author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Charles FOWLER v. STATE.
    4 Div. 641.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Dec. 19, 1978.
    Samuel L. Adams of Adams & Bates, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State. u
   LEIGH M. CLARK, Retired Circuit Judge.

The indictment upon which appellant was tried is as follows:

“The Grand Jury of said County Charge that, before the finding of this Indict-rnent, Charles Fowler, alias Charles D. Fowler, whose name is to the Grand Jury otherwise unknown, unlawfully and with malice aforethought, did assault Brenda J. Lee with the intent to murder her in said County against the peace and dignity of the State of Alabama.
“Count II
“The Grand Jury of said County Further Charge that, before the finding of this Indictment, Charles Fowler, alias Charles D. Fowler, whose name is to the Grand Jury otherwise unknown, the driver of a motor vehicle, in Houston County, Alabama, involved in an accident resulting in injury to Brenda J. Lee, wherein the said, Brenda J. Lee was bruised and was injured internally, and received other bodily injuries, did fail to immediately stop such vehicle at the scene of such accident, and did fail to give his name and address, and the registration license number of his vehicle, and did fail to render to Brenda J. Lee, the person injured in such accident, such reasonable assistance, including the carrying of such injured person to a physician or surgeon for medical or surgical treatment, it being apparent that such treatment was necessary, as required by law in the State of Alabama.” The jury returned a verdict as follows:
“We, the Jury, find the defendant, Charles Fowler, guilty of Leaving Scene of Accident as charged in the Indictment. We fix his fine at $250.00.” The court imposed additional punishment of “12 months hard labor for Houston County, Alabama,” and sentenced appellant accordingly.

At the conclusion of the evidence for the State, defendant moved to exclude the evidence. The motion was overruled. Defendant requested in writing the affirmative charge in favor of defendant as to each count of the indictment. The court refused both of such charges.

The sole question presented on appeal is whether the evidence supports the verdict of the jury and the judgment rendered thereon.

It seems clear, and there is no contention otherwise, that the verdict is not referable to the first count of the indictment, that, if referable to either count, it is to Count II only.

Witnesses for the State were Dan Bag-well, Brenda Lee, Tana Harris, Jeanette Weeks, Nathan Stanton and Dan McGriff. Defendant did not testify and called no witnesses in his behalf. There was little, if any, material conflict in the evidence.

Dan Bagwell testified that he had been driving a 1973 Cheyenne Pickup truck on the night of December 9,1977, when he was asked for a ride by defendant, whom Bag-well knew as a student in high school in Houston County, they both being approximately seventeen years of age. With Bag-well’s permission, defendant boarded the truck and sat down on the passenger’s side of the seat of the truck. They drove to the Jr. Food Store on the Montgomery Highway in Dothan. The truck was brought to a stop in the parking lot of the store, about thirty-five yards from the highway, and in front of the store. Instead of driving to the curb in front of the store, the truck was stopped about “a length and a half from the curb,” because there was a car parked at the curb, and enough room was left for the car to get out. In stopping the truck, Bag-well placed the gear in park but did not apply the parking brakes. He left the engine running and left the car to talk with Brenda Lee whom he saw in front of the store. During all the time that Bagwell observed defendant, defendant was sitting on the passenger’s side of the seat of the truck. Defendant was highly intoxicated. Bagwell had drunk two or three beers that night. He talked with Brenda for about five minutes while they were standing between the truck and the side of the store. During that time, the automobile between the truck and the store had pulled out. The next thing Bagwell remembered was as he and Brenda were hit by the truck as it moved forward across the curb, the sidewalk of the store and drove into the store through its plate glass window. He had some torn ligaments, a sprained ankle and some cuts and bruises, was rendered unconscious, but partly regained consciousness on his way to the hospital in an ambulance. He said he left the engine running because of cold weather. He said the truck would idle “kind of high,” that it had never moved out of its park status automatically. He considered the truck as belonging to him from a practical standpoint, though it had to be in his father’s name on account of Bagwell’s age.

Brenda Lee’s testimony was substantially in accord with that of Bagwell. She had ridden up to the store a short time before Bagwell and defendant arrived. She talked with Bagwell in front of the store and as they were walking into the store, the “truck hit us.” She woke up in the hospital, where she remained for about two weeks, having sustained a fractured pelvis and a fractured hip socket and lacerations to her head. She knew defendant as well as Bagwell and had been on good terms with him. There had never been any ill feelings between them. She knew defendant was in the truck, sitting on the passenger’s side; she never observed him in any other position, but had not paid any particular attention to him.

Tana Harris and Mrs. Jeanette Weeks both observed the accident, and there was little difference, if any, in their testimony. Each said that she saw the truck as it drove up and parked, that defendant remained seated on the passenger’s side until after the accident occurred. Miss Harris was a schoolmate of defendant and had known him about four years. They were of about the same age. She said she heard a loud noise like a motor racing and saw the truck move, going real fast. The truck hit the glass “and the glass was going everywhere when it went into the store.” Defendant ran out “the door” and “started running up that way.” Defendant got out of the truck' on the passenger’s side, “kind of ran around the parking lot and then ran off through the woods.” He was wandering around and after a while ran off “opposite from where he ran to start with.” Defendant was walking up the side of the road when the police arrived. She said:

“Well, when he first left, he ran off to the right of the store and headed through the woods there and came back walking down the highway and walked through the front part of the parking lot there and started heading down the grassy part there up front.”

She said that was when the police arrived and that the grassy spot was about the same distance from the front door of the Jr. Food Store as it was from where she was sitting “to the back of the Courtroom, . maybe a little farther.”

Mrs. Weeks testified that she was sitting in her automobile while her husband was inside the store. She noticed defendant as he sat in the truck after Bagwell had left it and commenced his conversation with Brenda Lee. She said defendant “was turning in the seat, he would look out the window and he would raise his arms back on the back of the truck and then he would lean forward like that and then he would turn. He was not still at all. He was constantly moving.” He was sitting toward the driver’s side, but he was closer to the door on the passenger’s side than he was the driver’s side. She said:

“He came forward, I remember that. And when he did, the truck came forward with him.”

Her testimony continued as follows:

“Q When you say he came forward, did he come forward toward the front of the car or toward the driver’s side or where, which way did he lean?
“A I wouldn’t be able to say. • He just came forward.
“Q Tell what kind of speed or rate that the truck was going? Was anyone in the truck with him?
“A No.
“Q Tell us the speed or rate that the truck went that time?
“A Fast. The truck didn’t take off in a hurry, but was just like you put your foot on the accelerator, it just went. You know. That is the best I can tell you.
“Q Okay. What happened after the truck went forward?
“A You want me to tell what they did?
“Q Describe what you saw.
“A The truck hit them and they went up through the glass with the truck as it went forward and then he got out.
“Q The Defendant got out?
“A Yes, he got out of the truck. Just _I would say a few minutes before he got out. And then he got out and came down alongside the truck toward where everybody had jumped out of their cars and was standing.
“Q When you say a few minutes, do you mean a moment or a minute or quite a bit of time or what?
“A No, it wasn’t quite a bit of time. I would say just a few moments.
“Q Okay. How did he get out of the store?
“A He came out by the truck.
“Q Did he come through the hole in the window or how did he come out?
“A Yes. Where the glass broke, he came through there.
“Q Okay. What did he do then?
“A Just wandering from one to the other, everybody was watching him, nobody would touch him. He was just wandering and he was still with his hands up.
“Q Okay. What did he do then?
“A He went off to my left into the woods.
“Q Did you see Charles Fowler up on that red clay hill bank next to the parking lot when the police got there?
“A No, sir.
“Q You did not?
“A No, sir. I was inside the store.
“Q Do you know_Well, you don’t know that. How long after the police arrived was Charles Fowler back on the scene of that accident.
“A Well, I am not sure. It was after the first medic and the police got there. And he was just out there wandering around.
“Q How long did he wander around out there, Mrs. Weeks? Five, ten minutes?
“A Oh, no. Longer than that, because it took a while for the police to get there and for the fire medics.
“Q Wandered around for over ten minutes, do you think?
“A Yes.
“Q Wandering in the parking lot? For approximately ten minutes?
“A I am confused as to what you mean. Are you saying walking around before he started for the woods?
“Q Yes.
“A Now he didn’t do that for ten minutes, that was maybe five minutes, going from one to the other and then he just took off from the side of the store.
“Q O.K. And then he came back?
“A Yes. If I say yes, it is because somebody told me that he came back. I did not see him.
“Q Did he leave before the fire medics and police got there and go to the woods?
“A Just a minute. Let me think. Yes.
“Q All right. And the next time you saw him was when the police brought him back.
“A Yes”.

The other two witnesses, Nathan Stanton and Dan McGriff, were officers of the Do-than Police Department. Officer Stanton arrived at the scene a minute or two before Officer McGriff. He noticed the pickup sitting partly inside the Jr. Food Store; Dan Bagwell was lying six to eight feet to the left front of the truck and Brenda Lee was lying approximately two feet directly in front of the truck. Brenda Lee was totally unconscious, and Bagwell was “on and off. It wasn’t very coherent.” The witness said that he did not see defendant until approximately five or six minutes after the witness arrived at the scene. He saw defendant for the first time when Officer McGriff left and returned with the defendant.

Officer McGriff testified that he did not see defendant around the scene when the witness first arrived. He said he was in the parking lot trying to find some witnesses when he saw defendant “running down the highway”; that he caught up with the defendant about “fifty or seventy-five yards north of the Jr. Food Store.” Defendant “was running over the hill there, a little hump”; he was running at about “a half run.” He arrested defendant “for public drunk and brought him back to the Jr. Food Store and put him in the police car.” His testimony continued as follows:

“Q Was Charles Foster as a result of that automobile accident in shock?
“A I wouldn’t call it shock, no.
“Q What would you call it?
“A He was, what I call a little shook up.
“Q Dazed?
“A Not really dazed. He was_he was drunk, really.
“Q O.K.
“A Just drunk.”

Title 32 of the Code of Alabama, 1975, effective on the date of the occurrence alleged in the indictment, provides in pertinent part as follows:

“§ 32-10-1. Accidents involving death or personal injuries.
“(a) The driver of any motor vehicle involved in an accident resulting in injury to or the death of any person, or in damage to a motor vehicle or other vehicle which is driven or attended by any person, shall immediately stop such vehicle at the scene of such accident or as close thereto as possible and shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 32-10 — 3. Every such stop shall be made without obstructing traffic more than is necessary.
“(b) The director shall revoke the driver’s license of a person convicted under this section.
“§ 32-10-2. Duty to give information and render aid.
“The driver of any motor vehicle involved in an accident resulting in injury to or the death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving, shall upon request exhibit his driver’s license to the person struck or the driver or occupant of or person attending any motor or other vehicle collided with or damaged and shall render to any person injured in such accident reasonable assistance, including the transportation of, or the making of arrangements for the transportation of such person to a physician or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such transportation is requested by the injured person.”
“§ 32-10-3. Duty upon striking unattended vehicle.
“The driver of any motor vehicle which collides with any motor vehicle or other vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle or shall leave in a conspicuous place in or on the vehicle struck a written notice giving the name and address of the driver and/or the owner of the vehicle doing the striking and a statement of the circumstances thereof.”

At the outset, we are faced with a problem not expressly raised on appeal, but which has been raised before, particularly by Judge Cates in Kennedy v. State, 39 Ala.App. 676, 107 So.2d 913, 925 (1959). It was therein contended by appellant that the complaint in a “hit and run” case which charged the collision happened “upon a highway” was defective in that it should have averred that it was a public highway. The court held that it was not necessary to charge that the “accident” happened on a public highway, that the statute did not expressly state that the accident must be on a highway, public or private, and that the language of the indictment met all the requirements of the language of the statute and was therefore sufficient. However, the court pointedly observed that the forerunner of the particular statute then involved had originally covered an accident resulting in “damage to property” as well as “damage to a vehicle,” but by the time of Echols v. State, 35 Ala.App. 602, 51 So.2d 260, 261, (1951) coverage of “damage to property” had been eliminated by statute. Although obviously considering the question whether the statute covered accidents that did not occur on a public highway as a serious one, the court concluded that a decision thereon was not necessary at that time because of the fact that the evidence showed conclusively that the particular accident did occur on a “public” road. The court in Kennedy, supra, said:

“Act No. 427, supra, covering the offense of leaving the scene of ‘an accident resulting in * * * damage to a vehicle,’ formerly (in Code 1940, T. 36, § 31) covered ‘damage to property,’ Echols v. State, 35 Ala.App. 602, 51 So.2d 260, 261. Whatever may have moved the Legislature, we pretermit any consideration of whether or not the change from the broad to the narrow in dropping ‘property’ for ‘vehicle’ meant that the mischief to be corrected was that found most commonly on public roads. For a while, indeed, the statute does not use the word ‘highway’ at all, yet the prosecution brought in ample proof that, if there was a collision, it occurred on a public road.”

The question raised, but as to which consideration was pretermitted, in Kennedy, whether §§ 32-10-1, 32-10-2 and 32-10-3 are applicable where the driver of the offending vehicle was not traveling upon a public highway, is still unanswered, and is still, we think, worthy of serious consideration. The sound conclusion reached in Collins v. State, Ala.Cr.App., 346 So.2d 43 (1977) that one should be liable under the statutory law in the event of an accident as to which defendant was driving a motor vehicle on a public road and caused or allowed the vehicle to leave the public road for about thirty feet and strike the victim while sitting on a porch off the public road is not opposed to the conclusion, right or wrong, that one is not criminally liable under the particular statutory law if there is no driving of the motor vehicle by the accused upon a public highway.

Most of the courts of other states that have passed upon the question agree with the statements in 7 Am.Jur.2d 724, as follows:

“Where a statute establishing a criminal offense in connection with the operation of a motor vehicle makes no reference to the offense occurring on a public highway, it is generally held to apply throughout the state, including private ways and premises. . . . Similarly, where a statute making it an offense not to stop and run to aid after an accident does not specify that the hit-and-run offense should occur on public highways, it applies to accidents occurring on private premises, or off a public highway. On the other hand, where a statute establishing an offense in connection with the operation of a motor vehicle, such as driving while intoxicated, or speeding, or reckless driving, or failure to stop after an accident, is expressly made applicable to the operation of motor vehicles on public highways, it does not apply to the operation of motor vehicles on private ways or premises.”

The statements just quoted are strongly buttressed by a large number of authorities, including Salazar v. State, 145 Tex.Cr.R. 478, 169 S.W.2d 169 (1943); Meadows v. State, 211 Miss. 557, 52 So.2d 289 (1951); State v. Gallagher, 102 N.H. 335, 156 A.2d 765 (1959); State v. Tuckus, 4 Conn.Cir. 495, 236 A.2d 104 (1967); State v. Valeriani, 101 N.J.Super. 396, 244 A.2d 510 (1968); Laughlin v. Tulsa, Okl.Crim., 492 P.2d 1131 (1972); People v. Helm, 27 Ill.App.3d 675, 327 N.E.2d 544 (1975). Most of the cases, however, make it clear that the statutes involved related expressly to accidents where persons were injured or property was damages, and none of them answers the question raised in Kennedy, supra.

In addition, to the suggestion that the substitution by the Legislature of the word “vehicle” for “property” may have evinced a legislative intent to limit the application of the statute to accidents on “public ways,” we think the suggestion should be made that the statutory law on the subject at the present time and at the time of the alleged offense includes a provision of Acts 1943, No. 558, T. 548, § 5; now, Code 1975, § 32-10-4, as follows:

“The driver of any motor vehicle involved in an accident resulting only in damages to fixtures legally upon or adjacent to a highway shall take reasonable steps to locate and notify the owner of persons in charge of such property of such fact and of his name and address and of the registration number of the vehicle he is driving and shall upon request exhibit his driver’s license and shall make report of such accident when and as required in § 32-10 — 5. (Acts 1943, No. 558, p. 548, § 5).”

It is to be seen that there is nothing in the statutory law that permits the inclusion of an accident that involves damage to any property, but does not involve injury to any person, unless the property is a vehicle or unless it is a fixture legally upon or adjacent to a highway.

It is also to be noted that by an amenda-tory act since Kennedy v. State, supra, Acts 1969, No. 272, p. 603, as now found in Code 1975, § 32-10-8, as to “Uniform Accident Report Forms Required” under the chapter in which the law is codified (Chapter 10, Motor Vehicle Accidents), the required written accident report to be made by persons involved in accidents and by investigating officers shall include detailed information including “Highway design and maintenance (including lighting, marking and road surface).”

The word “highway” as above noted, to be found in § 32-10-4 and § 32-10-8 of the Code 1975, is defined in § 32-1 — 1 as follows:

“(12) HIGHWAY. Every way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel. The term ‘highway’ shall include the full width of the right-of-way of any public road, street, avenue, alley or boulevard, bridge, viaduct or trestle, and the approaches thereto, within the limits of the state of Alabama. The term ‘highway’ shall not be deemed to include a roadway or driveway upon grounds owned by private persons.”

We doubt that the legislative intent is to be determined, as some courts have apparently done, by the similarity to travel on highways of vehicle traveling in large shopping center areas, providing accommodation for the daily movement of thousands of cars by members of the general public patronizing the centers. The same reasoning could be applied to reckless driving and driving while intoxicated, as well as many other crimes, that are expressly limited to “public” ways or roads. Code 1975, § 32-5-50, and § 32-5-170.

We thoroughly agree with what was said in State v. Gallagher, supra, 102 N.H. 335, 156 A.2d 765, 768, 77 A.L.R.2d 1167, 1171, as follows:

“The increased use of automobile under changing conditions points up the desirability of legislative re-examination of the sporadically amended provisions of the motor vehicle law so that inconsistencies may be removed in order to best protect public interest.”

If the Legislature does not answer the question as suggested in the near future, it will doubtless be necessary for the courts to do so. Nevertheless, as the point has not been raised here and we do not have the benefit of argument thereon by the parties, and as, as will be noted, a solution of the question is not necessary to an appropriate disposition of the appeal in this case, we will continue for the time being to preter-mit a determination of the question.

The main, if not the sole, line of contention between the parties on appeal is as to whether defendant was a “driver” of the motor vehicle. Appellant zealously contends that he was not, and appellee with equal zeal contends that he was. Each relies upon the definition of “driver” as found in Code of Alabama 1975, § 32-1-1(7) as “Every person who drives or is in actual physical control of a vehicle.”

Our attention has not been called to a case that is clearly dispositive of the question. We have noted some cases in which somewhat similar circumstances were involved and the court reached a conclusion whether the one charged with being the driver was actually a driver.

Most of the cases have turned on the interpretation by the courts of the particular statutes involved. The most recent case, which received comprehensive treatment, is State v. Graves, S.C., 237 S.E.2d 584, 588 (1977). The prosecution was for driving a motor vehicle while intoxicated, but the statutory definition of a driver was, as statutorily stated in Alabama: “Every person who drives or is in actual physical control of a vehicle.” By a majority opinion of three to two, the court held that defendant’s conduct in occupying an automobile with the engine running and the transmission in gear, which motor vehicle began to move when defendant got out of it on request of a patrolman, did not constitute “driving” within the meaning of the statute proscribing driving under the influence of intoxicants, although accused was “in actual physical control” and “operating” the motor vehicle while intoxicated. Many authorities are therein cited in which a distinction between a “driver” and an “operator” of a motor vehicle is discussed. There .was a strong dissent in Graves, supra.

The conclusions that have been reached in close cases under varying statutes have been interesting and enlightening, but they have left unanswered many questions that may arise in somewhat similar, but uniden-tical, situations. In our conclusion reached here on the point, we deliberately refrain from indicating what we might hold in circumstances that are not identical with those involved in instant case.

As we see it, the alternative, “is in actual physical control of a vehicle,” in the definition of a driver as a “person who drives” does not aid in solving the question. It is reasonably certain that the action of defendant, as distinguished from the automatic action of the truck, caused the truck to move the distance of approximately twice the length of the truck. We hold that the evidence to the effect that the truck would not have moved forward without a shift by defendant of the gear lever from park, through reverse, through neutral, to drive and that the increased tempo of the motor indicating that defendant had placed his foot on the accelerator is a sufficient basis for a finding that defendant, intoxicated, though he was, voluntarily moved the truck, voluntarily became the driver, though for a short distance only, of the motor vehicle. We do not here hold, and we expressly leave for future consideration whether inadvertent action by defendant causing such movement of the truck would have put him in the category of a driver of it.

We now come to what we consider is a barrier to an affirmance of appellant’s conviction and sentence.

It is to be noted from the language of Count II of the indictment as compared with §§ 32-10-1 and 32-10-2 of the Code of 1975 that the indictment contains a charge that defendant violated a provision of § 32-10-1 requiring the driver to “immediately stop such vehicle at the scene of such accident” but does not include a charge, constituting a violation of a provision of the same section, that the driver “shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of § 32-10-3.” Except for the language in the indictment that defendant “did fail to immediately stop such vehicle at the scene of such accident” the indictment charges a violation of § 32-10-2 only, in which section there is no reference to returning to or remaining at “the scene of the accident.”

The averment of Count II of the indictment that defendant “did fail to immediately stop such vehicle at the scene of such accident” is conclusively refuted by the evidence.

As to the charge in Count II of the indictment that defendant “did fail to give his name and address, and the registration license number of his vehicle,” the evidence lacks substance. His activity is vaguely described by two witnesses as “wandering” around or coming down “along side the truck toward where everybody had jumped out of their cars and was standing . wandering from one to the other . just wandering and he was still with his hands up . walking around before he started for the woods . . . maybe five minutes, going from one to the other and then he just took off from the side of the store.” He could hardly have given “the registration number of the vehicle” other than by looking at the tag at the rear of the truck, which doubtless was exposed to the view of everybody in the parking lot, including the police officers as they arrived. He apparently was well known by persons at the parking lot. The owner of the vehicle and Brenda Lee, the two injured persons, both knew him well and knew that he lived in Dothan. The evidence also shows that Brenda Lee was with several young people whom she knew at the time that Dan Bagwell and defendant arrived at the Jr. Food Store. There is nothing to indicate that defendant ever failed to give his name and address, that he was ever asked for his name and address, or that his name and address were not a matter of common knowledge by those at the scene of the accident at the time it occurred and for several minutes thereafter.

Any conviction of defendant for the alleged failure “to render to Brenda J. Lee, the person injured in such accident, such reasonable assistance, including the carrying such injured person to a physician or surgeon for medical or surgical treatment” would be in ignoration of the realities of the situation. The evidence shows that defendant was highly intoxicated. It would have been entirely inappropriate, and doubtless would have been prevented by others, for him to have attempted to render assistance, including the carrying of Brenda Lee to a physician or surgeon for medical or surgical treatment. Brenda Lee was inside the store about two feet in front of the truck at the time defendant got out of the truck, came through the broken plate glass window from the parking lot in front of the store. There is no evidence as to his actual physical condition other than that he was highly intoxicated. But this of itself disqualified him as one to take over the rendition of assistance to Brenda Lee.

The verdict finding defendant guilty of “Leaving the Scene of an Accident as charged in the Indictment” could probably be sustained if there had been a charge in the indictment that he left or did not “remain at the scene of the accident” as prescribed in § 32-10-1. The language of the verdict does not constitute a mere mistake in the form of the verdict. It is clear that the finding of the jury was in accordance with the main insistence of the State that defendant left or did not remain at the scene of the accident, that though he did not leave it a greater distance than approximately fifty or seventy-five yards, he ran from the scene and was pursued and brought back to the scene by Officer McGriff.

Notwithstanding the fact that there was substantial evidence that defendant was guilty of a crime not charged in the indictment, there was no substantial evidence that he was guilty of any crime charged in Count II of the indictment, the only count to which the verdict could conceivably be referable. A scintilla, even if any, is not enough. Irrespective of the confusion that may have existed at one time, the principle is firmly established in Alabama that the scintilla rule, applicable in civil cases, cannot be so applied to criminal cases as to justify the submission of a criminal case to the jury if and when the evidence of guilt consists of a mere scintilla. Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933); Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944); Clark v. State, 257 Ala. 95, 57 So.2d 384 (1952); Massengale v. State, 36 Ala.App. 195, 54 So.2d 85 (1951); White v. State, 37 Ala.App. 424, 69 So.2d 874 (1954); Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85 (1973); Smith v. State, Ala.Cr.App., 337 So.2d 53 (1976).

For the error in overruling defendant’s motion to exclude the evidence and in refusing defendant’s requested affirmative charge as to Count II of the indictment,” the judgment must be reversed and the cause remanded.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is reversed and the cause remanded.

REVERSED AND REMANDED.

HARRIS, P. J., and TYSON, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., concurs in result.

      . The Supreme Court in Grimmett suggests the possibility that the previous confusion on the subject was to some extent attributable to the failure to distinguish between a scintilla of evidence of innocence and a scintilla of evidence of guilt, that though the one would of itself disentitle the prosecution to an affirmative charge in its favor, the other never justifies the trial court in a refusal of a requested written charge in favor of defendant.


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-186.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: HOLMES, Judge.

text:
    Brenda Smith BAYLISS v. John William BAYLISS.
    Civ. 1640.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.
    J. A. Hornsby, Gadsden, for appellant.
    Bert Lindbergh, Birmingham, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals contending the trial court erred to reversal in refusing to grant her motion for a new trial. We find no merit in this contention and affirm.

As we view the wife’s motion for a new trial, it is bottomed on the premise that since there was no court reporter present at the trial of the divorce, she cannot obtain effective appellate review unless a new trial, where a court reporter would be present, is granted. Hence, the trial court erred in refusing to grant the motion.

As seen from the above, the trial court denied the wife’s motion.

The wife in essence, as indicated above, argues in brief that since no court reporter was present, “due process of law” requires that the trial court grant a new trial. However, we find nothing in the record, particularly in the wife’s motion for a new trial, that reveals any request for a court reporter was ever made. In fact, there is nothing in the record before this court that any party to the original divorce proceeding desired a court reporter. Put another way, for ought that appears, the parties did not desire the service of a court reporter.

Under these circumstances, this court can hardly say that the trial court erred to reversal in refusing to grant the wife’s motion.

The granting or refusing of a motion for new trial rests largely in the discretion of the trial court; exercise of that discretion carries with it a presumption of correctness and should not be disturbed at the appellate level unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Clearly, in this instance, as seen from the above, we cannot say a legal right was abused nor does the record reveal that the trial court was plainly and palpably in error. See 2A Ala. Digest Appeal & Error <§=>933(1).

The above principle of law is equally applicable, in this instance, to any contention regarding additional evidence that could be presented at a new trial.

Any argument as to the merits of the appeal is answered by the following quote found in Berggren v. Berggren, 52 Ala.App. 118, 290 So.2d 178 (1973):

“It has always been the rule that evidence heard orally by the court, but not appearing of record on appeal, is presumed to justify the decision of the court on the issues of fact presented. (Citations omitted.)” 52 Ala. at 119, 290 So.2d at 179.

The case is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Howard DUNNIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 53883.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Rehearing Denied Dec. 20, 1978.
    Robert E. Jagger, Public Defender, and Stuart J. Freeman, Asst. Public Defender, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The order of the trial judge upholding the constitutional validity of Section 812.014, Florida Statutes (1977), is affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978).

Appellant also raises on appeal two additional points regarding the asserted unconstitutionality of the theft statutes which were not presented in State v. Allen, supra. He contends that the definitional provisions of Section 812.012(2)(d) are impermissibly vague and uncertain, and that they represent an improper delegation of legislative power in violation of Article II, Section 3 of the Florida Constitution. Section 812.012(2) (d) provides:

“(2) ‘Obtains or uses’ means any manner of:
* * * * * *
(d)l. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretense, fraud, or deception; [or]
2. Other conduct similar in nature.”

As to the first point, appellant specifically argues that some of the terms in subsection (2)(d)l have multiple and inconsistent meanings, and that the phrase “other conduct similar in nature,” which we ruled excessively vague in the context of another law in Driver v. Van Cott, 257 So.2d 541 (Fla.1971), is too indefinite to apply because the types of conduct to which it refers are not really similar. The second point, predicated on the asserted vagueness of the same phrase, is that police, prosecutors, and judges are vested with unbridled discretion to determine the kind of conduct that will be considered “similar in nature.” We disagree.

Each of the terms listed in subsection (2)(d)l has a plain legal meaning that is readily ascertainable from the common law and decisional law of this state. The fact that some words have two or more meanings does not necessarily render them unconstitutionally vague, since it is manifestly clear to a person of ordinary intelligence what was intended by the legislature’s use of each term in the context of the theft statutes. As for the prohibition against “other conduct similar in nature,” we believe that the principle of ejusdem generis may be properly employed to sustain its use in this provision. Unlike the situation presented in Driver v. Van Cott, supra, where the phrase was used in reference to diverse and unrelated classes of conduct, the present statute encompasses criminal acts which are quite similar to the extent that they all have as their object the unlawful deprivation of property belonging to another. Because these terms are sufficiently definite and similar, it cannot be said that the legislature has failed to provide adequate standards to guide prosecuto-rial or judicial discretion in the enforcement of the law.

It follows that the trial judge ruled correctly in upholding the constitutionality of Sections 812.012 and 812.014, and the order denying the motion to dismiss is accordingly affirmed. This case is remanded to the County Court for Pinellas County for proceedings consistent herewith.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Ira Gerald ODUM and Jon Paul Snoddy, Appellees.
    No. 54500.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, and T. Edward Austin, State’s Atty., and Robert P. Gardner, Jr., Asst. State’s Atty., Jacksonville, for appellant.
    Joseph S. Farley, Jr. and Stephen J. Weinbaum, Jacksonville, for appellees.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    Finn WORTHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 55135.
    Supreme Court of Florida.
    Oct. 19, 1978.

      Jack 0. Johnson, Public Defender and Paul C. Helm, Asst. Public Defender, Tenth Judicial Circuit, Bartow, and Robert E. Jagger, Public Defender, Sixth Judicial Circuit, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty., Clearwater, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Jimmy L. RIDLEY, Appellee.
    No. 54456.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty., and A. R. Mander, III, Asst. State’s Atty., Dade City, for appellant.
    William G. Sestak, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Nathan GILES, Appellee.
    No. 54457.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and A. R. Mander, III, Asst. State’s Atty., Dade City, for appellant.
    Glen E. Greenfelder, Dade City, for ap-pellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Alfred C. DANELLA, Appellee.
    No. 54458.
    Supreme Court of Florida.
    Oct. 23, 1978.
    James T. Russell, State’s Atty. and A. R. Mander, III, Asst. State’s Atty., Dade City, for appellant.
    William G. Sestak, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Alten, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Richard D. MOSLEY, Appellee.
    No. 54489.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty., Dade City, for appellant.
    William G. Sestak, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. David L. COPPOCK, Appellee.
    No. 54607.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and Phillip Van Allen, Asst. State’s Atty., Dade City, for appellant.
    James C. Simmons, Zephyrhills, for appel-lee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Anthony S. HOLLAND, Appellee.
    No. 54612.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and Phillip' Van Allen, Asst. State’s Atty., Dade City, for appellant.
    Daniel Andrew Moriarty and Jack Douglas Hoogewind, Asst. Public Defenders, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Irvin George RILEY, Appellee.
    No. 54615.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and Phillip Van Allen, Asst. State’s Atty., Dade City, for appellant.
    James C. Simmons, Zephyrhills, for appel-lee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Thomas W. FOUTS, Appellee.
    No. 54711.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and Phillip Van Allen, Asst. State’s Atty., Dade City, for appellant.
    Jack Douglas Hoogewind, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Clayton ROBERTS, Appellee.
    No. 54712.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and Phillip Van Allen, Asst. State’s Atty., Dade City, for appellant.
    Ronald J. Hoffer, Zephyrhills, for appel-lee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Dennis GWYN, Appellee.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Janies T. Russell, State’s Atty. and Phillip Van Allen, Asst. State’s Atty., Dade City, for appellant.
    Jack D. Hoogewind, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Tommy L. HILL, Appellee.
    No. 54801.
    Supreme Court of Florida.
    Oct. 23, 1978.
    James T. Russell, State’s Atty. and Phillip Van Allen, Asst. State’s Atty., Dade City, for appellant.
    William G. Sestak, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Victor LEWIS, Appellee.
    No. 53745.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen. and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, and Michael J. Satz, State’s Atty. and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

In this cause the state appeals from an order of the trial court dismissing the information against appellee on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional. The trial judge ruled the statute invalid on the grounds that subsections (l)(b) and (2)(b) are “so indefinite and overbroad that inherently innocent conduct is prohibited, in violation of due process of law,” and that they violate the right to acquire, possess, and protect property, and the right to contract. An additional ground raised by appellee in his motion to dismiss but never expressly ruled upon by the trial judge is that Section 812.014 permits selective prosecution.

We have recently disposed of the contention that Section 812.014 is unconstitutionally vague or overbroad by holding that a conviction under the statute requires proof of specific criminal intent. State v. Allen, 362 So.2d 10 (Fla.1978). While that case involved a charge of larceny, the reasoning there employed is equally applicable to the offense of receiving stolen property, as now encompassed by the omnibus theft statute. We have similarly rejected the suggestion that Section 812.014 improperly delegates excessive discretion to law enforcement officials, thereby allowing selective prosecution. Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

The only points raised by appellee in defense of the trial court’s ruling that have not previously been addressed by this Court are that Section 812.014 infringes upon the right to acquire, possess, and protect property guaranteed by Article I, Section 2 of the Florida Constitution, and that it impairs the right to contract as guaranteed by the Florida and United States Constitutions. Inasmuch as these related attacks are grounded on the premise that the theft statute penalizes innocent conduct — a construction negated by our ruling in Allen, supra — they are without merit.

The order entered below, dismissing the information against the appellee on the ground that Section 812.014 is unconstitutional, is reversed, and this case is remanded to the trial court for further proceedings not inconsistent with this opinion.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Paul ARBE, Appellee.
    No. 53858.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen. and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, and Michael J. Satz, State’s Atty. and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Lewis, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Chris HILKER, Appellee.
    No. 53859.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen. and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, and Michael J. Satz, State’s Atty. and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Lewis, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Gary SMITH, Appellee.
    No. 53862.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen. and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, and Michael J. Satz, State’s Atty. and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. State v. Lewis, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Monty Ray BELGRAVE and Stephen Roger Smith, Appellees.
    No. 53870.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., and Janet Reno, State’s Atty. and Ira Loewy, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender, for appellees.
   PER CURIAM.

This cause is before us on appeal by the state from a trial court order granting a motion to dismiss the charges against appel-lees. The order was expressly grounded upon the trial judge’s finding that Section 812.014, Florida Statutes (1977), “is unconstitutionally overbroad in scope in that it does not require proof of criminal intent.” We have recently rejected the contention that Section 812.014 is unconstitutionally vague or overbroad. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

An additional point raised by appellees in their motion to dismiss that was not expressly ruled upon by the trial judge and has not previously been addressed by this Court is that Section 812.014 violates the constitutional prohibition against cruel and unusual punishment. Inasmuch as this argument rests entirely upon the premise that the statute is fatally overbroad because it penalizes innocent conduct — an assertion put to rest by our holding in Allen, supra, that Section 812.014 includes the element of specific criminal intent — it is without merit.

The order entered below, dismissing the informations against appellees on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed, and this case is remanded to the trial court for further proceedings not inconsistent with this opinion.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Edward James LEROY, Appellee.
    No. 53517.
    Supreme Court of Florida.
    Oct. 19, 1978.

      Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State’s Atty. and John P. Durant, Asst. State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. See State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Herbert Aaron WRIGHT, Appellee.
    No. 53943.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., and Janet Reno, State’s Atty. and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. David Lee HUNTER, Appellee.
    No. 54516.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Robert L. Shevin, Atty. Gen. and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, and Joel Michael Weissman, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Barry M. Cohen, Asst. Public Defenders, West Palm Beach; for appellee.
   PER CURIAM.

Reversed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. L. T. HARE, Appellee.
    No. 53954.
    Supreme Court of Florida.
    Oct. 19, 1978.

      Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Andrea R. Bateman, Asst. State’s Atty., Bartow, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    Martini THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 54601.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender, Stuart, and Stephen L. Kramer, Pamela J. Burch and Bruce M. Wilkinson, Asst. Public Defenders, Nineteenth Judicial Circuit, Fort Pierce, and Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Jerry Lefebvre, Asst. State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    Jimmie Forest THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 54602.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender, and Stephen L. Kramer, Asst. Public Defender, Fort Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., and Robert E. Stone, State’s Atty., Vero Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    Steven McINNIS, Appellant, v. STATE of Florida, Appellee.
    No. 54779.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender and P. Paula Grossman and Steven G. Brady, Asst. Public Defenders, Nineteenth Judicial Circuit, Fort Pierce, and Richard L. Jorand-by, Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. McCain, Asst. State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); and Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    In the Interest of Darnell KING, a child.
    No. 54825.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender, Stuart, and Burton C. Conner, Vero Beach, P. Paula Grossman and Bruce M. Wilkinson, Asst. Public Defenders, Fort Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., and Roger G. Orr, Asst. State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    In the Interest of James E. JORDAN, a child.
    No. 54826.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender and Burton C. Conner, Stephen L. Kramer and Steven G. Brady, Asst. Public Defenders, Nineteenth Judicial Circuit, Fort Pierce, and Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., and Roger G. Orr, Asst. State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); Dunnigan v. State 364 So.2d 1217 (Fla.1978).

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


text:
    In the Interest of Renaldo SANTOS, a child.
    No. 54827.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender, Stuart, and Burton C. Conner, Vero Beach, Steven G. Brady and P. Paula Grossman, Asst. Public Defenders, Fort Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., and Roger G. Orr, Asst. State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    In the Interest of Morris McARTHUR, a child.
    No. 54828.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender, Stuart, and Burton C. Conner, Asst. Public Defender, Vero Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Roger G. Orr, Asst. State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    In the Interest of Dana ROTH, a child.
    No. 54829.
    Supreme Court of Florida.
    Oct. 19, 1978.
    Elton H. Schwarz, Public Defender, Stuart, and P. Paula Grossman, Fort Pierce and Burton C. Conner, Asst. Public Defenders, Nineteenth Judicial Circuit, Vero Beach, and Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Roger G. Orr, Asst. State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

Affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Rex Clifton WALKER, Appellee.
    No. 53955.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Andrea R. Bateman, Asst. State’s Atty., Bartow, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Lucias SEALEY, Appellee.
    No. 54011.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Andrea R. Bateman, Asst. State’s Atty., Bartow, for appellant.
    Jack 0. Johnson, Public Defender and P. Douglas Brinkmeyer and Jon J. Hall, Asst. Public Defenders, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Sandra Kay EDWARDS, Appellee.
    No. 54054.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James G. Harrell, Asst. State’s Atty., Bar-tow, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. George T. FRUEDENBURG, Appellee.
    No. 54102.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Kelley W. Collier, Asst. State’s Atty., Bar-tow, for appellant.
    Jack 0. Johnson, Public Defender and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Roderick Joseph GABRIEL, Appellee.
    No. 54103.
    Supreme Court of Florida.
    Oct. 23, 1978.

      Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Kelley W. Collier, Asst. State’s Atty., Bar-tow, for appellant.
    Jack 0. Johnson, Public Defender and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellee. .
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Robert D. KENNAN, Appellee.
    No. 54104.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Kelley W. Collier, Asst. State’s Atty., Bar-tow, for appellant.
    J. 0. Johnson, Public Defender and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Harold Clinton KNIGHT, Appellee.
    No. 54107.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and J. Lancaster Havice, Asst. State’s Atty., Bar-tow, for appellant.
    Dan P. Brawley, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. John Henry THOMPSON, Appellee.
    No. 54131.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and C. Michael Fischer, Asst. State’s Atty., Bar-tow, for appellant.
    J. 0. Johnson, Public Defender and Jeffrey A. Miller, Asst. Public Defender, Bar-tow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Marion Leon BROADNAX, Appellee.
    No. 54167.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and C. Michael Fischer, Asst. State’s Atty., Bar-tow, for appellant.
    J. 0. Johnson, Public Defender and Thomas A. Pobjecky, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. James Lee FRAZIER, III, Appellee.
    No. 54168.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and C. Michael Fischer, Asst. State’s Atty., Bar-tow, for appellant.
    Jack 0. Johnson, Public Defender and Jon J. Hall, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10, (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).


text:
    STATE of Florida, Appellant, v. James Martin PARRAMORE, Appellee.
    No. 54169.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Kelley W. Collier, Asst. State’s Atty., Bartow, for appellant.
    Jack 0. Johnson, Public Defender and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Roswald Lynn GIBSON, Appellee.
    No. 54251.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Andrea R. Bateman, Asst. State’s Atty., Bartow, for appellant.
    John R. Howes of King, Kaylor & Thorn-hill, P. A., Winter Haven, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Arthur Henry CARSON, Appellee.
    No. 54655.
    Supreme Court of Florida.
    Oct. 23, 1978.

      Robert L. Shevin, Atty. Gen., and J. Lancaster Havice, Asst. State’s Atty., Bartow, for appellant.
    John C. Wilkins, III, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Archie Lee SMITH, James L. Paige, Wayne P. Woodham, James R. Bigford, Shirley E. Henry, Robert D. Cradduck, Timothy A. Summerlin, Dennis M. Ingram and Don Aaron Thomas, Appellees.
    No. 54710.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Anthony T. Young, Asst. State’s Atty., Okeechobee, for appellant.
    Elton H. Schwarz, Public Defender and Steven G. Brady, Asst. Public Defender, Fort Pierce, for appellees.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Richard Lamar JOHNSON, Appellee.
    No. 54778.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Andrea R. Bateman, Asst. State’s Atty., Bartow, for appellant.
    Gregory M. Ruster of Weeks & Ruster, P. A., Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Linda Grace HAYGOOD and Billy Moore, Appellees.
    No. 55043.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen., and Hardy 0. Pickard, Asst. State’s Atty., Bartow, for appellant.
    Allen R. Smith, Winter Haven, and John R. Howes, Winter Haven, for appellees.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Joseph Lemar BROWN, Herbert Paul Fountain, a/k/a Bud Fountain, Arthur Calvin Lee, Jimmy Watson, and Edward Cecere, Appellees.
    No. 54899.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen., and Hardy 0. Pickard, Asst. State’s Atty., Bartow, for appellant.
    Richard D. Mars, Lakeland, Jack T. Edmund, Bartow, and Dale Gardner Jacobs, Lakeland, for appellees.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Joseph Lemar BROWN and Reginald Foggie, Appellees.
    No. 55052.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen., and Hardy 0. Pickard, Asst. State’s Atty., Bartow, for appellant.
    Richard D. Mars, Lakeland, for appellees.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Joseph Lemar BROWN, Appellee.
    No. 55077.
    Supreme Court of Florida.
    Oct. 23, 1978.
    Robert L. Shevin, Atty. Gen., and Hardy 0. Pickard, Asst. State’s Atty., Bartow, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


author: McCORD, Chief Judge.

text:
    James Clifton ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. EE-340.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1977.
    Rehearing Denied Dec. 29, 1978.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

Appellant was convicted of burglary and appeals the judgment and sentence. Among other things, he contends that the trial court erred in giving Standard Jury Instruction 2.21, the jury deadlock charge, when there was no indication that the jury was deadlocked. This occurred when the jury, after having retired to consider the verdict, returned to the courtroom with a question and, without indication from the jury that they were deadlocked, the court gave the deadlock instruction. No objection was made by appellant. While we consider that the giving of the instruction in the absence of a deadlocked jury was error, such was not fundamental error, and the failure to object waived any objection appellant might have had to the instruction.

Appellant in addition contends that fundamental error occurred when the trial court denied appellant’s motion for a mistrial when a state witness commented on appellant’s right to remain silent upon his interrogation at the time of arrest. We disagree. Prior to trial, appellant gave written notice of intent to claim alibi and at trial, he testified that he was in Marianna shopping with his wife and sister-in-law at the time witnesses allegedly identified him at the E-Z Pawn Shop in Panama City where he allegedly pawned three guns which had been stolen from a mobile home two days previously. Witnesses testified that he produced his driver’s license for identification at the pawn shop. Appellant testified that upon his return from Marian-na, he found that his house had been burglarized. He further testified that he had mislaid his wallet and driver’s license about a week previously. He was asked on cross-examination by the state if he ever told the arresting officer that he was in Marianna with his wife and sister-in-law shopping, and he responded that he did not remember making a statement to the arresting officer that day. He was then asked:

“Q. Have you ever told anybody prior to today in this courtroom or your lawyer you were in Marianna shopping with your wife and sister-in-law?
A. No one except my lawyer.
Q. Your lawyer is the only person you told that?
A. Yes, I reckon he is.
Q. When did you first tell him that?
A. The first time I had an appointment with my lawyer.”

No objection was made to the foregoing questions and answers on cross-examination of appellant. Thereafter, the arresting officer testified on direct examination by the state that upon arrest he advised appellant of his rights and then asked him several questions about his driver’s license which appellant answered. The officer was then asked:

“Q. Did he in your dealings or conversations with him, did he ever indicate to you that he was in Marianna, Florida, at the date and time this alleged burglary occurred?
A. Not that I recall.”

Appellant’s counsel then objected and moved for a mistrial. The motion was denied, but the court told the assistant state attorney that he had gone far enough and no further questions were asked along this line.

Appellant having not objected to the above questions asked him on cross-examination and having freely answered them, such did not constitute reversible error. See Clark v. State, 336 So.2d 468 (Fla. 2 DCA 1976), presently pending on certiorari in the Supreme Court, and Gillian v. State, Fla.App., 364 So.2d 729 (1977) (presently pending on petition for rehearing and being held in abeyance pending the ruling of the Supreme Court in Clark). The subsequent question and answer of the arresting officer which was objected to after the answer had been given merely corroborated appellant’s previous testimony given without objection. We, therefore, do not find the court’s denial of the motion for mistrial to be reversible error.

We have considered the other questions raised by appellant and find them to be without merit.

Affirmed.

BOYER and MILLS, JJ., concur.


text:
    Robert J. ROGERS, M.D., Petitioner, v. STATE BOARD OF MEDICAL EXAMINERS of Florida, Respondent.
    No. EE-454.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1978.
    Rehearing Denied Jan. 31, 1979.

      Andrew A. Graham, of Law Offices of Charles Holcomb, Cocoa, for petitioner.
    Michael Schwartz, of Slepin & Schwartz, Tallahassee, for respondent.
   ON MOTION TO DISMISS

On February 7, 1977 the petitioner filed directions to the lower tribunal (respondent) instructing the respondent to include and certify as the record-on-appeal all papers, exhibits and documents filed in the proceeding giving rise to this controversy together with the transcript of the proceedings. The directions requested copies to each party. The respondent complied with the petitioner’s directions and submitted a bill in the sum of $493.60 (See F.S. 120.-57(l)(b)(6)). Upon petitioner failing to pay for the preparation of the record on appeal, which was prepared in accordance with petitioner’s directions, respondent moved for dismissal. Respondent filed a reply to the motion to dismiss, attaching thereto a check drawn on the trust account of petitioner’s attorney, payable to respondent, in the sum of $493.60. In that reply, however, petitioner takes the position that he is not required to pay for the preparation of the record on appeal.

F.S. 120.57(l)(b)(6) requires an agency to accurately and completely preserve all testimony in a proceeding and, on request of any party, to make a full or partial transcript available “at no more than actual cost”.

F.S. 120.68(2) requires, inter alia, that “Review proceedings shall be conducted in accordance with the Florida appellate rules.”

Although we concede that Rule 9.200 Fla.R.App.P. is less than clear on the subject, we construe that Rule as requiring, and we so hold, that the initial cost of preparation of the record on appeal is placed upon the designating party, sub ju-dice the petitioner.

Rule 9.400(a) Fla.R.App.P. relates to the taxation of costs, to the prevailing party after the case is concluded. That rule is not applicable until the prevailing party can be determined. It is not, therefore, applicable at this juncture of the case sub judice.

The check above mentioned which was attached to petitioner’s reply to respondent’s motion to dismiss has no place in this court.

Accordingly, it is

ORDERED THAT:

1. Because of the ambiguity of Rule 9.200(b)(1) Fla.R.App.P. in that it specifically mentions only the costs of “transcription”, we deny respondent’s motion to dismiss.

2. The Clerk of this Court is directed to return to petitioner the check which he attached to his reply.

3. Petitioner being the designating party, he shall forthwith pay respondent for the preparation of the record on appeal.

4. This cause shall proceed in accordance with the applicable rules.

By Order of the Court dated this 13th day of October, A.D., 1978. Acting Chief Judge Tyrie A. Boyer, Judge Woodrow M. Melvin and Judge E. R. Mills, Jr.


author: RYDER, Judge.

text:
    Joseph A. McDONALD, Petitioner, v. STATE of Florida, Respondent.
    No. 77-1938.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1978.
    Rehearing Denied Nov. 30, 1978.
    Martin Errol Rice and W. F. Davenport, Jr., of Harris, Clark, Green, Piper & Davenport, St. Petersburg, for petitioner.
    James T. Russell, State’s Atty., and Douglas E. Crow, Asst. State’s Atty., St. Petersburg, for respondent.
   RYDER, Judge.

On April 20, 1977 an information was filed charging petitioner with the offenses of driving while under the influence of alcohol and unlawful blood alcohol. These charges stem from an accident on the morning of Saturday, March 26,1977, when petitioner’s car struck a St. Petersburg city bus. While trying to close a wound on petitioner’s lip, which later required fifteen stitches, a paramedic detected a slight odor of alcoholic beverages on the petitioner’s breath. The paramedic suggested to a St. Petersburg police officer that a blood sample be taken from the petitioner. Based on this request, and his own observation of the petitioner’s imbalance and odor of alcoholic beverages on the petitioner’s breath, the police officer placed petitioner under arrest and asked him to take a “breath test” or perform the “field sobriety test”. The petitioner refused to take the tests and requested his own physician and attorney.

As a result of the petitioner’s refusal, he was taken to the Bayfront Medical Center where a blood sample was taken from petitioner against his will and without his consent, at a time wherein he was not incapacitated and was fully conscious and capable of granting or refusing permission for that procedure.

Upon being charged as aforesaid, petitioner filed a motion to suppress any testimony regarding the taking of a blood sample, testimony relating to the test of that blood sample, and the results of said test. Petitioner alleged that the entire procedure was accomplished in violation of Section 322.261, Florida Statutes (1975). The motion was heard on May 5,1977 in the county court. No testimony was taken, but the facts as summarized above were stipulated to by and between the State and petitioner. The county court granted the motion to suppress, ruling that a blood alcohol test could not be taken without the consent of a suspected drunk driver unless he was either incapacitated or unconscious.

The State took an interlocutory appeal to the circuit court. The suppression order was reversed in a written opinion stating that the law is that in driving while intoxicated cases, the driver is subject to the taking of blood samples even without his consent and the driver has no right to refuse. Petition for rehearing was denied and this timely petition for writ of certiora-ri was filed.

The petitioner brings to our attention three points. However, in view of our decision below, it will be necessary to discuss only one. That point is whether Section 322.261, Florida Statutes (1975), prohibits authorities from taking a blood sample from a person suspected of driving while under the influence of alcohol when that person expressly objected to the taking thereof. We answer that it does, grant certiorari, reverse the decision of the circuit court below and remand this cause for further proceedings consistent with this opinion.

This cause was argued before this court on May 1, 1978. We withheld our opinion as an almost identical case, State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977) was, at that time, before the Supreme Court of Florida for its consideration. The Supreme Court of Florida has now acted upon the Riggins case, dismissing the State’s petition for writ of certiorari and denying the State’s petition for rehearing. State v. Riggins, Case No. 52,154, 362 So.2d 1056 (Fla.1978).

Initially, we believe we must make certain the reader understands we have not been called upon to and we are not ruling upon whether there is a constitutional violation in the taking of one’s blood without consent. We are, rather, construing Section 322.261, Florida Statutes (1975), as it applies to the facts of this case.

As earlier noted, the facts of the Riggins case, though somewhat more gross, are practically identical with the case sub ju-dice. As stated in the Riggins case, Section 322.261(l)(a), Florida Statutes (1975), commonly referred to as the “implied consent law”, provides that any person accepting the privilege of driving a motor vehicle in this state, shall be deemed to have given his consent to submit to an approved chemical test the alcohol content of his blood if he is lawfully arrested for any offense committed while driving a motor vehicle under the influence of alcoholic beverages. However, sub-section (d) provides that, if such person refuses an officer’s request to submit to such test, the Department of Highway Safety and Motor Vehicles shall suspend the person’s privilege to operate a motor vehicle for a period of three months. Thus, it appears that the implied consent evidenced by accepting the privilege of operating a motor vehicle in this state may be revoked at the time the chemical test is suggested by an officer and refused by the driver. Otherwise, the section providing for suspension upon refusal to submit would be superfluous.

As did Judge Downey, the author of the Riggins decision, so do we excerpt here a portion of an article appearing in the University of Miami Law Review wherein the writer opined: “Paradoxically, even though the driver has ‘consented’ to a chemical test, the statute provides that he may refuse to submit.” Paradoxically, it does appear, but the language and the intent of the legislature is patently clear else it would have not so provided had its intent been otherwise.

Accordingly, we hold that Section 322.-261, Florida Statutes (1975), prohibits the taking of a blood sample from a person suspected of driving while under the influence of intoxicants when that person expressly objects to the taking thereof. The order of the circuit court herein is reversed and the order of the county court granting the motion to suppress is reinstated and the cause is remanded for further proceedings consistent with this opinion.

GRIMES, C. J., and OTT, J., concur.

      . “Florida’s ‘Implied Consent’ Statute: Chemical Tests for Intoxicated Drivers”, 22 Univ. of Miami Law Rev. 698.


author: PER CURIAM. SMITH, Judge,

text:
    Billie Earl HETHCOAT, as administratrix of the Estate of William Randolph Eatman, Jr., Deceased, Appellant. v. CHEVRON OIL CO., Hy-Way Heat Systems, Inc. and V. E. Whitehurst & Sons, Inc., Appellees.
    No. FF-387.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1978.
    Rehearing Denied Dec. 29, 1978.
    William C. Owen of McClure, Wigginton, Campbell & Owen, P. A., and Robert C. Dean, Tallahassee, for appellant.
    Richard T. Jones and Robert Dennis Comfort of Jones & Langdon, P. A., Gainesville, for appellee Chevron.

      Bruce S. Bullock and Martin J. Mickler of Bullock, Sharp & Childs, P. A., Jacksonville, for appellee Hy-Way.
    Monroe S. McDonald of Sanders, McE-wan, Mims & McDonald, Orlando, for appel-lee Whitehurst.
   PER CURIAM.

Plaintiff appeals from judgments for all defendants entered on directed verdicts of nonliability. The principal issue is whether plaintiff’s proof made a prima facie case against any of three defendants. The action arose from the death of plaintiff’s husband, a welder, when the acetylene and oxygen flame from his torch exploded oil vapors or other volatile material in a large tank assembly which defendant Hy-Way designed, built, and sold as suitable for heating asphalt by circulating hot oil in coils through the storage tank. Use of an acetylene torch was necessary to remove a deteriorated innerliner of the heating chamber which was the heart of the system.

We have carefully reviewed the briefs and record, including the entire trial transcript and the exhibits. The trial judge was clearly correct in directing verdicts for the owner of the heating tank and for the manufacturer of the heat transfer oil that was used in it. Neither was there evidence sufficient for consideration by the jury as to the claim against Hy-Way, manufacturer of the tank.

The plaintiff’s case against the manufacturer, in a light most favorable to plaintiff, comes to this: Hy-Way manufactured a machine for heating asphalt by means of coils circulating hot oil within the storage tank. The oil within the coils was heated by a small furnace integral to the tank. The intended use of the machine both deteriorated the innerliner of the furnace and produced combustible materials in the form of vapors from clinging oil, remaining after drainage, or other residues. Replacement of the deteriorated innerliner was inevitable unless the entire tank system was designed to be discarded when the innerliner failed. The innerliner could not be removed and replaced except by burning it out with an acetylene flame. An oxygen-rich flame, applied by the decedent’s torch, tended to and did cause a violent explosion of the volatiles present in a closed space. The explosion killed the decedent.

Plaintiff first urges that the design was defective. We agree with the trial judge that no such defect was demonstrated by the evidence. The mere fact that an injury occurs as a result of the use of, or being in the vicinity of, a machine does not render the manufacturer liable. Virtually every machine' is capable of being the instrument of hurt. Automobiles run over people, guns discharge bullets into people and electrical appliances shock and kill people. A pencil sharpener will grind off a finger if placed into it. A dishwasher will sever fingers and hand if inserted while in operation. To design a machine incapable of doing injury would require the design of an apparatus having no use. The law will not require an absurdity. Sub judice, the subject asphalt machine did no harm to the decedent. It just happened that the machine incorporated devices which used petroleum. The machine did not explode. The explosion resulted from exposing acetylene and oxygen to petroleum vapors.

Plaintiff further asserts as a basis of liability on the part of the manufacturer that there was no warning on the machine nor in the manufacturer’s literature of the danger of applying a cutting torch without first purging the system by steam, urging that a manufacturer who markets a machine which inevitably requires maintenance involving a systemic and grave risk, without warning of risks that cannot be eliminated, is subject to potential liability even to those whose own vocational experience should provide warning enough. The application of such a rule of law would unquestionably have grave and now un-thought of consequences. There is virtually no part of a machine, including the ordinary electric motor and the ordinary automobile which does not present potential dangers to a repairman. To hold that every part subject to repair at grave risk must have a posted warning would result in an impossible and even undesirable situation. One wonders, for instance, where the warning should be posted on a bicycle chain subject to severing the fingers of a repairman; the gas tank of an automobile subject to exploding while in the process of repair; the electric motor on all sorts of household devices (blenders, dishwashers, washing machines, air conditioners, etc.) subject to electrocuting a repairman if the current is not cut off.

We are not unaware of the holdings in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976) and Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), but those holdings were never intended to impose an impossible and unreasonable burden upon a manufacturer. Further, the issue is not whether the decedent assumed the risk when he put the torch to the tank, but whether or not there was a duty on the manufacturer to warn welders against such obvious danger. We conclude that there was no more duty on the manufacturer of the subject machine to warn of such danger than there is upon the manufacturer of an automobile to warn against the danger of putting an acetylene torch to the gasoline tank of an automobile. No such duty exists in either instance. There being no duty to warn, there was no negligence on the part of the manufacturer.

AFFIRMED.

McCORD, C. J., and BOYER, J., concur.

SMITH, J., concurs in part and dissents in part.

SMITH, Judge,

concurring and dissenting:

I agree with the majority that the trial court correctly directed verdicts for the owner of the heating tank and the manufacturer of the heat transfer oil which was used in the tank. I disagree with the majority’s conclusion that the plaintiff’s evidence was as a matter of law insufficient against Hy-Way, manufacturer of the heating tank. In my opinion a jury question was presented.

Until recently it could well be argued by Hy-Way that the danger of applying an acetylene flame in a close space where oil residues are present is open and obvious, if not to the world at large, at least to one who is by trade a welder. See Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla. 1st DCA 1976). But the “patent danger” rule, preventing liability by eliminating the duty to warn in certain cases, has now been abrogated. See Blaw-Knox Food & Chem. Equip. Corp. v. Holmes, 348 So.2d 604 (Fla. 4th DCA 1977), cert. dism., 351 So.2d 405 (Fla.1977); West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976); Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). Plaintiff’s motion at trial to amend the pleadings to conform to the evidence giving rise to a claim under Section 402A, Restatement (Second) of Torts, made West applicable in this case. Linder v. Combustion Engineering, Inc., 342 So.2d 474, 476 (Fla.1976); Fla.R.Civ.P. 1.190(b).

Once the patent danger rule is dropped from consideration, I think plaintiff’s evidence made a jury question either on the issue of Hy-Way’s negligence or on the issue of whether its machine was designed with a defect making it unreasonably dangerous. The intended use of the machine both deteriorated the innerliner of the furnace and produced combustible materials in the form of vapors from clinging oil, remaining after drainage, or other residues. The jury could have found, I think, that the system was not properly vented. The jury could also have found that the manufacturer gave insufficient warnings concerning precautions to be taken in the anticipated removal of the deteriorated innerliner by burning it out with an acetylene flame. The manufacturer’s published instructions for that recommended process stated: “Remove all oil from heater”; but, plaintiff urges, Hy-Way negligently failed to prescribe the use of steam to remove oil film or other volatiles remaining after drainage of the tank.

In Blaw-Knox, the District Court of Appeal, Fourth District, found that a jury question of negligence was presented on the issue, among others, of whether the manufacturer of a potato chip cooker negligently designed its machine in such a way that workers could not readily correct a predictable malfunction without standing precariously over a kettle of hot oil, and in failing to give proper instructions for avoiding the grave danger thereby encountered. The danger of balancing on a board over a kettle of hot oil was presumably as evident to the workers in Blaw-Knox as the danger of firing an acetylene torch was to the welders in this case. We attributed the same sort of knowledge to Brandies in Farmhand, and so eliminated the duty to warn because of the “patent danger” rule. Now, I am persuaded, the manufacturer who markets a machine which by design inevitably requires maintenance involving a systemic and grave risk, and who does not minimize the risk or warn if the risk cannot be eliminated, is subject to potential liability even to those whose vocational experience should provide warning enough. The allocation of responsibility in such a case is for the jury.

I would affirm as to Whitehurst and Chevron, but reverse as to Hy-Way and remand for a new trial.