts of this case are the most “heinous, atrocious and cruel” that this Court has ever considered. It is for crimes like the one at Bar that the death penalty is in fact appropriate. See Sullivan v. State, 303 So.2d 632 (Fla.1974).
3.This Court has observed the demeanor and the action of the defendant throughout this entire trial and has not observed any sign of remorse, indicating full well to this Court that the death penalty is the proper selection of the punishment to be imposed in this particular case.
The Court is not unmindful of the fact that the defendant is but 18 years of age and is further not unmindful of the fact that this is the defendant’s first conviction. However, aggravating circumstances in this case purely outweigh beyond and to the exclusion of every reasonable doubt, in the Court’s mind, the mitigating circumstances.
' In addition to the above enumerated matters of mitigation, it was urged by counsel for the defendant that he was under the domination of the co-defendant, yet to be tried, in this case. The Court finds this contention to be inconsistent with the evidence. The psychological determination subsequently made does not rebut the direct testimony of the other victim, who testified as to the role the defendant played in the commission of the crime. This Court finds, as a matter of fact, the defendant was the dominating factor and not the dominated. Counsel for the defendant further urged that the defendant did not appreciate the criminality of his act. The facts are inconsistent with this contention also. The obvious elimination of witnesses to a crime is conclusive proof that one is knowledgable of the criminality of his conduct, in this Court’s opinion.
Counsel for the defendant further contended that the ability of the defendant to conform his conduct to the requirements of the law was substantially impaired. Testimony was offered through two psychologists and a psychiatrist that the defendant possessed left hemispheric brain damage. This was caused by voluntary inhalation or sniffing of glue and transmission fluid. These doctors, however, testified that the defendant possessed no psychosis and knew right from wrong. There was no contention or urging that the defendant was criminally insane but merely that he was unable to conform to the requirements of law. This Court fails to recognize a voluntary induced condition caused by drug, glue or transmission sniffing as an excuse for the supreme punishment in this heinous crime.
This Court is convinced that the defendant knew the criminality of his acts and that his ability to perform was not impaired. The defendant knew exactly what he wanted to do: rob the victim and then kill her.
The aggravating circumstances in this case purely outweigh beyond and to the exclusion of every reasonable doubt in the Court’s mind the mitigating circumstances. This Court does impose the death penalty on the defendant, RONALD JACKSON.

Appellant contends that the trial judge erred in failing to find as a mitigating circumstance the fact that he acted under the dominating influence of Watts. We disagree. The trial judge specifically found that the “psychological determination subsequently made does not rebut the direct testimony of the other victim, who testified as to the role the defendant played in the commission of the crime. This court finds, as a matter of fact, the defendant was. the dominating factor and not the dominated.” It was the responsibility of the judge and the jury to weigh the evidence and resolve any conflicts. They did so. We will not now substitute our opinion for theirs.

Finally, appellant directs our attention to the fact that immediately after he was sentenced, his accomplice, Willie Watts, pleaded guilty to the first degree murder of Isaura Iturba and was sentenced to life imprisonment. We recognize and again reiterate our holding in Slater v. State, 316 So.2d 539 (Fla.1975) at 542, that “defendants should not be treated differently upon the same or similar facts.” In this case, however, the facts are not the same. The trial judge who sentenced both defendants specifically found that Jackson was “the dominating factor and not the dominated.” Under our present statutory scheme, the presence of this additional mitigating circumstance justifies the unequal sentences imposed on these defendants. Section 921.-141(6)(e).

We find that the aggravating factors outweigh those in mitigation and that the sentence of death is therefore appropriate.

Accordingly, the judgment and sentence are affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur in that portion of the majority opinion finding defendant guilty of murder in the first degree.

I respectfully dissent to that portion of the opinion denying appellant a presentence investigation. I construe Rule 3.710, Fla.R. Crim.P., to require a presentence investigation report to be made prior to the imposition of sentence whenever that person is under the age of eighteen years or when convicted of a first felony. I find nothing in the rule providing that it shall be inapplicable in capital cases. The argument used to deny presentence investigations to those persons convicted of capital crimes is that mitigating circumstances may be presented by the defendant to the jury and court whenever the sentencing hearings are held. Indigent persons convicted of crime may find it extremely difficult to develop proof of such mitigating circumstances without the services rendered by the state in preparing presentence investigations. It seems inherently unfair and borders upon denial of constitutional equal protection to grant presentence investigation hearings to persons convicted of less serious crimes and deny hearings to those possibly facing execution.

      . Other offenses charged were robbery and assault with intent to commit murder.

      . MR. McWILLIAMS: . . .
      Do you think that there could be extreme circumstances under which you could consider the death penalty as an appropriate sentence?
      MS. MEAGHER: I don’t really think so.
      MR. McWILLIAMS: What I’m trying to find out is if you are totally closed minded on that issue or whether you could consider it. There’s many, many different facts and circumstances in each particular case. So, this allows you leeway if you think there would be some circumstances so terrible that only under those circumstances you could consider the death penalty, then you’d have an open mind towards it at least.
      If you think you don’t care how bad it is, what the circumstances, there’s no possible way — all I’m trying to do is find out what is your category.
      MS. MEAGHER: I’m trying to think. I really think I don’t believe in the death penalty.
      MR. McWILLIAMS: Do you think there are no circumstances under which you could vote for the death penalty?
      MS. MEAGHER: I think it should be life imprisonment.
      MR. McWILLIAMS: Well than, are you totally closed to even the consideration of the death penalty?
      MS. MEAGHER: Yes.
      ******
      MR. VON ZAMFT: Now, what we need to know is if you would consider the death penalty at all. In other'words, are you so against the death penalty, are your feelings so strong you would not even consider it at all as an alternative sentence?
      MS. MEAGHER: I think so.
      MR. VON ZAMFT: You think so. You’re not sure.
      You have never been in the position, right, I know we’re asking people questions about what they would do in hypothetical situations that nobody has ever been in before. We have to do it that way, even though it’s in a situation, so you say you don’t know. I would consider it, but you’re not sure.
      MS. MEAGHER: I’m pretty sure.
      MR. VON ZAMFT: Okay.
      THE COURT: Ma’am, let the Court inquire.
      Is it your answer that you would not consider it or that you could consider it, or that you might consider it?
      MS. MEAGHER: I don’t think that I would.
      THE COURT: You think you would not?
      MS. MEAGHER: Yes.
      THE COURT: And I glean from that you could not.
      MS. MEAGHER: Right.

      . Rule 3.710. Presentence Report
      In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.


author: ADKINS, Justice.

text:
    Donald Lee RINGEL, Petitioner, v. STATE of Florida, Respondent.
    No. 52311.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Rehearing Denied Feb. 15, 1979.
    Richard E. Mandell and Michael Sigman, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen. and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for respondent.

      Richard L. Jorandby, Public Defender; and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for defendants Jay Dean Mitchell, Thomas Heyden Wright, Jr., Robert William Armentrout, William B. Beaver, Joseph J. Santarsiere, Michael L. Fulghum, Robert Allen Northwick, Gamal A. Elahrag and Michael L. Hopson, amicus curiae.
   ADKINS, Justice.

This cause is here on Petition for Writ of Certiorari reported by certificate of the District Court of Appeal, 4th District, that its decision reported in 352 So.2d 88 is one which involves a question of great public interest. See Article V, Section 3(b)(3), Florida Constitution.

The question certified as being of great public interest is as follows:

“Do the provisions of Section 39.02(5)(c) of the Florida Statutes relating to the treatment of juvenile offenders as adults apply to violations of the law the penalty for which includes but may also be less than life imprisonment?”

We answer this question in the affirmative and also hold that a juvenile indicted and convicted as an adult, Section 39.-02(5)(c), Florida Statutes (1975), is subject to the statutory minimum sentencing provision of Section 775.087, Florida Statutes (1975).

We approve and adopt the opinion of the District Court of Appeal.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and SUNDBERG, JJ., concur.


author: BOYD, Justice.

text:
    DADE TRUCK SALES, INC., Petitioner, v. William H. BEVIS et al., Respondents. DADE TRUCK SALES, INC. et al., Petitioners, v. Paula F. HAWKINS et al., Respondents.
    Nos. 52852, 53273.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Rehearing Denied Feb. 15, 1979.

      Bernard C. Pestcoe of Pestcoe, Minsker & Freedman, Miami, for petitioners.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, for respondents.
    M. Craig Massey and Donald G. Jacobsen of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for Redwing Carriers, Inc., McKenzie Tank Lines, Inc. and Commercial Carrier Corp., intervening respondents.
   BOYD, Justice.

Petitioners Dade Truck Sales, Inc., and Material Transport Co., Inc. have failed to demonstrate departures from the essential requirements of law in their consolidated petitions for review of Public Service Commission Orders Nos. 13803 and 13877. Accordingly, the Orders are approved. There is one point raised by petitioners, however, that needs a few words of explanation. It concerns the tolling of the time that establishes the dormancy of a certificate of public convenience and necessity. . "

In May of 1976 Material Transport Co., the holder, of Certificate of Public Convenience and Necessity No. 871, ceased operation of its business authorized by the Certificate. Five months later Material Transport and Dade Truck Sales filed an application with the Public Service Commission to have it transfer to Dade Truck Sales the authority conferred on Material Transport by Certificate 871. By the time a hearing had been conducted before the Commission fourteen months had passed without activity authorized by the Certificate.

Before the Commission may approve the transfer of a Certificate of Public Convenience and necessity it must find that the Certificate has not been dormant for more than six months. In this case the Commission was unable to make that threshold finding. It found that Certificate 871 had been dormant for more than six months and so it disapproved the transfer. Moreover, the Commission observed that during the six months of dormancy Material Transport had not petitioned for or obtained from the Commission approval to suspend its business operation. The Commission cancelled the Certificate as required by law.

Petitioners contend the timely filing of the transfer application tolled, under case law, the running of the time period that establishes dormancy. The case they rely on is National Trucking Co. v. Carter, 147 So.2d 129 (Fla.1963).

In National Trucking Co. the possessor of a certificate mortgaged it. The mortgage was foreclosed. The holder ceased operation under it just before the judicial sale in October. After the sale the Circuit Court Clerk issued a document of title to the buyer. Three months later the buyer sold the certificate to a motor carrier and the two applied for approval of both that transfer and the transfer by way of the judicial sale. A hearing was held after the six-month dormancy period had expired but the transfers were approved. Those who protested the transfer before the Commission brought the case to this Court claiming the certificate was dormant. We held that “[Wjhen one purchases a certificate of convenience and necessity at a judicial sale and under the law has no authority to operate until the judicial transfer . is approved by the Commission . the running of the prescribed dormancy period is tolled by the filing . . . of an application [for approval of the transfer].” 147 So.2d at 131.

The Commission argues that the basis of the Court’s holding was to avoid a clash between the judiciary and a regulatory state agency. Our reading of the case bears this out. The case is unique and we limit it to its facts.

Moreover, the Commission points out that in this case Material Transport Co., as the Certificate’s holder under Commission authority, had full power to operate under the Certificate, unlike the buyer in National Trucking Co., and was able to obtain from the Commission formal approval for suspension of operation which would have tolled the time. Indeed, the law provides for Commission approval of suspension and it is only without such approval that the period for dormancy may be completed. The Commission is without authority to approve the transfer of a dormant Certificate. And on this record there is no legal error in its finding of dormancy.

The Orders of the Public Service Commission are affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG and ALDERMAN, JJ., concur.

      . “[I]f the commission finds and determines that such . transfer, is not contrary to the public interest, and that the certificate has not been dormant for more than six months, it shall enter an appropriate order in the premises.” § 323.041(3), Fla.Stat.

      . “Whenever it shall appear that any motor carrier holding a certificate issued under any provision of this part has failed to operate without prior formal approval of suspension by order of the commission, for a period of six months, such certificate ... is hereby declared to be dormant and abandoned, and the commission '. . shall enter an order confirming the cancellation and revocation of such certificate.” § 323.10(2), Fla.Stat. (e. s.).

      . “As pointed out by the Commission to hold otherwise would be to allow the Commission to circumvent the power and decrees of the courts in such cases. If at the time of its purchase at a judicial sale the certificate is not dormant and the purchaser makes application to the Commission for approval of the judicial transfer before the certificate has been dormant for the prescribed period, the Commission, by failure to act on the application, ought not be permitted to render worthless, in effect, the title conveyed in the judicial proceedings.” National Trucking Co. v. Carter, 147 So.2d 129, at 131 (Fla.1963).

      . § 323.10(2), Fla.Stat., f. n. 2, above.

      . § 323.041(3), Fla.Stat., f. n. 1, above.


author: HATCHETT, Justice. ALDERMAN, Justice,

text:
    A. B. A. INDUSTRIES, INC., etc., Appellant, v. CITY OF PINELLAS PARK, etc., Appellee.
    No. 53822.
    Supreme Court of Florida.
    Jan. 11, 1979.

      Herman W. Goldner of Goldner, Reams, Marger, Davis, Piper & Kiernan, St. Peters-burg, for appellant.
    Edward D. Foreman, St. Petersburg, for appellee.
   HATCHETT, Justice.

The question presented is whether Section 171.0413(5), Florida Statutes (1977), which provides a procedure whereby municipalities annex contiguous unincorporated territory, is constitutional. We affirm the trial judge by declaring that section of the statute unconstitutional.

The City of Pinellas Park sought to annex land owned by the appellant, A. B. A. Industries, Inc. In reply, A. B. A. Industries, Inc. filed suit for injunction to halt the scheduled annexation referendum alleging that the referendum failed to comply with the requirements of the annexation statute. The relevant section of the statute provides:

If the area proposed to be annexed is predominantly owned by individuals, corporations, or legal entities who are not registered electors of the area proposed to be annexed, such area shall not be annexed unless a majority of such individuals, corporations, or legal entities consent to such annexation. [Emphasis added.]

A.B.A. Industries, a corporation, was not a registered voter although it owned land in the target area. In support of its complaint for injunction, it showed that more than fifty percent of the land in the target area was owned by individuals, corporations, or legal entities who were “not registered electors of the area proposed to be annexed,” and that the City of Pinellas Park had not attempted to obtain the consent of a majority of such owners. The trial judge held Section 171.0413(5), Florida Statutes (1977), (1) unconstitutionally vague and ambiguous, and (2) violative of the “one man, one vote” principle of the Fourteenth Amendment to the Constitution of the United States, and Article I, Section 2 of the Florida Constitution (1968).

As to the vagueness point, the constitutionality of this statute depends upon the meaning of the words “predominantly owned” and the time when consent of land owners must be obtained. Appellant contends that the words “predominantly owned” means greater than 50 percent of the land area proposed to be annexed. It maintains that this construction uses the common meaning of the word “predominant” and is consistent with legislative intent. Appellant also argues that the consent required by the statute is a condition precedent to the holding of the referendum. If the referendum is held prior to the obtaining of consent and consent is not obtained, says appellant, the cost of holding the election is wasted.

The appellee, City of Pinellas Park, urges that we uphold the trial court by finding that the statute is impermissibly vague. Appellee says it is not clear whether the phrase “predominantly owned” refers to the number of individuals, corporations, or legal entities not registered to vote, or to the amount of land which is owned by unregistered individuals, corporations, or legal entities. The appellee also maintains that it is feasible to assume that the consent required by the statute must be obtained within a reasonable time after the referendum. By obtaining the consent after the referendum, says appellee, municipalities will avoid wasting money to obtain consent until the referendum is successful.

When construing statutes, the courts must assume that the Legislature intended to enact an effective law. Statutes are presumptively valid and constitutional, and will be given effect if possible. All doubts will be resolved in favor of constitutionality. Bonvento v. Bd. of Public Instruction of Palm Beach County, 194 So.2d 605 (Fla.1967). Acts of the Legislature are presumed valid and an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. Knight and Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966).

The statute is constitutionally defective. It is vague and ambiguous. We agree with the appellee, City of Pinellas Park, that it is impossible to determine from the statute whether “predominantly owned” refers to the number of individuals, corporations, or legal entities not registered to vote (number of owners), or to the amount of land area to be annexed which is owned by individuals, corporations, or legal entities not registered to vote. Must the number of unregistered land owners be “predominant” when compared to the number of registered voters in the area? Must the proportion of the land mass to be annexed which is owned by the unregistered voters be “predominant” when compared to the amount of the same land mass owned by registered voters? If the statute refers to the amount of land area owned by unregistered property owners, does the statute require consent from the majority of the unregistered owners owning land in the area to be annexed who own more than 50 percent of that area, or does it require some greater percentage? Must consent be obtained by the annexing authority before the referendum, after the referendum, or at any time, without limit? We are unable to answer these questions by reading the statute. It cannot be left to the judiciary to determine when an area is “predominantly owned” according to its definitions and notions; the guidelines and definitions must be set out by the Legislature.

We hold that Section 171.0413(5), Florida Statutes (1977), is unconstitutionally vague and ambiguous. In light of this holding, we need not determine whether the statute is violative of the “one man, one vote” principle embodied in the equal protection clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Florida Constitution.

Accordingly, the order of the trial judge, as limited, is affirmed.

It is so ordered.

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

ALDERMAN, J., concurs specially with an opinion, with which ADKINS, J., concurs.

ALDERMAN, Justice,

concurring specially.

I agree that Section 171.0413(5) is vague and ambiguous and therefore constitutionally defective. It is clear, however, that the legislature intended to give landowners who were not registered electors of the area proposed to be annexed a voice in the annexation of their property. The statute is defective because it does not delineate with the required degree of specificity those conditions under which the consent of the unregistered landowners must be obtained. This is a defect that can be remedied by the legislature. Our decision today does not hold that owners of land within an area proposed to be annexed may not be given a voice in the annexation of their property, even if they are not registered electors of the area to be annexed. A properly drafted statute may be valid. We simply hold that Section 171.0413(5) is not.

ADKINS, J., concurs.

      . Our jurisdiction is provided by Art. V, Sec. 3(b)(1), Fla.Const.

      . Although the judge’s order seems to declare the entire statute unconstitutional, the parties agree, and we find from the record, that the only section of the statute called to the trial judge’s attention and argued by the parties was subsection (5). Under all the circumstances here present, we find no legal significance in the fact that two judges participated in the disposition of this case.