text:
    Vincent HUDSON and Randolph Hudson, Jr. v. STATE of Mississippi.
    No. 50379.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Eaves & Eaves, G. Jyles Eaves, Louisville, for appellants.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

      Before SMITH, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court:

Vincent and Randolph Hudson were convicted of felony possession of marijuana by a jury in the Circuit Court of Winston County. Each was sentenced to two years in the state penitentiary with one year suspended based on future good behavior. We reverse. The Hudsons made several assignments of error. However, due to the Court’s disposition of the case, only one need be addressed.

The issue presented is whether on the facts of this case there was sufficient evidence to establish that Vincent and Randolph Hudson exercised such dominion and control over the marijuana as to constitute constructive possession of the contraband.

The state in its case in chief put on only two witnesses who testified to substantive evidence going to the alleged crime. The sheriff of Winston County and his deputy testified that on the night of January 30, 1976, they went to Mosely’s Cafe with a search warrant on a 1969 Lincoln Continental with an out-of-state tag. They found the car parked outside the cafe with Vincent Hudson asleep on the backseat. After a search of the interior which produced no contraband, they searched under the hood of the car and found 52.5 grams of marijuana concealed in a small hole-like opening near the radiator. Both the sheriff and his deputy testified that when they asked who was driving the car, Vincent replied, “Randolph Hudson, Jr.” The sheriff also testified that Vincent mentioned a third party, however, the sheriff could not remember the name. Randolph who was inside the cafe was then arrested along with Vincent. At trial, the state put on no proof as to the ownership of the vehicle.

In the defense portion of the trial, Vincent and Randolph denied ownership of the car as well as any knowledge of the marijuana secreted under the hood. They also testified the car belonged to Bobby Blue. A defense witness testified she was the current owner of the car and had purchased it from a Bobby Blue after the alleged crime. Other witnesses who were present at the cafe that night testified Vincent and Randolph arrived at the cafe with Bobby Blue. The defendants also testified that Blue was from Des Moines, Iowa, and that they had known him for approximately three weeks. No one knew of Blue’s whereabouts at the time of trial and Blue was not arrested the night of the alleged crime, although they testified he was present at the cafe when the officers arrested the Hudsons.

In Sisk v. State, 290 So.2d 608 (Miss.1974), we pointed out that the burden is on the state to show by competent evidence that the marijuana was subject to the dominion or control of appellant. (290 So.2d at 610). There, as here, part of the evidence relied on was hearsay evidence and the case was reversed.

In Curry v. State, 249 So.2d 414 (Miss.1971), we stated:

What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subjected to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. (249 So.2d at 416).

The only evidence of constructive possession was: (1) the admissions of Randolph and Vincent that they had known Blue for about three weeks, had driven in the car previously with him, and on one occasion Vincent had driven in the car alone; (2) that when the marijuana was found, Vincent was in the backseat asleep and Randolph was in a cafe in front of which the car was parked; and (3) that Vincent told the officers Randolph had driven the car to the cafe with" him and Blue as passengers, although Vincent denied this at trial and contended that he did not know who drove the car because he was asleep.

There is no evidence in this case that the defendants exercised dominion and control over the marijuana. First, even the proximity is questionable since the marijuana was not inside the car, but secreted under the hood of the car. Second, even if such were sufficient to satisfy the proximity requirement, nevertheless, there is a total absence of “other incriminating circumstance” as required by the Curry decision.

We also note that the test of Curry is dominion and control over the marijuana not dominion and control over the automobile. The proof arguably might show temporary dominion and control over the automobile, however absent other circumstances, this alone will not suffice to prove dominion and control over the marijuana in a situation such as here presented.

This is not a case where there is a presumption of constructive possession based on ownership. See, e. g., Bolin v. State, 229 Miss. 798, 91 So.2d 847 (1957); and see discussion in Hamburg v. State, 248 So.2d 430, 432 (Miss.1971). Nor is it a case such as Curry v. State, 249 So.2d 414 (Miss.1971), where the marijuana was found inside Curry’s car in which he was a passenger and within his reach and within his sight.

In this ease, the Hudsons were not owners of the vehicle; the marijuana was secreted under the hood, outside the passenger compartment; proof of dominion and control over the automobile was scant; and there was no proof of other incriminating circumstances. Under these circumstances, the evidence was insufficient to sustain a finding of constructive possession.

REVERSED AND APPELLANTS DISCHARGED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

author: ROBERTSON, Presiding Justice,

license: Public Domain

text:
    Ronald JORDAN v. STATE of Mississippi.
    No. 50709.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Thomas D. Lee, Forest, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Ronald Jordan was indicted, tried and convicted in the Circuit Court of Scott County, for burglary of Gibson’s Discount Store in Forest, Mississippi. The sentence was:

“[T]o serve a term of seven years in the Mississippi State Penitentiary, without suspension or parole, he having been sentenced under the habitual offender statute, in such case made and provided.”

Jordan was convicted on the uncorroborated testimony of an alleged accomplice, James Parkman. Parkman was a convicted felon, having served time in the State Penitentiary at Parchman for burglary, auto theft and grand larceny. Jordan also had served time in the Penitentiary for burglary.

Parkman testified that on September 23, 1977, he and Jordan traveled in Jordan’s car from Jackson to Forest in order to get some drugs. He stated that they rode around Forest, trying to find somebody who could get a doctor’s prescription for drugs. Not being able to find anybody, Jordan went to a Dr. L. W. Willey and secured a prescription for Quaalude, a strong tranquilizer. Parkman remained in the car, while Jordan had this prescription filled at Gibson’s Discount Pharmacy. Parkman said that the arrangement was that Jordan would look around and see if there were any burglar alarms or hidden cameras in the pharmacy.

Parkman further testified that they got a motel room; that Jordan left and came back a short time later with a screwdriver and pillowcase which he gave to Parkman; that their agreement was that Parkman would rob the Pharmacy and Jordan would pick him up about two hours later below the railroad tracks.

Parkman said that during the afternoon and evening they remained at the motel room taking Quaalude (7-14’s) and drinking beer. Parkman testified that while Jordan was out he took a shower and went to bed and when Jordan returned he had to wake him [Parkman] to let him back in the motel room.

Parkman, after admitting that he was high on drugs, said that Jordan drove him to Gibson’s, that he, Parkman, climbed to the roof and pried back a section of the tin roof and climbed down into the building. When he reached the main'floor, he was immediately arrested by police.

On the other hand, defendant Jordan testified that he went to the carnival in Forest and in leaving the carnival ran over the curb and knocked a hole in the oil pan of his car. He went to the motel room and it was locked. He finally had to get the motel owner to unlock his motel room. Finding the bottle of Quaalude capsules and the motel key gone, he called his wife to ask if she had seen or heard from Parkman.

He then went to the A & P store and bought six quarts of Quaker State oil, stuffed a rag in the hole in the oil pan, called Hardy McCormick about getting into his shop, then went to David Creel’s home and, not finding him there, was backing out when he was stopped by Officer Noblin.

Forest policeman Clay Noblin testified that, between 10:30 and 11:00 P.M., he received a call about a break-in at the David Creel residence about a block east of Gibson’s Discount Store. Noblin pulled into the Creel driveway just as Jordan pulled out. He stopped Jordan and asked him to come to the police station. Jordan told Noblin that he had a hole in his oil pan, and that he was looking for Creel to do some welding on his car. Noblin said that Jordan put a quart of oil in his car before leaving the Creel residence. Noblin then followed Jordan to the police station. Noblin said that Jordan told him the next day that his motor burned up after he had parked at the police station.

Jordan’s testimony was also corroborated by Hardy McCormick, who owned an automobile repair shop in Forest. McCormick testified that Jordan called him around 9:30 P.M.; he wanted to get into his repair shop to repair an oil pan. McCormick referred him to David Creel, who worked for him.

Ms. Sylvia Gatewood testified that Jordan came to the A & P store late that night and bought six quarts of Quaker State oil.

Ms. Salter, the motel owner, testified that around 10:00 P.M. September 23, 1977, she had to open the motel room for Jordan. Appellant’s wife, Mrs. Elizabeth Jordan, testified that around 10:00 P.M. her husband called her inquiring about Parkman’s whereabouts.

Appellant Jordan readily admitted that he had taken Parkman with him to Forest, that he had gotten a prescription from Dr. L. W. Willey, that he had had it filled at Gibson’s Discount Pharmacy, that he had checked into the motel and had attended the carnival, but he denied having any part in planning or carrying out the burglary.

Although the only testimony connecting Jordan with the burglary was Parkman’s uncorroborated testimony, the jury found Jordan guilty as charged. After the trial was concluded late in the day, the court recessed until the next morning, October 12th, for sentencing.

The next morning Jordan filed a motion for a new trial on newly discovered evidence. At the hearing on the motion, Jordan testified that about 8:00 A.M., October 12th, Parkman called down to him from the cell above, telling him that he had lied but that he had to testify against him because he was going to get 17 years in the penitentiary without probation or parole.

Jerry Lanthrip, who was in the same cell with Jordan, testified that he heard Parkman call down and make that statement. James A. Warnsley testified that he heard Parkman make the statement that Jordan was not with him when he broke in, but that he had to turn state’s evidence because they were going to give him 17 years with no parole, and that if he turned state’s evidence he would get 7 years and “do his time in the county jail.”

Parkman himself testified on the motion for a new trial. When asked the question: “Did you feel compelled to testify against Ronald Jordan because you were afraid you would receive 17 years?”, he answered: “Yes, sir, I done that so I wouldn’t get 17 years.”

On cross-examination, Parkman further testified:

“Q. . . . When did you change your story, Mr. Parkman, about taking the rap yourself and implicating someone else?
A. When someone told me I was getting 17 years.
Q. And that influenced your testimony, influenced your story at that time?
A. Yes, sir, it did.
Q. You decided at that time to implicate Ronald Jordan in this, is that correct?
A. Yes, sir.
Q. Prior to that time you had no intentions of implicating Ronald Jordan, is that correct?
A. Right.
Q. Because you had told them you were the only one involved in that crime, is that correct?
A. Yes, sir.”
Richard J. Spears was in the cell with Parkman. He testified:
“A. ... I know I heard him say if he didn’t testify, that they were going to give him 17 years with no parole.
Q. And who did he say that to?
A. To Ronald.
Q. Did Parkman ever discuss with you this thing about if he didn’t testify, he would get 17 years with no parole?
A. Yes.
Q. He discussed that with you?
A. He did.
Q. Did he discuss it with anyone else?
A. All of us there.
Q. And did he say that was the reason he testified, that he was afraid he would get 17 years if he did not?
A. Right.
Q. And as a result of his testimony, he got seven years, is that correct?
A. Yes.”

The trial court should have granted a new trial on this newly discovered evidence.

In Cole v. State, 217 Miss. 779, 65 So.2d 262 (1953), we said:

“This Court has adopted a rule that a defendant can be convicted on the uncorroborated testimony of an accomplice, but it has carefully restricted the scope of that doctrine by holding that such uncorroborated testimony should be viewed with great caution and suspicion, and that it must be reasonable and not improbable or self-contradictory, or substantially impeached.” 217 Miss. at 785, 65 So.2d at 264. (Emphasis added).

In considering the uncorroborated testimony of Parkman, the jury was entitled to have all of this newly discovered evidence before it. It probably would have influenced the jury in the weight they gave to the uncorroborated testimony of Parkman.

Another assignment of error was that:

The Trial Court erred in pronouncing sentence upon the Appellant under the Habitual Criminal Act, when Appellant was not indicted under said Act.

In Bell v. State, 355 So.2d 1106 (Miss.1978), this Court quoted with approval from Lay v. State, 310 So.2d 908 (Miss.1975):

“Under our practice, if enhanced punishment is sought, the indictment or affidavit must include both the principal charge and a charge of previous convictions and both charges proved before punishment may be enhanced.” 355 So.2d at 1108.

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

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, COFER and BOWLING, JJ., concur.

LEE, J., took no part.


text:
    GLASS CONTAINERS CORPORATION v. Willie Paul BEESON.
    No. 50629.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Daniel, Coker, Horton, Bell & Dukes, James F. Steel, Jackson, for appellant.
    Dixon L. Pyles, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, LEE and COFER, JJ., concur.


text:
    GREENVILLE LUMBER COMPANY, INC., D. J. Sherman, President v. BANKERS TRUST SAVINGS & LOAN ASSOCIATION.
    No. 50631.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Felts, Russell, Adams & Lueckenbach, Nathan P. Adams, Jr., Greenville, for appellant.
    Stuart Robinson, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

AFFIRMED.


text:
    Joe Ronnie ABRAM v. STATE of Mississippi.
    No. 50790.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Rex K. Jones, Hattiesburg, for appellant.
    A. P. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, WALKER and COFER, JJ.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and BROOM, LEE and BOWLING, JJ., concur.


text:
    Lee Roy COOPER, Jr. v. Wanda Louise COOPER.
    No. 50346.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Joe Ray Langston, Thomas H. Comer, Jr., Duncan L. Lott, Booneville, for appellant.
    Wanda Louise Cooper, pro se.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Alcorn County; James E. Bost and Fred P. Wright, Chancellors.

Affirmed in part, reversed in part and rendered.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Mrs. Alexandra (Jahn) BOBEK v. Walter H. JAHN.
    No. 50619.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Eaton, Cottrell, Galloway & Lang, David Cottrell, Jr., Gulfport, for appellant.
    Richard B. Brown, Jr., Gulfport, for ap-pellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Affirmed in part, reversed in part and rendered.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    The TRAVELERS INDEMNITY COMPANY v. James T. LOGAN, Jr., et ux.
    No. 50511.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Watkins & Eager, Velia Ann Mayer, P. N. Harkins, III, Jackson, for appellant.
    Smith & McLemore, James G. McLemore, Jr., James E. Smith, James E. Smith, Jr., Carthage, for appellees.
   Appeal from Circuit Court, Leake County; O. H. Barnett and Marcus D. Gordon, Judges.

Before SMITH, P. J., and BROOM and LEE, JJ.

Affirmed on condition of remittitur, otherwise reversed and remanded.

PATTERSON, C. J., ROBERTSON, p’ J., and SUGG, WALKER, BOWLING and COFER, JJ., concur.


text:
    Cora Evelyn SPEARS v. Dalton E. SPEARS.
    No. 50615.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    William P. Dodson, Oxford, for appellant.
    Murray L. Williams, Water Valley, for appellee.
   Appeal from Chancery Court, Yalobusha County; Leon E. Hannaford, Chancellor.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED IN PART, REVERSED IN PART AND DECREE HERE REINSTATING PROVISION IN ORIGINAL DECREE AS TO ALIMONY.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM and LEE, JJ., concur.

COFER, J., took no part.


text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. Robert S. MALONEY.
    No. 50651.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Leopoldo T. Aragon, Jackson,, for appellant.
    David W. Dreher, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    ODDEE SMITH & SONS, INC. v. Eugene R. STOREY.
    No. 50684.
    Supreme Court of Mississippi.
    Sept. 20, 1978.
    Richard E. Stratton, III, Brookhaven, for appellant.
    K. Maxwell Graves, Jr., Meadville, for appellee.
   Appeal from Circuit Court, Franklin County; Lenox L. Forman, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    Teresa P. Pence ADAMS v. TOWN OF OXFORD.
    7 Div. 590.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    Gordon F. Bailey, Jr., Anniston, for appellant.
    John Rufus Phillips, Anniston, for appel-lee.
   Appeal from Circuit Court, Calhoun County; Robert M. Parker, Judge.

Convictions for destroying private property and for assault and battery AFFIRMED without opinion.

All the judges concur.

Certiorari denied, Ala., 362 So.2d 654.


author: PER CURIAM.

text:
    In re Teresa P. Pence ADAMS v. STATE of Alabama. Ex parte Teresa P. Pence Adams.
    77-711.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Gordon F. Bailey, Jr., Anniston, for petitioner.
   PER CURIAM.

The Petition for Writ of Certiorari requests this Court to review a “No Opinion” affirmance by the Court of Criminal Appeals, Ala.App., 362 So.2d 654, with the judgment of conviction and sentence ordered by the trial court. Petitioner does not invoke Rule 39(k), ARAP. Thus, the writ is denied.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


text:
    In re FLORIDA RULES OF CRIMINAL PROCEDURE, RULE 3.710.
    No. 49355-D.
    Supreme Court of Florida.
    Nov. 30, 1977.
   PER CURIAM.

Pursuant to Article V, Section 2(a) of the Florida Constitution, the Court on its own motion initiates this proceeding to consider revision of Rule 3.710 of the Florida Rules of Criminal Procedure, which would have the effect of' eliminating all presentence investigations in cases in which the death penalty may be imposed. It is proposed that Rule 3.710 be amended by adding at the end a new sentence to read:

“This rule shall not apply in any case where a defendant has been found guilty of a capital crime.”

Section 921.141, Florida Statutes (1975), enumerates statutory criteria by which trial judges and advisory juries shall determine whether a sentence of death, or life imprisonment, is appropriate for persons convicted of a capital crime. The United States Supreme Court has upheld this statute on the basis that the discretion inherent in the sentencing process is controlled by these statutory criteria. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

This Court now invites comment by all interested persons as to whether presen-tence investigation reports should be made available to the sentencing judge in any capital case, in light of the statutory considerations contained in Section 921.141. Not later than January 15, 1978, any interested person may comment on the proposed Rule and request to appear at an oral argument on the proposed Rule to be held on February 22, 1978.

It is so ordered.

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


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

text:
    In re FLORIDA RULES OF CRIMINAL PROCEDURE, RULE 3.710.
    No. 49355-D.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Ronald K. Cacciatore, Chairman, Executive Counsel, Criminal Law Section of The Florida Bar, Tampa, and John A. Weiss of The Florida Bar, Tallahassee, Bennett H. Brummer, Public Defender, and Paul Morris and Karen M. Gottlieb, Asst. Public Defenders, Miami, Bruce J. Winick, Gen. Counsel, Coral Gables, Terry L. DeMeo, Staff Counsel, South Miami, and Raymond W. Russell, Fort Lauderdale, for American Civil Liberties Union Foundation of Florida, Inc.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard and Jerry L. Schwarz, Asst. Public Defenders, West Palm Beach, Michael J. Minerva, Public Defender, Tallahassee, and Andrew A. Graham, Rockledge, interested persons.
   PER CURIAM.

On November 30, 1977, the Court initiated this rulemaking proceeding to consider whether presentence investigation reports should be eliminated from the sentencing process in all capital cases, in light of the statutory scheme for sentencing set out in Section 921.141, Florida Statutes (1975). The Court invited comment by all interested parties on a proposed change to Florida Rule of Criminal Procedure 3.710 which would achieve that objective.

After receiving briefs from many interested parties, hearing oral argument, and considering both the policy issues and the practical implications of a possible rule change, we have concluded that presentence investigation reports should continue to be available as a discretionary sentencing tool for trial judges in capital cases, and that Florida Rule of Criminal Procedure 3.710 should remain unchanged. In so concluding, we have rejected alternatives to the present rule which were suggested by various counsel, such as mandating presentenee investigation reports in all capital cases, requiring their presentation to advisory sentencing juries as well as trial judges, and requiring them only at a defendant’s request.

This rulemaking proceeding is hereby terminated.

It is so ordered.

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

BOYD, J., dissents with an opinion.

HATCHETT, J., dissents with an opinion.

BOYD, Justice,

dissenting.

Hargrave v. State, Supreme Court Case No. 48,135, Opinion filed June 30, 1978 and the committee note notwithstanding, I believe Florida Rule of Criminal Procedure 3.710 mandates presentence investigations and recommendations for the sentencing judge’s consideration in capital cases where the defendant is under 18 years of age or the conviction for the capital offense is the defendant’s first felony conviction. Given my construction of the rule, that it requires reports in some capital cases, I would amend the rule to extend the requirement to all capital cases. As Justice Hatchett has written in this proceeding, if the PSI reports have a potentially beneficial impact on the capital sentencing process every defendant facing a death sentence should be afforded the benefit. Post, at 656 (Hatchett, J., dissenting).

During oral argument a number of the parties stressed the potential benefit to the defendant conferred by the presentence investigation report. My review of the reports that have come before this Court in capital cases has led me to the conclusion that, at times, they offer the defendant some benefit. It must be taken as true that at least in some cases the report will show a defendant in a better light than the facts of the capital crime, and therefore is a mitigating aid to the defendant. In view of this fact, for the sentencing judges to provide some capital defendants resources to turn up mitigating factors, but deny those resources to others, is unquestionably a denial of equal protection. Moreover, in those cases in which the sentencing judge denies the defendant’s request for consideration of a report, I think a sentence of death may not be imposed without violating the constitutional ban on cruel and unusual punishment. In Lockett v. Ohio,-U.S.-, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court announced,

[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case [prisoner or escapee under life sentence commits murder], not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at-, 98 S.Ct. at 2965.

This announcement of the Court means to me that, as long as the court retains presen-tence investigation reports, with their potential mitigating effect, “as a discretionary tool for sentencing judges in capital cases,” it must require the sentencing judge to consider a report whenever the defendant requests consideration.

I would require consideration of the report in every capital case. And I believe that constitutionally a report must be considered by the sentencing judge at the request of any defendant convicted of a capital offense. I dissent.

HATCHETT, Justice,

dissenting.

I agreed to hear argument on suggested changes to the rule covering the use of presentence investigation reports in capital cases out of a concern that PSI’s were being used to override jury recommendations and render meaningless our decision in Tedder v. State, 322 So.2d 908 (Fla.1977).

In light of the majority’s position expressed here, I abandon the hope that the degree of purity that I desire in the sentencing process in capital cases, and the purity which I believe is required by the United States and Florida Constitutions, will be achieved at this time. I would at least require a presentence investigation report in all capital cases. What is gained by having PSI reports in some capital cases but not in others, at the sole discretion of the trial judge? If these reports have a potentially beneficial impact on the capital sentencing process, our constitutional guarantees of equal protection under the laws would seem to mandate the extension of these benefits to every individual facing a sentence of death. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In addition, the rule as presently adopted contains no standards to guide trial judges in their determinations as to whether such reports are necessary.

Therefore, I must respectfully dissent.

      . See, however, Hargrave v. State, Case No. 48,135 (Fla. opin. filed June 30, 1978), holding the second sentence of Rule 3.710, which mandates presentence investigation reports, inapplicable in capital cases.


text:
    Elwood Clark BARCLAY and Jacob John Dougan, Jr., Appellants, v. STATE of Florida, Appellee.
    No. 47260.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Certiorari Denied Oct. 10, 1978.
    See 99 S.Ct. 249.
    Ernest D. Jackson, Sr., Releford McGriff, Jacksonville, for appellants.
    Wallace E. Allbritton, Tallahassee, for appellee.
   ORDER FOR GARDNER RELIEF

PER CURIAM.

The judge who sentenced Elwood Barclay and Jacob Dougan to death for the murder of Anthony Orlando has responded to the order providing for a uniform means of determining Gardner relief. In his response he states that the sentences of death were not imposed on appellants based on any information unknown to them and that, prior to sentencing, the defense was provided copies of the presentence investigation reports prepared in the case by the Probation and Parole Commission. It does not appear clearly from the response or the record, however, precisely when the reports were released to the defense and whether it had a meaningful opportunity to be heard on any of the matter in either report.

To assure that the sentencing procedure in this case satisfies the constitutional command of the Due Process Clause, the death sentences are vacated and the cause is remanded to the trial court. The court is directed to provide a hearing at which the defense has the opportunity to rebut any of the information contained in the presen-tence investigation reports, whether in the confidential portion of the report or any other part. This direction, of course, requires that the defense have access to the reports-in-full with sufficient time before the hearing to prepare rebuttal. Following the hearing the court is to impose sentences. If death is imposed as to .either appellant there will be available in this Court review, limited to matters related to compliance with this order.

Accordingly, the death sentences are vacated and the case is remanded to the Circuit Court, in and for Duval County, with directions to conduct the proceeding outlined in this order.

It is so ordered.

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

ADKINS, J., dissents.

      . The order was issued May 6, 1977.

      . See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

      . 14th Amendment, U.S. Constitution. See Gardner, above.


author: PER CURIAM. ENGLAND, Chief Justice,

text:
    David Leroy WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 50832, 50833 and 50850.
    Supreme Court of Florida.
    Sept. 7, 1978.

      William R. Tunkey of Weiner, Robbins, Sheres & Tunkey, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

This cause consists of consolidated appeals from sentences of death entered upon pleas of guilty to murder in the first degree in three cases, in the Circuit Court of the Eleventh Judicial Circuit for Dade County. Our jurisdiction to review this case is based on Article V, Section 3(b)(1), Florida Constitution, and Section 921.141(4), Florida Statutes (1975).

These appeals arise out of a series of murders committed by appellant during a twelve-day period. On September 20, 1976, appellant and an accomplice formulated a plan to rob and kill Daniel Pridgen. The purported motive for the killing was the fact that Pridgen, a minister, was a homosexual and in appellant’s opinion a man of the cloth violated religious and moral precepts by engaging in homosexual activities. According to the plan, appellant’s accomplice was to induce Pridgen to engage in homosexual activities. When Pridgen was undressed and in bed, the accomplice was to cough two times as a sign for appellant to enter the home and kill Pridgen. Appellant entered the Pridgen home when the signal was given and, while the accomplice covered Pridgen’s face with a pillow and held him helpless, appellant stabbed the victim to death. Appellant and his accomplice stole certain items from .Pridgen’s home, attempted to wipe their fingerprints from surfaces about the house, and fled.

During the evening of September 23, 1976, appellant proceeded to the residence of Katrina Birk pursuant to a plan for robbery. Mr. Birk allegedly had previously acted as a “fence” for property stolen by appellant. Appellant carried a rope, a knife and a gun with him to the residence. By appellant’s admission, the gun was loaded. Having arrived in the area of the home, appellant concealed himself outside of the residence and kept the home under surveillance for some period of time. Appellant waited until he was relatively certain that the occupants of the home, Mrs. Birk and her three sisters-in-law, were together in one room. Once this occurred, appellant cut the screen on the Birks’ front door and entered the residence. Appellant disguised himself by tying a rag around a portion of his face. Appellant instructed the four occupants to lie on the floor. Two of the women complied with appellant’s demand, and appellant permitted one woman to seat herself in a chair. Mrs. Birk went into the kitchen and obtained a box containing money, which she offered to appellant. At this point, appellant cut the telephone cord and proceeded to tie up the four women. As appellant was completing this task, he observed Mrs. Birk inching her way into the kitchen. An argument ensued between the two, and appellant shot Mrs. Birk in the head and repeatedly stabbed her with his knife, causing her death. Appellant thereafter approached his bound victims, shooting each in the head and inflicting several stab wounds. Appellant then fled to his home, carrying the money box. After arriving at his home, appellant counted the stolen money and disposed of the knife and the money container. Each of the sisters-in-law survived the assault. However, one woman became blind in one eye, one suffers breathing difficulties due to the knife wounds to her lungs, and one remains in a comatose, vegetable state.

On approximately September 27, 1976, appellant contacted his third victim, Frank Meli, by telephone in response to the latter’s newspaper advertisement for the sale of an automobile. After briefly conferring with Meli, appellant terminated the telephone conversation. The following morning, appellant again called the Meli residence and arranged to meet Meli at a particular intersection for a test drive of the vehicle. Following the test drive, appellant persuaded Meli to go to appellant’s home to obtain the money to conclude the sale. Upon Meli’s entry into appellant’s home, appellant brandished a knife and forcibly bound his victim to a bed. Two of appellant’s companions assisted appellant in guarding Meli to prevent an escape. Appellant succeeded in selling Meli’s automobile and then forced Meli to telephone his family and request a ransom.

On the morning of September 29, 1976, appellant paid his companions part of the proceeds from the sale of the automobile for their assistance in holding Meli captive. Appellant’s friends left the residence and appellant entered the bedroom where Meli had been tied spread-eagled to a bed. The testimony at this point is conflicting. Appellant stated in his subsequent written confession to police that Meli had untied one of the four straps securing him to a bed and a struggle ensued. It is uncontested, however, that appellant stabbed Meli eleven times. During the stabbing, appellant’s companion entered the bedroom and covered Meli’s face with a pillow to prevent others from hearing the victim’s screams. When appellant and his companion left the room a few minutes later, Meli was fatally wounded but still alive. Before leaving, appellant secured Meli’s bonds and gagged him. Appellant then proceeded to an intersection where he had arranged to meet Meli’s brother and obtain the ransom money. After loitering in the area for several minutes, appellant observed what he believed to be police officers on a stakeout. Reaching the conclusion that Meli’s brother had. contacted the police, appellant left the area and returned home. Appellant reentered the bedroom in which Meli was being held and found his hostage dead. Appellant then dug a shallow grave in his backyard and buried his victim’s body.

On October 1, 1976, an investigation into Frank Meli’s disappearance culminated in the arrest of appellant’s two companions at appellant’s home. After learning that he was being sought by law enforcement officers, appellant surrendered to police near his residence. Thereafter, appellant was taken to the homicide office at the Dade County Public Safety Department and was advised of his Miranda rights. Appellant responded affirmatively to detailed questions of police with respect to whether he wished to waive these rights. When asked if he desired the presence of an attorney before speaking with the police, appellant answered, “I don’t need one if I told the truth. I don’t need no attorney.” Appellant then gave police a twenty-three page sworn statement, detailing his participation in the kidnapping and murder of Frank Meli, upon which an indictment was subsequently issued.

While incarcerated pending trial for the Meli incident, appellant was charged with the murder of Katrina Birk. Appellant was again advised of his Miranda rights which he specifically waived. Appellant responded in the negative to inquiries as to whether he desired to consult with the attorney who had been appointed to represent him in the Meli case. Appellant then gave a detailed sworn statement concerning the Birk homicide. Thereafter, appellant confessed to the killing of Daniel Pridgen, after again being advised of and waiving his Miranda rights.

Appellant was charged with the first degree murder and robbery of Daniel Prid-gen; three counts of attempted first degree murder and one count of first degree murder, robbery, and breaking and entering a dwelling and unlawfully assaulting persons therein in connection with the Birk incident; one count of murder, kidnapping for ransom, robbery and conspiracy to commit robbery as to Prank Meli. At arraignment, appellant entered pleas of not guilty to the charges. However, appellant thereafter withdrew these pleas and pleaded guilty to each offense. The court conducted an extensive voir dire examination of appellant with respect to the factual basis of each charge, in response to which appellant essentially reiterated the substance of his sworn confessions to police.

Appellant expressly waived his right to a jury during the sentencing phase of his trial under Section 921.141(1) and (2), Florida Statutes (1975), and specifically requested the Court to determine punishment without a jury.

On December 15, 1976, the circuit judge entered a written sentence of death as to each of the three counts of murder in the first degree; sentences of life imprisonment with respect to three counts of robbery and one count of kidnapping for ransom, and of breaking and entering and unlawfully assaulting persons therein; thirty years imprisonment as to each of three counts of attempted murder in the first degree; and fifteen years imprisonment for conspiracy to commit robbery. The sentences in each case were to run consecutively. The judge’s order included his findings in support of each sentence as required by Section 921.141(3), Florida Statutes (1975). The findings with respect to the Daniel Pridgen case were:

1.The murder . . was especially heinous, atrocious and cruel. Section 921.141(5)(h), Florida Statutes. The victim in this case did not meet a swift or relatively painless death. The murder was accomplished by the defendant’s repeatedly stabbing the body of the victim while the victim was held defenseless on a bed with no ability to defend himself. During the administration of the knife wounds, the victim was alive and in a position to feel the pain of each wound.
2. The murder . . was committed while the defendant was engaged in another dangerous and violent felony, to-wit: robbery, Section 921.141(5)(d), Florida Statutes, and the capital felony was plainly committed for pecuniary gain, Section 921.141(5)(f), Florida Statutes. The evidence adduced at the sentencing hearing indicates that the defendant stole money and a firearm from the victim’s apartment. Moreover, the defendant, through counsel, has conceded the applicability of Sections 921.141(5)(d) and (f), Florida Statutes, to the instant case. Under . . . Provence v. State, 337 So.2d 783 (Fla.1976), this court has treated the aggravating circumstances of Sections 921.141(5)(d) and (f), Florida Statutes, as one factor in determining that the sentence of death is appropriate.
3. The murder . . was committed for the purpose of avoiding or preventing a lawful arrest and to hinder the enforcement of the laws of this State. Section 921.141(5)(e), Florida Statutes. The victim of the robbery was plainly stabbed to death to allow the defendant to avoid detection and thereby prevent his arrest for these crimes.
4. A careful consideration of all matters presented to the court impels the conclusion that there are insufficient mitigating circumstances under Section 921.-141(6), Florida Statutes, to outweigh the aggravating circumstances set out above. As to the mitigating factors contemplated by law, the court makes the following findings:
a. While there was no evidence admitted of prior convictions of the defendant, he readily admitted that he had carried on a course of burglaries and had stolen property for a significant period of time, thus eliminating Section 921.141(6)(a), Florida Statutes, as a mitigating circumstance. The court finds, however, that even if the defendant were considered to have had no significant history of prior criminal activity, that the aggravating circumstances of this case would still clearly far outweigh this factor of mitigation.
b. The defendant was not suffering from the influence of extreme mental or emotional disturbance during the perpetration of the crimes outlined-above and the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to requirements of law was not substantially impaired. Sections 921.141(6)(b) and (f), Florida Statutes.
c. The victim was not a participant in the defendant’s conduct and he plainly did not consent to being brutally stabbed to death. Section 921.-141(6)(c), Florida Statutes.
d. While the defendant had an accomplice in the perpetration of his criminal acts, the defendant’s participation was nevertheless of major consequence to the murder of the victim. In no way could it be said that the defendant’s participation was relatively minor or that he was acting under extreme duress or substantial domination of another person. Sections 921.141(6)(d) and (e), Florida Statutes.
e.The defendant’s age of twenty-six at the time of his criminal conduct cannot be considered a mitigating factor, especially when viewed in the context of the defendant’s acts in planning and perpetrating these crimes and in disposing of the proceeds. Section 921.141(6)(g), Florida Statutes.

In support of its sentence in connection with the Birk incident, the court made the following findings:

1. The murder . . . was especially heinous, atrocious and cruel. Section 921.141(5)(h), Florida Statutes. The sixty-four year old murder victim was stabbed numerous times and eventually shot in the head by the defendant. This activity took place after the defendant broke into the victim’s home and robbed her in the presence of her three elderly sisters-in-law.
2. The murder . . . was committed while the defendant was engaged in other dangerous and violent felonies, to-wit: burglary and robbery, Section 921.141(5)(d), Florida Statutes, and the capital felony was plainly committed for pecuniary gain, Section 921.141(5)(f), Florida Statutes. Moreover, the defendant, through counsel, has conceded the applicability of Section 921.141(5)(d) and (f), Florida Statutes, to the instant case. [The court again treated Section 921.-141(5)(d) and (f) as one aggravating circumstance.]
3. The murder . . was committed for the purpose of avoiding or preventing a lawful arrest and to hinder the enforcement of the laws of this State. Section 921.141(5)(e), Florida Statutes. Not only was the victim in this case stabbed and shot to death, but her three elderly sisters-in-law were also shot and stabbed in an effort by the defendant to eliminate all of the witnesses to his crimes. This was clearly for the purpose of avoiding detection and thereby preventing his arrest for these crimes.
4. During the defendant’s criminal activities he knowingly created a great risk of death to many persons by stabbing and shooting the victim’s sisters-in-law. Section 921.141(5)(c), Florida Statutes. One of the living victims remains in an unconscious state and, based upon the neurological evaluation, is a “vegetable.” Another of the living victims was shot in the forehead and as a result has lost the sight of her right eye. The third living victim was shot in the back of the head and was stabbed to such an extent that she continues to have difficulty breathing as a result of lung damage.
5. A careful consideration of all matters presented to the court impels the conclusion that there are insufficient mitigating circumstances under Section 921.-141(6), Florida Statutes, to outweigh the aggravating circumstances set out above.

The court made the same findings in this case with respect to the mitigating circumstances under Section 921.141(6), Florida Statutes (1975), as were made in the Daniel Pridgen case.

As to the kidnapping and robbery and murder of Frank Meli, the court found that:

1. The murder . . . was especially heinous, atrocious, and cruel. Section 921.141(5)(h), Florida Statutes. The victim in this case, a twenty year old college student, did not meet a swift and relatively painless death. The murder was accomplished by the defendant’s repeatedly stabbing the body of the victim while the victim was tied spread-eagled on a bed with no ability to defend himself. In total the victim was stabbed eleven times. During the administration of the knife wounds, the victim was alive and in a position to feel the pain of each wound. .
2. The murder . . . was committed while the defendant was engaged in other dangerous and violent felonies, to-wit: kidnapping for ransom and robbery, Section 921.141(5)(d), Florida Statutes, and the capital felony was plainly committed for pecuniary gain, Section 921.141(5)(f), Florida Statutes. The evidence adduced at the sentencing hearing indicates that the defendant disposed of the proceeds of the crime by buying a motorcycle, paying off the co-defendants, and by entertaining himself at the dog track and at a bar. Moreover, the defendant, through counsel, has conceded the applicability of Sections 921.141(5)(d) and (f), Florida Statutes, to the instant case.

[The court again treated Section 921.-141(5)(d) and (f) as a single aggravating circumstance.]

3. The murder . . was committed for the purpose of avoiding or preventing a lawful arrest and to hinder the enforcement of the laws of this State. Section 921.141(5)(e), Florida Statutes. The victim of the robbery-kidnapping had an ample opportunity to view the defendant’s face and to observe the address to which he was taken, which was the defendant’s house. One of the obvious reasons for the defendant’s stabbing to death of the victim and then burying him in a crude four-foot grave was to avoid detection and thereby prevent his arrest for these crimes.
4. A careful consideration of all matters presented to the court impels the conclusion that there are insufficient mitigating circumstances under Section 921.-141(6), Florida Statutes, to outweigh the aggravating circumstances set out above.

The court made the same findings as to the mitigating circumstances under Section 921.141(6), Florida Statutes (1975), as were made in the other cases.

On his appeal of the judgments of guilty and sentences as to each of these three cases, the appellant raises two points for vacating the sentences of death:

(i) Whether the trial court erred in each of the above-styled causes in sentencing him to death by electrocution as provided by Section 921.141 and Section 775.082, Florida Statutes (1975); and

(ii) Whether imposition and carrying out of the sentence of death under Sections 921.141 and 775.082, Florida Statutes (1975), constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. We will consider appellant’s points on appeal in inverse order.

The assertion that imposition and carrying out of a sentence of death under Sections 775.082 and 921.141, Florida Statutes (1975), constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States has been rejected by the United States Supreme Court as well as this Court. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973). Accord, McCaskill v. State, 344 So.2d 1276 (Fla.1977); Barclay v. State, 343 So.2d 1266 (Fla.1977). Accordingly, we find this contention to be without merit.

Appellant Washington maintains that the trial court erred in several particulars in sentencing him to death in each of the cases. As to each case he submits that the court impermissibly found and considered certain aggravating circumstances whereas the court erred in failing to find and consider certain mitigating circumstances. As to each case appellant asserts that it was error to find that the homicide was especially heinous, atrocious or cruel. Section 921.-141(5)(h), Florida Statutes (1975). We disagree.

The victim Pridgen was stabbed repeatedly while appellant’s accomplice held him helpless and unable to defend himself. Pridgen received seven potentially fatal wounds, none of which would have caused instantaneous death. Dr. Fernandez testified that it would have taken minutes for the victim to die and Washington’s confession established that Pridgen was struggling, wiggling, and trying to cry out. His face was covered with a pillow to mute the cries of pain and anguish which attend such a ferocious stabbing attack. Halliwell v. State, 323 So.2d 557 (Fla.1975), is inapposite because the victim there was quickly dispatched while dismemberment of his body occurred after death.

The homicide of the victim Meli was similar, but even more heinous, atrocious and cruel due to the fact that he was held captive in excess of twenty-four hours while the victim of a kidnapping. The mental anguish experienced by a kidnapped victim awaiting eventual death has been noted in an earlier decision of this Court as it bears on the atrocity of the crime. Knight v. State, 338 So.2d 201 (Fla.1976). The murder was effected while Meli was tied spread-eagled on a bed with no ability to resist. Once again an accomplice covered the victim’s face with a pillow to stifle his outcry from receiving multiple stab wounds. That Meli was alive during the course of the attack is borne out by the testimony of Dr. Wright who related that although one of the wounds could have caused near instantaneous death, while each wound was delivered Meli had blood pressure capable of producing hemorrhage, indicating that life continued. More dramatic evidence of continued life during the assault is supplied by the appellant’s confession. Washington described that Meli’s face was covered with a pillow because he was hollering. Meli then discontinued hollering and began moaning. Meli then repeated the Lord’s Prayer three or four times.

Katrina Birk was the victim of a calculated robbery which resulted in her murder. She was stabbed repeatedly and was also shot in the head. The bullet did not penetrate her skull and the cause of death was four of the nine stab wounds, none of which was instantly fatal. She was murdered in her own home in the presence of her three sisters-in-law who were later shot in the head and stabbed. The atrocity of the episode cannot be gainsaid. Cf. Funchess v. State, 341 So.2d 762 (Fla.1977).

Appellant next urges that it was error to find that the capital felonies were committed for the purpose of avoiding or preventing a lawful arrest. Section 921.-141(5)(e), Florida Statutes (1975). With respect to the Meli episode, he states that it is illogical to assume that the homicide was committed in order to prevent a lawful arrest when appellant surrendered to the police and admitted to committing the crime. This position is untenable in view of the fact that appellant buried the victim’s body in a shallow grave in his backyard. It is further belied by the fact that Washington surrendered to the authorities only after his two accomplices were arrested at appellant’s residence, and he learned that he was also sought by the police.

Appellant makes the same argument in connection with the killing of Katrina Birk. He asserts that had he wished to eliminate all witnesses in order to prevent arrest, it must be presumed he would have killed the three sisters-in-law as well as the victim. Appellant’s position is unacceptable. There is every indication from the evidence that he attempted to do just that. He essentially seeks to be rewarded for poor marksmanship.

In respect to the victim Pridgen, Washington maintains that his confession indicated that the sole reason for the homicide was because the victim was a homosexual. The prevention of a lawful arrest was merely the concurrent effect of the murder, rather than the motive. This contention is eroded by the fact that it is clear from the record that robbery was a concurrent motive for the crime. Furthermore, the participants, after the killing, wrote matters on the walls of the house in order to leave the impression that Pridgen was murdered by a homosexual lover. This action could only have been calculated to serve as a device to mislead police authorities and thereby avoid detection. Nonetheless, even if Section 921.141(5)(e) is not supported by the evidence in the case of the Pridgen homicide, two well-founded additional aggravating factors [Section 921.141(5)(d) and (h)] and no mitigating factors were present. Under such circumstances the death penalty is appropriate. Elledge v. State, 346 So.2d 998 (Fla.1977); State v. Dixon, supra.

Appellant additionally submits that Section 921.141(5)(e) should be taken in conjunction with the finding under subsection (d) [capital felony committed while defendant engaged in committing robbery and kidnapping] and subsection (f) [capital felony committed for pecuniary gain] of Section 921.141(5). He suggests that when the three subsections are read together it is apparent that under any kidnapping/homicide or robbery/homicide situation all these provisions would invariably be applicable. An analogy is sought to be drawn with Provence v. State, supra. Although it is true that in some instances the three analytical concepts could combine automatically in the described situations we cannot say as in Provence that circumstance (e) always occurs in a robbery/murder-kidnapping/murder situation. For example, a homicide can occur in connection with a robbery or kidnapping solely because the victim attempts to resist the crime which precipitates an altercation during which the victim is killed. In recognition of this we have heretofore affirmed death sentences in eases where the subsection (e) aggravating circumstance has been found in combination with a subsection (d) aggravating circumstance involving robbery as well as kidnapping. Meeks v. State, 339 So.2d 186 (Fla. 1976) (robbery); Knight v. State, supra (kidnapping).

We come now to Washington’s assault upon the trial judge’s sentences, alleging his failure to consider the presence of two mitigating circumstances specified by Section 921.141(6), Florida Statutes (1975), plus an additional circumstance which he maintains should have been considered in mitigation. He first assails the judge’s failure to find the lack of a significant history of prior criminal activity. Section 921.-141(6)(a), Florida Statutes (1975). However, it appears from the record, and was recognized by the trial judge, that appellant had carried on a course of burglaries and had stolen property for a significant period of time. In his confession in the Birk case appellant stated he had committed a series of burglaries throughout Dade County and sold the stolen merchandise to Katrina Birk and her husband. He reiterated in open court that he was selling “hot merchandise” to Katrina Birk. Appellant asserts that under the rule announced in Provence, supra, previous convictions are required to negative Section 921.141(6)(a). Washington misconstrues the holding of Provence. That case construed Section 921.141(5)(b) which requires previous conviction of another capital felony involving the use or threat of violence. We held: “Clearly the language of that subsection excludes the possibility of considering mere arrests or accusations as factors in aggravation.” (Emphasis supplied) 337 So.2d at 786. Section 921.-141(6)(a) makes no reference to conviction and, hence, Provence has no application to the instant case.

Washington next asserts that his age (26 years) should have been considered as a mitigating factor. Section 921.-141(6)(g), Florida Statutes (1975). This argument is without merit. In Songer v. State, 322 So.2d 481 (Fla.1975), we upheld the death sentence of a twenty-three-year old, stating “[TJoday one is considered an adult responsible for one’s own conduct at the age of 18 years.” Id. at 484. See also Barclay v. State, supra (defendants 27 and 23 years of age, respectively); Sullivan v. State, 303 So.2d 632 (Fla.1974) (defendant 25 years of age).

Appellant argues finally that the trial judge erred in not considering in mitigation the fact that the defendant voluntarily surrendered to the authorities, confessed and ultimately pleaded guilty to all charges. While we do not foreclose consideration of such factors in mitigation in an appropriate case, we do not believe the appellant’s actions are compelling here. First, it is clear that he did not surrender until he was aware that his accomplices had been apprehended at his residence and that he was also sought by the police. Furthermore, the considerations which make up the decision of a defendant to plead guilty, in the absence of a negotiated plea, are too ambiguous to assign significant weight to that act. Had Washington’s accomplices not been apprehended and had he not become the focus of suspicion, we can only speculate as to what his conduct would have been regarding his accepting responsibility for the crimes. Such speculation is too slender a reed upon which to rest a reversal of the death sentences in these cases in light of the array of aggravating circumstances present.

After a careful review of the record, we are satisfied that the pleas of guilty to murder in the first degree, attempted murder in the first degree, kidnapping for ransom, breaking and entering a dwelling and unlawfully assaulting persons therein, robbery and conspiracy to commit robbery were freely and voluntarily entered into and supported by a factual basis in the record. We conclude that death is the appropriate penalty on each judgment of guilty of murder in the first degree, and that the sentences imposed as to other counts are also in accordance with law. Accordingly, the judgments of guilty and sentences in the cases consolidated herein, including the sentences of death, are affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON and SUNDBERG, JJ„ concur.

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

HATCHETT, J., concurs in result only.

ENGLAND, Chief Justice,

concurring.

I concur in all aspects of today’s decision except the Court’s conclusion that Washington’s conduct in each of the three criminal episodes reflected an attempt to avoid or prevent a lawful arrest within the meaning of Section 921.141(5)(e), Florida Statutes (1975). As construed today, this aggravating factor would be applicable in virtually every capital case. In fact, examples of situations in which this additional factor might have tipped the balance from life to death quickly come to mind.

Under the Court’s “body-concealing” rationale as to the Meli episode, Section 921.-141(5)(e) would have added an additional aggravating factor in Halliwell v. State, 323 So.2d 557 (Fla.1975), and in Burch v. State, 343 So.2d 831 (Fla.1977). Under the Court’s “ruse-to-mislead-the-police” rationale as to the Pridgen killing, Section 921.-141(5)(e) would have added an additional aggravating factor in Elledge v. State, 346 So.2d 998 (Fla.1977). Finally, under the Court’s rationale that the attempted killings of Katrina Birk’s sisters-in-law constitute an aggravating factor in connection with Birk’s death, an additional aggravating circumstance would have been appropriate in Buckrem v. State, 355 So.2d 111 (Fla.1978).

I would reserve the “avoid or prevent lawful arrest” aggravating factor for cases, such as those in which the defendant participates in a “shoot out” with apprehending law enforcement officers, and possibly others in the same genre but not now as clearly identifiable.

      . The record states in pertinent part:
      “THE COURT: You also have a right under our law to have a jury impaneled for the purpose of determining or making a recommendation to the Court as to what penalty would be involved in this case. They would be impaneled. They would hear testimony that would relate to the aggravating circumstances of the crimes involved. They would hear evidence as relates to any mitigating circumstances, your background, and whatever other things might be covered by an enumerated list.
      “Do you understand that?
      “THE DEFENDANT: Yes. I do.
      “THE COURT: [Your attorney] has discussed that with you, has he not?
      “THE DEFENDANT: Yes. He has.
      “THE COURT: By saying, ‘Judge, I don’t want a jury to make a recommendation. I want you to hear it,’ you are giving up the right you have to have a jury do that.
      “Do you understand that?
      “THE DEFENDANT: Yes. I do.
      “THE COURT: It is your desire to have me and me alone to determine your fate. Is that what you are saying?
      “THE DEFENDANT: Yes. I do. I understand that.
      “THE COURT: Has [your attorney] . . .
      or anybody involved in these conversations given you any indication as to what results I would arrive at in this case.
      “THE DEFENDANT: No. I haven’t.”

      . Had these attempts been successful they may well have reflected an attempt to avoid detection and arrest in consideration of the sisters-in-law’s deaths. They do not, however, characterize in any way the circumstances of Mrs. Birk’s death.

      . Compare the Court’s narrow construction of the aggravating factor of a knowing great risk of death to many persons, limiting its applicability to “conduct surrounding the capital felony for which the defendant is being sentenced,” in Elledge v. State, 346 So.2d 998, 1004 (Fla. 1977).


author: SUNDBERG, Justice.

text:
    Michael WHITTED, Appellant, v. STATE of Florida, Appellee.
    No. 51960.
    Supreme Court of Florida.
    Sept. 7, 1978.

      Philip J. Padovano, St. Petersburg, and Martin E. Rice of Harris, Clark, Green, Piper & Davenport, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SUNDBERG, Justice.

This cause is before us on appeal from an order of the judge of the County Court for Pinellas County, Florida, which initially and directly passed on the constitutionality of Section 796.07(3)(a), Florida Statutes (1975). We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellant, Michael Whitted, was charged with the offense of prostitution, lewdness or assignation under Section 796.07(3)(a), Florida Statutes (1975), for having engaged in sexual intercourse with a 15-year-old student, Lucy Carr. Appellant entered a written plea of not guilty and the case was set for jury trial. Prior to trial appellant filed a motion to dismiss the information alleging, inter alia, that Section 796.-07(3)(a), is unconstitutional in that the term “lewdness” is unconstitutionally vague. Appellant further maintained that, even assuming the constitutional validity of the enactment, the information failed to charge him with a violation of its provisions because mere vaginal sexual intercourse does not constitute “licentious sexual intercourse without hire,” the definition of “prostitution.” The trial judge rejected these contentions and specifically upheld the constitutionality of Section 796.07(3)(a).

During his opening statement at trial, the prosecutor referred to the case as involving a round-robin sexual intercourse between three high school teachers and two 15-year-old female students. The state attorney outlined an afternoon of marijuana smoking, beer drinking and intermittent sex between the students, Lucy Carr and Lisa Webb, and Coaches Stellmach and Jordan. The sexual activities between Lucy Carr and appellant were then referred to. During his opening argument, defense counsel challenged the accuracy of the prosecutor’s summary of the case and told the jury “that the evidence will show that we have two girls here who have severe emotional problems, severe drug problems, and severe credibility problems.” During the presentation of his case-in-chief the prosecutor sought to introduce evidence of the reputation of these two girls for truth and veracity in their community. Defense counsel objected, arguing that the truthfulness and veracity of these witnesses had not been placed in issue. In response, the state attorney argued that this question had been raised by virtue of defense counsel’s statement during opening argument that the girls have “severe credibility problems.” The objection was overruled and the testimony in dispute was introduced.

Lisa Webb testified that on the afternoon of January 24, 1977, she accompanied the victim, Lucy Carr, to the residence of Coach Jordan. She stated that after smoking marijuana and drinking beer, she and Lucy Carr went into Jordan’s bedroom and undressed. At several points defense counsel objected to Lisa Webb’s testimony concerning the sexual encounter between the girls and Coach Jordan on the ground that it was irrelevant to the charge against appellant, noting that this encounter occurred approximately seven hours prior to the alleged activities of appellant and Lucy Carr. In response to the objection, the prosecutor informed the Court:

I think it’s important to show, he [defense counsel] has claimed we have mentally deranged, drug infected, whatever the words are he used, witnesses testifying. I have to [sic] got to show their state of mind when they came in contact with Mr. Whitted, and what preceded it is relevant to their state of mind when they came in contact with him, the sexual activities they had before they came in contact with him.

Although appellant’s attorney agreed that it was proper for the prosecutor to elicit testimony regarding the girls’ consumption of alcohol and marijuana as relevant to their state of mind, he hotly contended that their sexual activities with Coach Jordan were irrelevant to the charge against appellant. The state attorney argued, however, that these activities were relevant because they preceded, albeit by seven hours, the event out of which appellant’s prosecution arose. The trial judge overruled defense counsel’s objection. Lisa Webb thereafter related to the jury that she and Lucy Carr had engaged in sexual activities with Coach Jordan at the same time. Following this first encounter, Coach Jordan told Lucy Carr to smoke some more marijuana and go into the other bedroom and “lay” Coach Stellmach. After Lucy left the room, Lisa and Coach Jordan went into the bathroom to take a bath.

Lucy Carr’s testimony about the initial events was essentially the same as that of Lisa Webb. Defense counsel, however, did not object to this testimony of Lucy Carr. Following her sexual contact with Coach Stellmach, Lucy Carr went into the bathroom clad only in a sweatshirt and panties and observed Coach Jordan and Lisa Webb taking a bath. Jordan asked Lucy to summon appellant who was sitting in the living room watching television. Appellant went into the bathroom and observed Jordan and Lisa Webb in the bathtub. Following a suggestion by Jordan, appellant took Lucy Carr into the living room and had sexual intercourse with her.

Appellant’s attorney requested permission to introduce evidénce of his client’s good character for truth and veracity. The trial court denied the request, ruling that appellant’s character would be placed in issue, thus rendering such evidence admissible, only if appellant took the stand and controverted the testimony of Lucy Carr and Lisa Webb. However, appellant had chosen not to testify in his own behalf.

At the conclusion of the State’s case, appellant’s counsel renewed his motion to dismiss the information based on the unconstitutionality of Section 796.07(3)(a), Florida Statutes (1975), alleging that the phrase “licentious sexual intercourse” is vague in failing to specify the conduct which it seeks to proscribe. The phrase was additionally attacked for overbreadth as allegedly including constitutionally protected conduct within its scope. This motion was again denied by the trial judge. Defense counsel rested his case without presenting any evidence. The jury returned a verdict of guilty of prostitution. Appellant was adjudicated guilty by the court and sentenced to a term of forty days in the county jail with twenty days suspended.

Seven issues have been raised for consideration by this Court:

(1) Whether the term “assignation’.’ in Section 796.07(3)(a), Florida Statutes (1975), is impermissibly vague for failure to specify the statutorily proscribed conduct; (2) whether the term “lewdness” is also vague; (3) whether the phrase “licentious sexual intercourse without hire” is vague or, alternatively, is overbroad in seeking to proscribe constitutionally protected activity; (4) whether, assuming the constitutional validity of Section 796.07(3)(a), the information failed to charge appellant with the crime of prostitution in that mere vaginal sexual intercourse does not constitute “licentious sexual intercourse without hire”; (5) whether the trial court erred in excluding testimony of appellant’s good character for truth and veracity; (6) whether the trial court erred in admitting evidence of the sexual activities of Coach Jordan with Lisa Webb and Lucy Carr; and (7) whether the trial court properly permitted introduction of evidence of the good character of the State’s witnesses Lisa Webb and Lucy Carr for truth and veracity.

The first three issues involve the constitutionality of Section 796.07(3)(a), the trial judge’s ruling upon which constitutes the basis of our jurisdiction. Article V, Section 3(b)(1), Florida Constitution. By virtue of our jurisdiction with respect to the constitutional issues we are also empowered to determine the remaining points on appeal. Allen v. State, 326 So.2d 419 (Fla.1975).

Because appellant failed to raise the first issue in either of his motions to dismiss in the trial court, thus preserving it for review, we decline to entertain this issue on appeal. Florida Power Corp. v. Pinellas Utility Board, 40 So.2d 350 (Fla. 1949); Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); Jackson v. Whitmire Construction Co., 202 So.2d 861 (Fla.2d DCA 1967); Michel v. Bayshore Marina, Inc., 183 So.2d 294 (Fla.3d DCA 1966). Appellant’s second contention, that the term “lewdness” is constitutionally defective for vagueness, was rejected in our decision in Bell v. State, 289 So.2d 388 (Fla. 1973).

Similarly, appellant’s third point on appeal which posits, inter alia, that the phrase “licentious sexual intercourse without hire” is unconstitutionally vague, was disposed of adversely to appellant by our recent decision in Tatzel v. State, 356 So.2d 787, (Fla.1978). The reasoning expressed in Tatzel is also dispositive of appellant’s over-breadth contention.

Application of our decision in Tatzel v. State, supra, also dictates that appellant’s fourth point must fail. Because appellant engaged in sexual intercourse with an unmarried female he ran afoul of the prohibition of Section 798.03, the fornication statute, and, concomitantly, engaged in licentious sexual intercourse without hire in violation of Section 796.07(3)(a), the prostitution statute. Consequently, the information filed against appellant did not fail to charge him with a violation of Section 796.-07(3)(a).

Appellant next asks us to consider whether the trial court erred in excluding defense witnesses’ testimony regarding appellant’s good character for truth and veracity. Although appellant’s attorney objected to this action of the trial judge, he failed to proffer for the record the testimony sought to be introduced. Consequently, we are unable to determine whether error occurred with respect to appellant’s fifth point on appeal. See Mitchell v. State, 321 So.2d 108 (Fla. 1st DCA 1975); Gaines v. State, 244 So.2d 478 (Fla. 4th DCA 1970); Powers v. State, 224 So.2d 411 (Fla.3d DCA 1969).

The sixth issue before us relates to the State’s introduction, over objection of defense counsel, of evidence of the sexual activities between Coach Jordan and Lisa Webb and appellant’s victim, Lucy Carr. Both Lisa Webb and Lucy Carr rendered similar accounts of these activities in their testimony. The want of objection as to Lucy Carr does not preclude our determination of the admissibility of evidence of these events through the testimony of Lisa Webb, to which an objection was made. We conclude that reversible error resulted from introduction of this evidence which, as to the charge against appellant, was both irrelevant and highly prejudicial. In Hirsch v. State, 279 So.2d 866 (Fla.1973), this Court reviewed the conviction of a petitioner who was charged with having committed perjury during a court proceeding. In holding that it was reversible error to introduce evidence that a third person had attempted to suborn perjury with respect to other persons who were involved in the same court proceeding, we noted:

The testimony sought to be elicited in the petitioner’s trial dealt, . . . with an alleged criminal act committed not by petitioner but rather by a third party . . See Kellum v. State, 104 So.2d 99 (Fla.3d DCA 1958). The determination of the admissibility of the testimony in dispute must be resolved by a consideration of basic fundamental rules of evidence.
It is interesting to note that even under the Williams rule [Williams v. State, 110 So.2d 654 (Fla.1959)] evidence which is relevant is inadmissible if its sole purpose is to “show the propensity of the accused to commit the instant crime charged.” If the aforementioned objectionable testimony did not directly involve the petitioner and if it had no tendency to demonstrate the commission of a collateral (related) crime what purpose then could such evidence serve except to suggest a tendency, inclination, ergo propensity of the petitioner to have committed the crime for which he was charged? See Williams v. State, supra; see also Anthony v. State, 246 So.2d 600 (Fla.App. 1971).

279 So.2d at 869 (emphasis in original). The prejudicial effect of the evidence admitted in Hirsch was clear; the only purpose that the testimony could have served was to create a belief in the minds of the jurors that, because a third person may have influenced others to commit perjury in a particular judicial proceeding, petitioner had also been persuaded to commit this crime with regard to the same proceeding. In the case sub judice, a similar result obtained from introduction of evidence of the alleged sexual acts committed upon the two young girls by Coach Jordan. The irrelevancy of this evidence is reflected by the testimony that these events occurred approximately seven hours before the encounter of appellant with Lucy Carr and the absence of evidence that appellant was present during this time or was even aware that the activities were taking place. The sole purpose of this testimony was to create an impression in the minds of the jurors that, because Coach Jordan had engaged in sexual intercourse with Lucy Carr, appellant had also engaged in this conduct while at Jordan’s home a few hours later. Consequently, we must reverse the conviction of appellant.

The final issue raised by appellant will be entertained in order to render guidance to the trial court on any possible retrial of this cause. We conclude that the State was improperly permitted to introduce evidence of the good character of its witnesses Lisa Webb and Lucy Carr for truth and veracity. This is so because the good character of a witness may not be supported unless it has been impeached by evidence. See Mercer v. State, 40 Fla. 216, 24 So. 154 (1898); 4 Wigmore Evidence § 1104 (Rev. ed. 1972). In the instant cause, the ■ only remark of defense counsel with regard to the credibility of these two witnesses was made during opening argument. It is uncontroverted that the opening remarks of counsel do not constitute evidence, Wheeler v. State, 311 So.2d 713 (Fla. 4th DCA 1975), a fact of which the jury here was informed. Had defense counsel impeached the credibility of these individuals with evidence the State would have been entitled to rehabilitate their character bearing upon truth and veracity. Here, however, appellant’s attorney merely stated in opening argument — the purpose of which is to outline for the jury what he expects to be established by the evidence — that these girls would be shown to have “severe credibility problems.” The State could have protected itself from any possibility that the jury might have considered these remarks as evidence by reminding the jury during its closing argument that representations by defense counsel in opening argument may not be considered as evidence. Furthermore, the State might have noted the failure of defense counsel to introduce a shred of evidence in support of its assertion that the State’s witnesses had “severe credibility problems.” Indeed, this approach would very likely have had the effect of bolstering the credibility of these witnesses for the State. Although we have found error as to appellant’s seventh point, we find it unnecessary to determine whether such constituted reversible error due to our disposition of this cause on other grounds.

For the reason heretofore expressed, we reverse the conviction of appellant, Michael Whitted, and remand the cause to the County Court for Pinellas County, Florida, for disposition not inconsistent herewith.

It is so ordered.

ADKINS, BOYD and ALDERMAN, JJ., concur.

ENGLAND, C. J., and OVERTON and HATCHETT, JJ., concur in result only.

      . § 796.07(3)(a), Fla.Stat. (1975), provides:
      “(3) It shall further .be unlawful in the state:
      (a)To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.”
      Subsections (l)(a)-(c) of the enactment define the terms prostitution, lewdness, and assignation:
      “(1) As used in this section, unless the context clearly requires otherwise:
      (a) The term ‘prostitution’ shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for licentious sexual intercourse without hire.
      (b) The term ‘lewdness’ shall be construed to include any indecent or obscene act.
      (c) The term ‘assignation’ shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.”

      . Because appellant failed to raise on this appeal one of the points argued below in support of this motion to dismiss, we will not address or consider that issue. Kay v. Key West Development Co., 72 So.2d 786 (Fla.1954); Laramore v. Laramore, 64 So.2d 662 (Fla. 1953); Lightsee v. First National Bank of Melbourne, 132 So.2d 776 (Fla.2d DCA 1961).

      . No objection was made to the testimony of the sexuai encounter with Coach Stellmach.


author: ENGLAND, Chief Justice. BOYD, Justice,

text:
    FLORIDA REAL ESTATE COMMISSION, Appellant, v. D. Harold JOHNSON, June Lewis, Daniel L. Boyce, as Individuals, and Garden Properties, Inc., Appellees.
    No. 52336.
    Supreme Court of Florida.
    Sept. 7, 1978.
    John Huskins and Howard Hadley, Winter Park, for Florida Real Estate Commission, appellant.
    James E. Moore, of Moore & Anchors, Niceville, for appellees.
    Stephen W. Metz, Tallahassee, for Florida Home Builders Association, amicus curiae.
   ENGLAND, Chief Justice.

Following our recent unwillingness to apply the “one corporate officer” limitation in the real estate license law to one corporate landowner in Florida, the Florida Real Estate Commission has continued its policy of enforcing the statute to deny other corporate landowners the privilege of selling their properties through the activities of more than one unlicensed corporate employee. The present case, which arises out of the Commission’s attempt to enjoin Garden Properties, Inc. from selling its real property through three salaried, non-licensed employees, brings to us for consideration the validity of the statutory limitation as applied to corporate landowners generally.

The circuit court in Bay County declared the “one officer” limitation of Section 475.-01(2), Florida Statutes (1975), to be viola-tive of the federal and state constitutions in that it denies corporate landowners equal protection of the laws. From this ruling, a direct appeal was brought here. Having now considered the effect of the statutory limitation on corporate landowners generally, we affirm the circuit court’s ruling that the limitation is invalid.

The Real Estate License Law — Chapter 475, Florida Statutes (1977) — requires the licensing and regulation of all persons who sell real property in the state, with certain exceptions. Exempted from the operation of the statute are individuals dealing with their own property, certain partners of a partnership, one officer of a corporation, and all employees of public utilities, rural electric cooperatives, railroads, and the Department of Transportation. In Florida, Real Estate Commission v. McGregor, we held that the one corporate officer exemption did not apply to sales made by McGre-gor and other employees of Mid-Sales, Inc. under the peculiar circumstances by which that corporation was obliged to sell its property. We reasoned that the “one officer” limitation was the legislature’s attempt to place corporations on a parity with individual property owners who have the constitutional right to deal with their own property, but that, as applied to Mid-Sales, Inc., the classification creating the exemption bore no reasonable relationship to the protection of the public. We also pointed out that the rationale for regulating real estate brokers and salesmen — that their misconduct cannot be imputed to and recompensed by clients — does not apply when one deals with the employee of a corporate property owner, since the injured party has direct recourse against the employer-owner under the doctrine of respondeat superior.

The policy reasons which governed in McGregor have universal application, and we now see no rational basis to distinguish Mid-Sales, Inc.’s disposal of its properties from like sales by any other corporation. Section 475.01(2) denies equal protection of the laws to corporations which own and seek to sell their property in this state, and to the extent that it limits the right to sell corporate real property to only one unlicensed corporate employee it is unconstitutionally restrictive. The order of the Bay County Circuit Court is affirmed.

It is so ordered.

ADKINS, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I dissent for the reasons expressed in my dissent in Florida Real Estate Commission v. McGregor, 336 So.2d 1156, at 1161 (Fla. 1976). The purpose of this law is not to prevent competition with licensed brokers and salesmen, but to protect the public from dealing with corporate employees who are incapable of meeting mental and moral standards required of all brokers and salesmen in this State.

      . Florida Real Estate Comm'n v. McGregor, 336 So.2d 1156 (Fla.1976), construing Section 475.01(2), Florida Statutes (1975).

      . U.S.Const. amend. XIV; Art. I, § 2, Fla.Const. See Florida Real Estate Comm’n v. McGregor, 336 So.2d 1156, 1160 n. 5 (Fla.1976).

      . Art. V, § 3(b)(1), Fla.Const.

      . § 475.01(2), Fla.Stat. (1977).

      . 336 So.2d 1156 (Fla.1976).


author: PER CURIAM. ANSTEAD, Judge. LETTS, Judge, concurring DAUKSCH, Judge,

text:
    INLAND CAPITAL CORPORATION and Jack J. Winston, Petitioners, v. Gerald A. LEWIS, as State Comptroller and Head of the Department of Banking and Finance, State of Florida, Respondent.
    No. 77-355.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    On Rehearing Aug. 23, 1978.
    Milton J. Wallace and Sidney M. Pertnoy, Miami, for petitioners.
    William B. Corbett, Jr., and Ryland T. Rigsby, Asst. Gen. Counsels, Tallahassee, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.

ON REHEARING GRANTED

ANSTEAD, Judge.

The petitioners, Inland Capital Corporation and Jack Winston, are here seeking review of an order cancelling their broker’s licenses without a hearing.

The respondent notified the petitioners on November 24, 1976, that an administrative complaint had been filed against petitioners and that the respondent intended to cancel their broker’s licenses:

You are hereby notified that, after twenty-one (21) days from your receipt hereof, the Division intends to refuse or deny and revoke or suspend the application and license herein, on the grounds set forth in the foregoing Complaint.
Before taking such action to refuse or deny and revoke or suspend said application and license, you may show, pursuant to Section 120.60(4), F.S., your compliance with all lawful requirements for the retention of said license or registration, and you may petition for a hearing pursuant to Section 120.57, F.S. An original and one copy of your petition for hearing shall be filed within twenty-one (21) days of your receipt of this notice, at the address indicated below.

On December 15,1976, exactly 21 days after receiving the notice, the petitioners mailed a response alleging a meritorious defense to the complaint and requesting a hearing. Subsequently, on December 23, 1976, after receiving the response and request for a hearing, the respondent adjudicated the petitioners to be in default for not answering within 21 days, and on December 29, 1976, cancelled the licenses. A request to set aside the default was refused by the respondent. We think, under the circumstances shown here, that the default should have been vacated and the petitioners granted a hearing. Although the notice cited above expressed the intent of the respondent to take the action complained of, it also advised the petitioners of their right to respond to the complaint before the action was taken. The petitioners did respond before any action was taken. In their response, they asserted a meritorious defense and did not seek to delay the proceedings. Accordingly, we hold that the petitioners were entitled to a hearing on the merits of the administrative complaint. The petition for writ of certiorari is hereby granted and the order of December 29, 1976, is quashed with directions for further proceedings in accordance with this opinion.

DAUKSCH, J., concurring specially with opinion.

LETTS, J., concurring specially with opinion.

LETTS, Judge, concurring

specially:

I agree with Judge Anstead, but find it worth-while to discuss the administrative requirement that the petition “be filed within 21 days of your receipt of the notice. . ."

Technically the petition was not filed within the 21 days, but was mailed within that time. I agree this should suffice if the petition gets there before the division of finance has acted. The problem will be, that upon receipt of this opinion, the State agency may react by making sure that, henceforth, positive action is taken on the morning of the 22nd day. I feel this should be error.

As the agency itself admits, Section 120.-57, Florida Statutes (1975), which governs the A.P.A., contains no time limits mandating when and how a party must respond. Accordingly, the agency reasons that the legislature has left the manner of response to its discretion. I do not disagree with that, but feel that basic fundamental fairness must be the standard. This is not an impartial court demanding that a jurisdictional filing take place on or before a certain date. Rather this is the demand of the partial agency who will itself wield the default axe. In my view, proof of mailing within the time period should suffice, otherwise the agency is jumping out of dark corners on lawyers long accustomed to filing responsive pleadings under Fla.R.Civ.P. 1.090(e). A similar proof of mailing provision would, in my view, better serve the “reasonable notice” requirement set forth in Chapter 120.57. We note Judge Smith’s opinion in Fox v. South Florida Regional Planning Council, 327 So.2d 56 (Fla. 1st DCA 1976) holding that mailing time cannot be added where administrative appeals are concerned. We do not quarrel with his opinion based, as it was, on a Supreme Court decision. However, in the case at bar we are not concerned with an appeal but with an “administrative complaint” calling for a responsive pleading. I find the distinction compelling.

DAUKSCH, Judge,

concurring specially:

I also concur and add my thoughts by distinguishing this case from Scherer v. Liberto, 353 So.2d 1224 (Fla. 4th DCA 1978) which might seem to be in conflict. In Scherer, supra, the failure to act caused a deprivation of jurisdiction because a statute required the filing on or before the expiration of 20 days. Here, as Judge Letts notes, is a rule of an administrative agency which by its very nature cannot determine its own jurisdiction. It can, and did establish rules of practice but those rules are not jurisdictional and we do not have to apply so harsh a requirement as the statute mentioned in Scherer, supra, does.