text:
    Terry Eugene BRUMBACK v. STATE.
    6 Div. 807.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.
    Benjamin Daniel, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is an appeal by an indigent from a conviction of burglary of an inhabited dwelling in the nighttime, with the intent to ravish, wherein appellant was sentenced to fifteen years imprisonment. His judgment of conviction is before this court for review, for which appellant has been provided a free transcript and appointed counsel, who was also appointed to represent him at trial.

On October 25, 1977, the victim was living in a house located on Loch Haven Drive in Hoover, Jefferson County, Alabama, with her eleven-year-old son. She testified that, on the night in question, she had been out with her boyfriend, Larry Chandler, and that, after they returned, they watched television until approximately 11:45 P.M.

As her boyfriend left the house to go to his car, they heard the sound of footsteps on the road near her house. It was raining at the time her friend left and he told her that he would “circle around the block, to see if he could see anyone.” She returned to the house, locked the front door and went to bed about 12:30 P.M.

At trial, the victim stated that the house had two rear doors which were locked on the night in question. She explained that the back doors also had “night locks,” which were “[t]he kind where you have the chain.”

The victim recalled that she was awakened around 4:00 A.M. and saw someone standing at her bedroom door. She stated that she “could tell from the shadow in the doorway that it was a man.”

The victim gave the following account of what occurred next:

“I came up half-way out of bed and started to scream, and he kicked the door to and came over there, and, with one hand, he pushed me down on the bed and took the other one and put it over my mouth and told me not to scream. . . .”

She said that the man told her not to scream and that he would remove his hand if she promised she would not scream.

She stated that her assailant told her that he “didn’t want to wake up the kid in the next room, and if I would do what he said do he wouldn’t hurt me or the kid in the next room.” Further, the victim said that the man told her that he was going to rape her.

She testified that she asked her assailant, “Let’s talk; please, let’s talk.” At that point, the man let her sit up on the bed, but held her hand, and asked, “What do you want to talk about?” She said that she pleaded with him but that he told her, “There’s been enough talk. That’s enough.”

The victim said that the man then told her to remove her clothes. When she started to remove her gown, she reached for a gun on the night-table on the left-hand side of the bed.

At trial, she described the gun as a .22 caliber, black with a white handle, bearing a “steerhead design on the handle.” Further, she stated that “[i]t had about four bullets, I believe, in it. They were twenty-two longs.”

The victim went on to say that, as she reached for the gun, her assailant saw her reach for it, took the gun from her, pointed it at her and said, “now lady I mean business you understand.” At that point, she was ordered to walk to the bedroom door and lock it.

She stated that, during the time the man was in the room with her, the room was completely dark and that, after she removed her gown, the appellant had sexual intercourse with her.

According to the victim, after her assailant had dressed, he pulled the bed linen over her head and said that he was going to turn on the light and make sure he had not left anything. The victim stated that, before leaving, her assailant told her he was going to check the house for fingerprints and that he was also going to take the telephone “off the hook.” She said that, at that point, she asked her assailant what he was going to do with the gun and he responded that “he was going to take it with him.”

She stated that she stayed in the bed until after she heard the door close. Then she got up, went to the den and replaced the telephone, returned to her bedroom and called her ex-husband. After “about fifteen minutes,” her ex-husband arrived and called the police.

Later, Hoover uniformed police officers arrived at her home and, while they were there, the victim observed that the chain on the back door had been broken. She testified that, at that time, she also gave the police officers a description of her assailant, “as best I could.”

The victim testified at trial that she could not make an identification of her assailant and said that she had never seen the appellant before.

At the conclusion of this statement, the district attorney directed the victim's attention to the 8th day of November, 1977. At that point, defense counsel requested a conference at the bench. Subsequently, the court dismissed the jury from the courtroom and testimony was taken on the appellant’s motion to suppress, which he had filed prior to trial.

During the suppression hearing, the victim testified that, on November 8, 1977, around 11:00 P.M., she was at home with her boyfriend, Larry Chandler. She said that her son was in bed at that time, and that, while they were watching the television in the den, Chandler fell asleep on the floor. She said that she was lying on the couch but was not asleep.

She testified that she heard something outside, and stated, “I raised my head up off the pillow, and I heard just a jiggling sound at my back door and I could tell that somebody was coming in.” At that point, Chandler, who had a pistol, was awakened and, when the door opened, he called out, “Halt, or I will shoot.” According to the victim, the intruder ran from the house and Chandler chased him.

The victim testified that, when she talked with the police on October 25th or 26th, she gave them the description of the pistol that her assailant had taken. She stated that she also told them that “it had four bullets in it.”

During voir dire cross-examination, she stated that she had talked to the police about the gun on the night of October 25th but that she did not know if she had given them a description of it that evening. However, she did state that her ex-husband had described the pistol to the police as a “twenty-two caliber.”

Further, the victim stated that the statement by her ex-husband that the gun was “a twenty-two caliber revolver” was made to the police in her presence. But, she said, “I’m not sure I heard him say it was ‘long’. He could have said something about it.” However, she acknowledged that she had not mentioned anything about the pistol being a “twenty-two caliber long,” to Sgt. Ray, and added, “My husband talked to him about the gun because he said he knew more about it than I did.”

Hoover Police Sgt. Don Ray testified that he had conducted an investigation of the assault on October 25,1977. Ray also stated that the preliminary investigation was made by Sgt. French and Officer Beard.

Sgt. Ray testified that he recalled the victim telling him that a .22 caliber long pistol was taken from her possession on the night of the assault. He swore to that statement in the affidavit supporting the search warrant issued for the appellant’s apartment. Ray stated that the victim’s husband also told him about the pistol.

Further, Ray said it was his belief that the “Incident Report” made by the investigating officer described the pistol as a “twenty-two caliber.” However, he was not sure, without looking at the report, whether the report also said “long.”

Ray stated that, when the appellant was arrested on November 8th, he himself did not search the appellant, but it was his belief that the appellant was searched when he was placed under arrest by Sgt. French.

Ray stated it was his best recollection that, at the time of the arrest, Larry Chandler asked the appellant “there in the street, ‘Why did you rape my girlfriend?’ ” The appellant’s response was, “I didn’t mean to harm her. I really didn’t mean to hurt her.”

Ray said that Larry Chandler and Sgt. French told him that the intruder had said “he did not mean to rape her.” Ray said that this statement by the appellant was made in Officer French’s presence.

Sgt. Tom French of the Hoover Police Department stated that, on November 8, 1977, he responded to a radio call and went to the victim’s residence. He said that, when he got to the intersection of Loch Haven and Rocky Ridge Road in Hoover, Alabama, he stopped his patrol car and heard a man yelling, “Over here, over here.”

French stated that, at that time, he saw two men on the ground and that one of the men was armed with a pistol and had his knee in the back of the other. French said he later learned that the man armed with the pistol was Larry Chandler and that he was holding the appellant at gun point.

French stated that he took the pistol from Chandler and then searched the appellant. According to French, when they picked the appellant up, Chandler came up to him and started yelling at the appellant. He wanted to know why the man had raped his girlfriend. French stated that the appellant’s response was, “I didn’t mean to harm her.”

French said that he informed Sgt. Ray of Chandler’s questions and the appellant’s response. Further, French acknowledged that the appellant did not, in his presence, use the words, “I didn’t mean to rape her.”

French stated that the appellant had a billfold at the time he was searched and that French had turned the billfold, and the appellant’s other personal effects, over to Sgt. Ray before taking the appellant to jail. French stated that, in the appellant’s coat pocket, he found “two twenty-two caliber long bullets.”

Larry Chandler testified that he was in the victim’s house on the morning of November 8th and was awakened by the victim, who said, “This is it. He has come back.” At that point, Chandler said he rolled over and “cocked my pistol.”

Subsequently, the den door opened and a person stuck his head in the door. Chandler said that, at that point, he shouted, “Halt, or I’m going to kill you.” According to Chandler, the man ran off and he pursued him. He said the man ran to a car and tried to get in and that, when Chandler placed his hands on him, the man pulled away.

Chandler said that, after catching the man, “I asked him why did he do what he did before, and he said: ‘I’m sorry. If you let me go, I will never bother you all again. I didn’t mean to do it.’ ”

Chandler said that he did not remember whether the appellant had used the word “rape.” Further, Chandler testified as follows: “No, I never said — well, I don’t know if I said it. I might have, you know, but I don’t remember saying the word ‘rape.’ ”

Chandler stated that he remembered talking to a police officer but that he did not believe it was Sgt. Ray. Further, he testified that he remembered talking to a district attorney at the courthouse but said he did not remember using the word “rape” then or in his statement to the district attorney.

At the end of Chandler’s testimony, the testimony on the motion to suppress was concluded and the court overruled the motion to suppress.

At that point, the jury was recalled to the courtroom and the victim continued her testimony. She gave substantially the same testimony that she had given during the suppression hearing.

However, during the trial, the victim identified the pistol taken from her on the night of the assault and said that it was in the same condition, except that at the time it was taken, it did not have rust on the barrel. She added that, at the time of the assault, it was raining outside. She said that, sometime after November, 1977, Sgt. Ray brought the pistol to her house for her identification.

During cross-examination, the victim stated that, from the time her assailant entered her home until he left, some thirty minutes had elapsed. She described her assailant as follows:

“He would be medium height tall to me. That is what I mean by ‘tall’ . Five-nine to five-ten.”

Further, she said that, on the night in question, her assailant’s hair was “extremely wet.”

She also said that she believed that she had told Sgt. Ray that the pistol taken from her residence was a “twenty-two long.” She explained that this was her best recollection of Her statement and that “long” meant “where the bullets are longer.”

Larry Chandler testified that, on the night of the assault on his girlfriend, he had visited her home and that, as he was leaving, they heard someone walking outside. When he went to his car, Chandler saw a man walking down the street in the rain.

Chandler explained that he heard the man before he saw him. Chandler went on to say that the man “had on heavy boots, or had boots of some type that you could hear him walk. Like these shoes, here, [indicating]. They were heavy, hard shoes. You could hear him walk.”

Chandler also testified that he recalled being at the victim’s house on November 8, 1977, and that, on that occasion, he was awakened by the victim and observed the back door open. He said that he chased the intruder, whom he caught some distance from the house. Chandler identified the appellant as the man he caught on that occasion and stated that the appellant said, “I’m sorry I did it and I won’t bother you again.”

Chandler said that after the appellant was taken into custody he had a conversation with the police officers and that it was sometime during that period that he identified the victim’s gun.

During cross-examination, Chandler stated that he had asked the appellant, “Why did you do what you did before?” and that the appellant had responded “that he was hungry, that he just wanted to get something, he was starving to death.” Chandler explained that he did not know whether the appellant was talking about the first or the second occasion that he came to the victim’s home, and said, “he could have been talking about any time.” Also, Chandler stated that he could not say whether he [Chandler] had used the word “rape” in front of Sgt. Ray.

Sgt. Tom French stated that, on October 25, 1977, he was accompanied by Officer Lester Beard in making an investigation of the assault. He testified that, during the investigation, he observed that the “night latch,” or chain lock, on the back door of the victim’s house was broken.

French said that he went to the victim’s house again on November 8, 1977, in response to a radio dispatch. He stated that he was accompanied by Officer Ronnie Williams, and that, when they arrived, they heard someone calling, “Over here, over here.”

French stated that he and Williams ran in the direction of the sound and found Chandler and the appellant on the ground. French stated that, after picking the men up from the ground, they started to handcuff the appellant.

At that point, according to Sgt. French, Chandler asked the appellant, “why hé raped his [Chandler’s] girlfriend.” French recalled that Chandler was “quite excited, and mostly out of breath.”

French said that, about that time, Officer Beard arrived and he instructed Beard to go with Mr. Chandler. French said he then took the appellant to the Hoover City Hall.

Sgt. French stated that, when he arrived at the city hall, he searched the appellant again and, in the appellant’s pocket, he found “[t]wo twenty-two caliber long cartridges.” He said that these items were placed in an envelope and given to Sgt. Ray.

During cross-examination, French stated that he also communicated to Sgt. Ray what the appellant had said at the time he was arrested.

Sgt. Don Ray testified that, on the date of the assault, he had not gone to the victim’s house but had talked to Sgt. French at the Hoover Police Department. He said he later had a conversation with the victim at Cooper Green Hospital in Birmingham.

Sgt. Ray stated that, on November 8, 1977, he saw the appellant while in custody and that, at that time, Sgt. French told him what had occurred. Further, he stated that he was then given two .22 caliber long bullets.

Ray said that, on the morning of November 8, 1977, he went to the Jefferson County Courthouse accompanied by Larry Chandler. At that time, they had a conversation with a deputy district attorney concerning obtaining warrants for the appellant.

Ray stated that, at that time, he requested a search warrant based on the testimony that Larry Chandler had made to the deputy district attorney. He said that, after the search warrant was executed, the appellant’s apartment was searched and the .22 caliber revolver was found beneath the mattress in the appellant’s bedroom. They also found “one twenty-two caliber long pistol bullet” on the appellant’s dresser in the bedroom and a pair of “paratrooper jump boots that are lace boots.”

During cross-examination, Sgt. Ray testified that he believed that the appellant’s address was 1521-R, 16th Ave. South, because this was the address that appeared on his driver’s license. When the search warrant was executed he also found that appellant’s name appeared on the mail box for that address.

Ray recalled that the victim had described her assailant as being approximately six feet tall, one-hundred and seventy pounds, and had stated that, after the assault, she had heard the assailant lacing up some boots.

On re-direct examination, Sgt. Ray testified that, after he recovered the pistol from the appellant’s apartment, he went directly to show it to the victim.

At the end of Sgt. Ray’s testimony, the victim was recalled and testified that, on the night of the assault, she could hear her assailant, while he was disrobing, unlacing his boots. During cross-examination, she stated that she had told Sgt. Ray, on October 25, 1977, that she could smell the odor of onions on her assailant’s breath.

At that point in the trial, Sgt. Ray was recalled and testified that, at the time he searched the appellant’s apartment, on November 8, 1977, he found some clothing with the emblem of “Wendy’s Hamburgers.” He stated that he also found a pair of “paratrooper boots,” which “are brown, high type boots, with laces,” next to the bed.

At the end of Sgt. Ray’s testimony, the defense recalled Larry Chandler for further cross-examination. He testified that he never saw the search warrant for appellant’s apartment, but remembered going before the magistrate and being placed under oath. He stated that he did not know the contents of the search warrant and could not swear that it contained his statements. Further, he said that the appellant had not used the word “rape” in his presence.

Sgt. Ray was recalled for further cross-examination and testified that he had seen the appellant’s drivers license in his billfold. Ray explained that it was “the new type” that bore the person’s picture on the license.

At the end of Sgt. Ray’s testimony, the defense made a motion to exclude the State’s evidence and the court overruled the motion. Appellant did not take the stand in his own behalf and the defense, at that time, called Fred Hughes, a former manager of the “Captain D” restaurant. He testified the appellant had worked for him at the restaurant in Bessemer, Alabama. Hughes stated that the appellant had an aversion to onions and that the appellant “broke out crying” and his eyes swelled “like balloons,” on the only occasion Hughes had seen him cut onions. Hughes said that, as a result, the appellant was excused from the duty of preparing onions.

During cross-examination, Hughes stated that it was his belief that the appellant quit working at the restaurant around “the first of October, I believe, because I quit shortly afterwards.” At the end of Hughes’ testimony the defense rested its case and the State called, in rebuttal, Sgt. Ray.

Sgt. Ray testified that he had spoken with one of the managers of the Wendy’s food chain and determined that the appellant had gone to work there around October 18, 1977.

Billy Wentz, the manager of Wendy’s Hamburgers in Birmingham, Alabama, testified in rebuttal for the defense, and stated that the appellant started to work as a manager trainee for Wendy’s on October 31, 1977. Further, he stated that it was part of the appellant’s duty to cut onions and that he did not recall whether the appellant was allergic to onions. Wentz added, however, that the appellant “would cry like everybody else.”

At the end of Wentz’s testimony, the defense completed its case.

I

The appellant contends that the trial court was in error when it overruled his motion to suppress. He argues that, “[W]hen material statements, in search warrant sufficient on its face, are impeached, contradicted and proven erroneous,” the search warrant is rendered invalid and the products of the resulting search are due to be suppressed and excluded as evidence.

The supporting affidavit to the search warrant, which was sworn to by the affiant officer, including the alleged false statement, appears as follows, omitting the victim’s name in order to preserve her anonymity [emphasis is placed on the statement alleged to be false]:

“Before me, Judge of the District Court of Jefferson County, personally appeared Sgt. Don Ray, Hoover Police Department, Jeff. Co., Alabama, who, after being duly sworn, upon his oath deposes and says as follows:
“On October 25, 1977, at approximately 4:00 A.M., the residence of [the victim], 3425 Loch Haven Drive, Hoover, Jefferson County, Alabama, was broken into by an unknown white male. [The victim] confronted said white male with a pistol, white male took the pistol away from [her] and raped her. Said white male then left said residence.
“On November 8, 1977, at approximately 1:30 A.M. the residence of the said [victim] was again broken into and the intruder was confronted by [her] boyfriend, Larry Chandler. Said Larry Chandler confronted intruder with a pistol and the intruder broke and ran out the back door which he had entered. Said Larry Chandler pursued the intruder, never losing sight of him and apprehending said intruder, Larry Chandler asked him why he did what he did two weeks ago and said intruder said that he did not mean to rape her; he didn’t know why he did it. Members of the Hoover Police Department arrived immediately thereafter, took the intruder into custody and he was subsequently identified as Terry Eugene Brumback, who gave his address as 1521-R 16th Avenue South, Birmingham, Jefferson County, Alabama. When taken into custody, said Brumback was searched and two .22 caliber long cartridges were recovered from his person. [The victim] informs me that the .22 caliber pistol which the intruder took from her on October 25, 1977, was loaded with .22 long cartridges.
“Based on the above information, I have probable cause to believe and do believe that the .22 caliber pistol taken from [the victim] is presently being concealed at 1521-R 16th Avenue South, Birmingham, Jefferson County, Alabama.”

The appellant insists that the testimony shows that the word “rape” was never used by the appellant and that the victim never testified that the pistol taken from her was loaded with .22 caliber long cartridges. Further, appellant claims that, without the two allegedly false statements, there was no showing of probable cause to search his apartment. He maintains that the testimony of Sgt. Ray concerning the use of the word “rape,” and any evidence concerning the .22 caliber pistol should have been suppressed.

As can be seen from the testimony outlined above, the victim testified that it was her belief that she had given a description of her pistol to the police but that she later testified that she could not remember whether she gave the police a description of the pistol. However, she stated that her ex-husband had described the pistol to the police in her presence. In her testimony, she described the gun as a .22 caliber pistol, which was loaded with four bullets at the time it was taken. She added that she did not remember whether the word “long” was mentioned in relation to the cartridge size, but, during further testimony, she explained that “long” referred to the size of the cartridge.

Sgt. Ray testified that the victim and her ex-husband reported to him that a .22 caliber long pistol was taken from her on the night of the attack. However, he stated that he was “unsure whether the police incident report contained the word ‘long.’ ”

The record reflects that Sgt. Ray testified that Larry Chandler had told Sgt. French that the appellant made the statement, upon being apprehended, that “he [appellant] did not mean to rape her.” Sgt. French’s testimony was to the effect that Larry Chandler asked the appellant why he had raped his [Chandler’s] girlfriend and that the appellant had responded that he did not mean to harm her. It was French’s testimony that Chandler, not the appellant, had used the word “rape.” These statements were communicated to Sgt. Ray.

Chandler testified that he had asked the appellant “why did he do what he did before,” and stated that he did not remember whether he or the appellant had used the word “rape.”

In support of his contention that the evidence in question should have been suppressed, the appellant relies upon McConnell v. State, 48 Ala.App. 523, 266 So.2d 328, Brown v. State, 42 Ala.App. 429, 167 So.2d 281, and U. S. v. Thomas, 489 F.2d 664.

McConnell v. State, supra, can be distinguished from the case under consideration. There, a search warrant was held invalid when material statements contained in the affidavit were subsequently contradicted and proved erroneous through the testimony of the affiant officer. In the present case, the affiant officer testified that the statements he had sworn to in support of the affidavit were those made by the victim and the victim’s boyfriend, Larry Chandler.

We also distinguish Brown v. State, supra, because the supporting affidavit indicated that the affiant had personal knowledge that contraband liquor was on the premises. However, at trial, it was shown that the affiant had received his information from anonymous telephone calls. In the present case, the affiant officer was quoting statements which he maintained had been made by the victim’s boyfriend and by another investigating officer.

We would also point out that, in U. S. v. Thomas, supra, the affiant agent had a good faith belief, based upon his investigation, that he had used the appellant’s correct name in the affidavit, although he had been referred to by a nickname by informants and his proper name was not the one used in the affidavit.

The requirements necessary to void a search warrant containing false representations are set out in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. There, the United States Supreme Court acknowledged that there is a presumption of validity with respect to affidavits supporting search warrants.

However, the court went on to say that, in order to void a search warrant, it must be established by a preponderance of evidence that the affiant made a false statement, knowingly and intentionally, or with reckless disregard for the truth. Further, the alleged false statement must have been necessary for the finding of probable cause. The Supreme Court also stated that allegations of negligence, or innocent mistakes, are not sufficient to void a search warrant otherwise properly executed.

In the instant case, testimony by the affi-ant officer shows clearly that the statements which he made in the affidavit supporting the search warrant were made in good faith and were based upon his investigation. Sgt. Ray never wavered in his testimony and never contradicted his original statements contained in the affidavit.

The testimony of the victim and her boyfriend, Larry Chandler, shows that both were not as positive of their statements. However, at no time was there any showing of perjury or that any witness knowingly made any false statement or did so with reckless disregard for the truth.

This court, in Smith v. State, Ala.Cr.App., 351 So.2d 668, which concerns whether a police officer intentionally or negligently misrepresented the facts in a supporting affidavit, stated that the general rule .in Alabama is that conflicting testimony presents the question for the trier of fact. The court went on to say:

“[T]he weight and credibility to be attached to the testimony of the witnesses during the suppression hearing . was a question for the judge . . . .”

Based upon our examination of the testimony at trial and at the suppression hearing, we are of the opinion that sufficient evidence was presented to warrant the trial judge’s finding that the statements contained in the supporting affidavit were not knowingly and intentionally falsified and the motion to suppress was properly denied.

Further, it is our judgment that appellant’s motion to exclude the State’s evidence was properly denied. The evidence submitted by the State was sufficient to raise questions of fact for the jury and to sustain appellant’s conviction. Young v. State, 283 Ala. 676, 220 So.2d 843; McHellen v. State, Ala.Cr.App., 351 So.2d 689.

We have examined the record and have found no error prejudicial to this appellant. Therefore, the judgment of conviction of the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John A. KAMPFF, Appellant, v. STATE of Florida, Appellee.
    No. 48895.
    Supreme Court of Florida.
    March 29, 1979.
    Rehearing Denied July 9, 1979.
    Joel Hirschhorn of Hirschhorn & Freeman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

John Kampff was found guilty by a jury of the crime of murder in the first degree. The Circuit Court of the Nineteenth Judicial Circuit, in and for St. Lucie County, rendered a judgment of conviction. The jury recommended that Mr. Kampff be sentenced to death, and the court followed the jury’s recommendation. This Court has appellate jurisdiction to review the judgment and the sentence. Art. V, § 3(b)(1), Fla. Const.; § 921.141(4), Fla.Stat. (1975).

The evidence, which included direct eyewitness testimony, established that the appellant killed Josephine Kampff, his former wife, by shooting her with a pistol, with a premeditated design to effect her death. The shooting was done at the victim’s place of employment, a bakery and retail store. Five shots were fired, three of which entered the victim’s body. The third bullet to enter her body was a direct shot to her head. The bullets were fired in rapid succession. There were two persons present besides the appellant and the victim when the shooting took place.

The appellant and the victim were married when he was twenty-one and she seventeen years of age. They reared four children. They were divorced after seventeen years of marriage. For three years after the divorce, the appellant begged his former wife to remarry him. The children testified to his continual harassment of her and his obsessive desire to regain his former status as husband. The obsession was intensified when he began to suspect that she was becoming involved romantically with another man.

There was testimony that the appellant had an extreme and chronic problem with alcoholism. During the last few days before the murder and on the day of the murder, the appellant visited at various times with his children and their friends. He continually brought up the subject of his former wife’s involvement with another man, and the children vehemently defended their mother. They also demanded that he not bring up the matter, but he was incapable of complying.

The appellant raises several points on appeal from the judgment of conviction. Each of them has been given careful consideration. We hold that the evidence was sufficient to support the jury’s verdict and that there was no reversible error in that portion of the trial at which appellant’s guilt was adjudicated.

The appellant also challenges the sufficiency of the trial court’s findings as to aggravating and mitigating circumstances and the propriety of the sentence of death.

As is required by the capital felony sentencing law, section 921.141, Florida Statutes (1975), the trial judge issued written findings of fact in support of the sentence:

FINDINGS UPON WHICH SENTENCE OF DEATH IS IMPOSED

The jury having rendered an advisory sentence in which a majority of the jurors recommended the Court impose a sentence of death, and the Court having concurred with the opinion reached by a majority of the jurors, now therefore, pursuant to the mandate of Florida Statute 921.141 requiring that the determination of the Court to impose a sentence of death be supported by specific written findings of fact based upon the records of the trial and the sentencing proceedings, it is hereby found and determined that aggravating circumstances, far outweighing any mitigating circumstances, are as follows:

1. The defendant planned his crime of murder well in advance.

2. The defendant made careful preparation by purchasing a pistol and cartridges for use in the crime of murder.

3. The defendant fired 5 pistol blasts from a .38 calibre pistol at the victim, at least one shot of which struck the victim in her head.

4. In committing murder the defendant jeopardized the lives of persons other than the victim.

5. The defendant entered upon a drinking spree of several days duration consuming large quantities of beer and whiskey.

All of which, taken together, make the capital felony especially heinous, atrocious and cruel and far outweigh any mitigating circumstances shown by the evidence and which must be considered by the Court.

This court, by order of April 18, 1977, directed that the trial court judge, among other things, clarify his findings by disclosing the statutorily enumerated aggravating circumstances which he found to exist and delineating the mitigating circumstances, if any, that he found to be outweighed by the aggravating circumstances. In his response, the trial court judge recited the following considerations:

Turning to the question of aggravating circumstances versus mitigating circumstances. From an examination of the Record it will be seen that the evidence produced by the State during the second part, or Penalty Proceedings, in the trial was striken [sic] by the trial judge on motion by the defense. Therefore, the only evidence to be considered by the jury while deliberating on the advisory sentence, and the trial judge in considering the aggravating circumstances, if any, and mitigating circumstances, if any, was the evidence produced during the first part of the trial. Therefore, examination of the whole record is required and when examined the record discloses the only listed aggravating circumstances which have any application here are as follows:

F.S. 921.141(5)
(c) The defendant knowingly created a great risk of death to many persons, and
(h) The capital felony was especially heinous, atrocious, or cruel.

1 — (on c above) Two persons other than Appellant/Defendant and the deceased were in the retail shop of the Dandee Bakery at the time of the killing. The Dandee Bakery employs many people. It is located on U. S. Highway # 1 and Avenue C in the City of Fort Pierce, a heavily traveled area. To the undersigned, the firing of five shots (at close range, only two of which hit the deceased) certainly “created a great risk of death to many persons.”

2 — (on h above) In Penalty Proceedings in capital cases juries are instructed that:

“Heinous” means extremely wicked or shockingly evil.
“Atrocious” means outrageously wicked and vile.
“Cruel” means designed to inflict a high degree of pain; utter indifference to, or enjoyment of, the suffering of others; pitiless.

In reiteration, a study and examination of the record reveals, in the opinion of the undersigned, facts which make this crime heinous, atrocious and cruel within the definitions above set forth.

The Appellant/Defendant planned the crime of murder well in advance, and by his own admission, for three years. He purchased the gun and ammunition the day before the killing, followed his ex-wife to her place of work and discharged his pistol five times, two blasts of which hit the deceased, one in the head after he carefully leaned over a sales counter to aim at her.

Appellant/Defendant, while testifying, showed no remorse. His son testified Appellant/Defendant gave him a .38 caliber bullet to give to his mother and told him to tell her to “have fun.” Two of the Appellant’s daughters testified. • One testified he had been harassing her mother ever since their divorce. The other that Appellant asked her if she would miss her mother if anything happened to her. When advised his former wife was dead, Appellant’s reply was “good.”

The undersigned, after searching and sifting the evidence for mitigating circumstances as set forth in F.S. 921.141(6), finds none to be delineated here as directed by the Order for Clarification.

We consider first the finding that the firing of five shots at close range under the circumstances established that the appellant knowingly created a great risk of death to many persons. There was evidence that two persons besides the appellant and the victim were present in the store at the time of the shooting. There were other people in the building and in the general area. One of the bullets appellant fired ricocheted and lodged in a wall.

When the legislature chose the words with which to establish this aggravating circumstance, it indicated clearly that more was contemplated than a showing of some degree of risk of bodily harm to a few persons. “Great risk” means not a mere possibility but a likelihood' or high probability. The great risk of death created by the capital felon’s actions must be to “many” persons. By using the word “many,” the legislature indicated that a great risk of death to a small number of people would not establish this aggravating circumstance. We hold that the trial court erred in finding that the appellant created a great risk of death to many persons.

We now turn our consideration to the court’s finding that the murder was especially heinous, atrocious, or cruel. In State v. Dixon, 283 So.2d 1, 9 (Fla.1973), it is explained that:

What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

There is no support in the evidence for the conclusion that the appellant “planned” the murder for three years. The evidence showed, rather, that he spent three years brooding over his divorce. Directing a pistol shot straight to the head of the victim does not tend to establish this aggravating circumstance. The appellant’s expression of satisfaction at his former wife’s death can be interpreted as an indication of concern over whether she died quickly or lingered and suffered. We hold that the trial court erred in finding that the murder was especially heinous, atrocious, or cruel.

On review of the record we conclude that there was evidence which could have and should have been considered, tending to establish the following two mitigating circumstances:

(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

§ 921.141(6), Pla.Stat. (1975); see Halliwell v. State, 323 So.2d 557 (Fla.1975).

In consideration of these mitigating circumstances, and in view of the fact that no aggravating circumstances were sufficiently established, we hold that the sentence of death imposed by the trial court was improper.

This cause is remanded to the trial court with directions to vacate the sentence of death and to impose a sentence of life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

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

ADKINS, J., concurs in result only.


author: SUNDBERG, Justice. OVERTON, Justice,

text:
    COMMERCIAL CARRIER CORPORATION et al., Petitioners, v. INDIAN RIVER COUNTY et al., Respondents. William Walden CHENEY et al., Petitioners, v. DADE COUNTY, Respondent.
    Nos. 51462, 53178.
    Supreme Court of Florida.
    April 19, 1979.
    Rehearing Denied July 9, 1979.

      Gilbert E. Theissen, of Gerald M. Walsh & Associates, Fort Lauderdale, for Commercial Carrier Corp., et al.
    Alan R. Dakan, of High, Stack, Lazenby & Bender, Miami, for William Walden Cheney et al.
    Robert M. Klein, of Stephens, Schwartz, Lynn & Chernay, P.A., Miami, for Indian River County.
    Alan E. DeSerio, Larry K. White and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for Florida Department of Transportation.
    Steven R. Berger, of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for Dade County-
    Ronald W. Brooks and Michael T. Callahan, of Brooks & Callahan, for Departments of Highway Safety and Motor Vehicles and Offender Rehabilitation, amici curiae.
    Alan E. DeSerio, S. W. Moore, Jerrold K. Phillips and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for Department of Transportation, amicus curiae.
    Robert Orseck, of Podhurst, Orseck & Parks, Miami, for The Academy of Florida Trial Lawyers, amicus curiae.
    Jackson L. Peters, of Knight, Peters, Pickle, Niemoeller & Flynn, Miami, for Dade County School Board, amicus curiae.
   SUNDBERG, Justice.

It is our task today to determine the scope of the waiver of sovereign immunity resulting from the enactment of chapter 73-313, as amended by chapter 74-235, Laws of Florida, section 768.28, Florida Statutes (1975). The issue reaches us by writ of certiorari from two separate decisions of the District Court of Appeal, Third District, which have been consolidated for review by this Court. The first decision, Commercial Carrier Corporation v. Indian River County, is alleged to be in conflict with Gordon v. City of West Palm Beach. The second, Cheney v. Dade County was certified by the district court as involving a question of great public interest. Jurisdiction vests in this Court pursuant to article V, section 3(b)(3), Florida Constitution.

COMMERCIAL CARRIER CORPORATION v. INDIAN RIVER COUNTY

Petitioner, Commercial Carrier Corporation, and its liability insurer, Merchants Mutual Insurance Company, were defendants below in an action for wrongful death arising from the collision of petitioner’s tractor-trailer and decedents’ automobile. The collision occurred at an unmarked intersection in Indian River County at which it is alleged there had previously been a stop sign and pavement markings governing the road upon which petitioner’s vehicle was operating. Petitioner and its liability insurer filed a third-party complaint naming Indian River County and the Florida Department of Transportation (DOT) as third-party defendants. The complaint sought indemnity and contribution for the negligent failure of Indian River County to maintain the stop sign at the intersection, and for the negligent failure of the DOT to paint or replace on the pavement the word “STOP” in advance of the entrance to the intersection. Respondents filed motions to dismiss the complaint, alleging in part that (1) petitioner had failed to comply with the notice requirement of section 768.28(6), Florida Statutes (1975); (2) section 768.28 did not waive the immunity of the state or its agencies from claims for indemnity or contribution; (3) Commercial Carrier had failed to allege the breach of any duty owing to it as opposed to the public at large; and (4) petitioner had failed generally to state a cause of action. The trial court dismissed the third-party complaint, and the District Court of Appeal, Third District, affirmed.

CHENEY v. DADE COUNTY

Julia Ramy filed suit against petitioner Cheney and his liability insurer for damages resulting from an intersection collision on March 14,1975, in Dade County. Petitioner filed a third-party complaint against respondent, alleging that the county had negligently maintained a traffic light at the intersection and that this negligence was the sole cause of the accident. Petitioner pleaded alternatively that he was only passively negligent and thus entitled to indemnity.

Respondent moved to dismiss the complaint on the following grounds: (1) the complaint failed to state a cause of action because the doctrine of sovereign immunity precludes recovery against respondent; (2) petitioner failed to allege knowledge on the part of the respondent as to the malfunctioning of the traffic light; (3) petitioner failed to allege how sovereign immunity had been waived; and (4) petitioner failed to allege compliance with the notice provisions of section 768.28(6), supra. The trial court granted respondent’s motion and dismissed the third-party complaint with prejudice. The District Court of Appeal, Third District, affirmed, holding that no cause of action existed for respondent’s allegedly negligent act.

The operative portion of section 768.28 reads:

(1) In accordance with section 13, Art. X, state constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accord-anee with the general laws of this state, may be prosecuted subject to the limitations specified in this act.

A limitation upon the liability of the state and its agencies and subdivisions is expressed in section 768.28(5):

The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the legislature, but may be paid in part or in whole only by further act of the legislature.

By definition, “state agencies or subdivisions” include “the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.” As a condition precedent to instituting an action on a claim against the state or one of its agencies or subdivisions, the claimant is required to give written notice to the appropriate agency or agencies and the action must be commenced within four years after such claim accrues.

The district court in Commercial Carrier Corporation, supra, asserting that it was unnecessary to discuss the implications of section 768.28, held that it is not actionable negligence for a governmental authority to fail to maintain a traffic control device at a given time and place. Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975), among other cases, was cited as authority for the holding. In Cheney, supra, the same court applied the holding in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967), and concluded that section 768.28 “does not create a liability in the State where the act complained of does not give rise to liability in the agent committing the act, because the duty claimed to be violated is a duty owed to the citizens of the state in general and is not a duty owed to a particular person or persons.” 353 So.2d at 626. By importing a concept of municipal immunity from tort liability the court reasoned that no cause of action existed for the alleged wrong and, therefore, section 768.28 had no application because it was not intended to create a cause of action where none existed at common law prior to its enactment.

Respondents and amici support the decisions of the district court on several grounds. Apart from the reasoning of the court below, they maintain (1) that section 768.28 was intended to make the tort liability of the state and its political subdivisions coextensive, that liability to be measured by the scope of liability of municipal corporations at the time of enactment of the statute; (2) that there can be no tort liability under the act for essentially governmental functions because “private persons” do not perform such functions; and (3) that the acts or omissions complained of are discretionary in nature, thereby immunizing the governmental authority from liability.

Petitioners and other amici assert a much broader scope of operation for section 768.-28, ranging from unlimited liability in tort for all acts or omissions by government to liability at least for those governmental acts and omissions at the operational level which involve no discretion. Each submits that the conduct complained of in the instant cases supports a cause of action even under a limited view of the statute.

While we are not prepared to embrace the notion that all acts or omissions by governmental authorities will subject them to liability in tort under the statute, nevertheless we conclude that the district court has ascribed much too narrow a field of operation to section 768.28. For the reasons articulated below we disapprove the decisions under review.

First, we believe it to be circuitous reasoning to conclude that no cause of action exists for a negligent act or omission by an agent of the state or its political subdivisions where the duty breached is said to be owed to the public at large but not to any particular person. This is the “general duty”-“special duty” dichotomy emanating from Modlin, supra. By less kind commentators, it has been characterized as a theory which results in a duty to none where there is a duty to all. Regardless, it is clear that the Modlin doctrine is a function of municipal sovereign immunity and not a traditional negligence concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity. If this be so, does the Modlin doctrine survive notwithstanding the enactment of section 768.28? We think not.

The state of the law concerning municipal sovereign immunity on the date of enactment of section 768.28 was clearly enunciated in Gordon v. City of West Palm Beach, supra:

1) as to those municipal activities which fall in the category of proprietary functions a municipality has the same tort liability as a private corporation;
2) as to those activities which fall in the category of governmental functions “. . .a municipality is liable in tort, under the doctrine of respondent superi- or, only when such tort is committed against one with whom the agent or employee is in privity, or with whom he is dealing or is otherwise in contact in a direct transaction or confrontation.” City of Tampa v. Davis, Fla.App.1969, 226 So.2d 450;
3)as to those activities which fall in the category of judicial, quasi judicial, legislative, and quasi legislative functions, a municipality remains immune. Hargrove v. Town of Cocoa Beach, supra [96 So.2d 130 (Fla.1957)]; Modlin v. City of Miami Beach, supra.

321 So.2d at 80 (emphasis in original). This patchwork quilt of analysis resulted from a felt need to ameliorate the sometimes harsh results of applying the doctrine of sovereign immunity to activities of municipal corporations. Commencing with Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697 (1922), which authorized recovery for a pedestrian injured by a municipally owned and operated fire truck, this Court distinguished between the city’s governmental functions and its “business, commercial, proprietary” concerns. Thus was the functional test created. If the function was proprietary the city was treated as any nonpublic entity performing a like-type act. If the function was perceived to be purely governmental, however, immunity attached. See Woods v. City of Palatka, 63 So.2d 636 (Fla.1953); City of Miami v. Oates, 152 Fla. 21, 10 So.2d 721 (1942); Peavey v. City of Miami, 146 Fla. 629, 1 So.2d 614 (1941); Rogers v. City of Miami Springs, 231 So.2d 257 (Fla. 3d DCA 1970).

A further refinement of the doctrine denied immunity even for governmental functions where the duty breached by a member of the executive branch was owed specifically to the individual plaintiff as opposed to the public generally. See Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957); Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975), cert. discharged, 339 So.2d 632 (Fla. 1976); City of Tampa v. Davis, 226 So.2d 450 (Fla. 2d DCA 1969); City of Hialeah v. Hutchins, 166 So.2d 607 (Fla. 3d DCA 1964); Simpson v. City of Miami Beach, 155 So.2d 829 (Fla. 3d DCA 1963); Thompson v. City of Jacksonville, 130 So.2d 105 (Fla. 1st DCA 1961). Immunity was always deemed to have existed for legislative, quasi-legislative, judicial and quasi-judicial acts of municipalities. Hargrove v. Town of Cocoa Beach, supra. Although the opinion in Hargrove seemed to signal a substantial relaxation in the scope of sovereign immunity, Modlin, supra, laid to rest any notion that the reach of the opinion extended beyond situations where a “special duty” to the plaintiff was found to exist.

Predicating liability upon the “governmental-proprietary” and “special duty-general duty” analyses has drawn severe criticism from numerous courts and commentators. Consequently, we cannot attribute to the legislature the intent to have codified the rules of municipal sovereign immunity through enactment of section 768.28, Florida Statutes (1975). Even if we were disposed toward respondents’ argument, a plain reading of the statute would deny such a construction. Municipalities are unequivocally included within the definition of “state agencies or subdivisions.” § 768.28(2), Fla.Stat. (1975). Were it the intent of the legislature merely to make the law of municipal sovereign immunity applicable to the state, its agencies and political subdivisions, there would have been no need to include municipalities within the operation of the statute. Consequently, we conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of section 768.28.

What, then, is the scope of waiver contemplated by section 768.28? Respondents assert that all governmental functions are exempt from waiver by the wording of the statute itself. They point to the language contained in section 768.28(1) and (5):

Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.

§ 768.28(1), Fla.Stat. (1975) (emphasis supplied).

The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. .

§ 768.28(5), Fla.Stat. (1975) (emphasis supplied). They argue that since private individuals do not perform governmental functions, there is no waiver where any governmental function is involved. However, this argument has been rejected by the United States Supreme Court in construing the Federal Tort Claims Act. In Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), that Court had occasion to construe the then current version of the federal act, which was almost identical to the Florida act with respect to the language here under consideration. In that case, a tug owner sought recovery under the federal act for damages alleged to have been caused by the negligence of the Coast Guard in the operation of a lighthouse light. To the same argument herein espoused the Court responded:

But the Government contends that the language of § 2674 (and the implications of § 2680) imposing liability “in the same manner and to the same extent as a private individual under like circumstances . . . ” must be read as excluding liability in the performance of activities which private persons do not perform. Thus, there would be no liability for negligent performance of “uniquely governmental functions.” The Government reads the statute as if it imposed liability to the same extent as would be imposed on a private individual “under the same circumstances.” But the statutory language is “under like circumstances,” and it is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his “good Samaritan” task in a careful manner.

350 U.S. at 64-65, 76 S.Ct. at 124. In rejecting the government’s assertion that it was immune from suit the Court also disavowed the notion that the Federal Tort Claims Act incorporated the concept of municipal tort liability:

Furthermore, the Government in effect reads the statute as imposing liability in the same manner as if it were a municipal corporation and not as if it were a private person, and it would thus push the courts into the “non-governmental”“governmental” quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound. The fact of thé matter is that the theory whereby municipalities are made amenable to liability is an endeavor, however awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cuts the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts.

350 U.S. at 65, 76 S.Ct. at 124-125 (footnote omitted). For the same reasons articulated above, we refuse to place such a gloss on our waiver statute. To do so would be to essentially emasculate the act and the salutary purpose it was intended to serve.

Respondents’ final argument poses a more difficult problem. They maintain that the acts complained of involve the exercise of discretion or judgment by governmental officials or employees and, therefore, the performance of such acts or omissions are exempt from operation of ' the statute. Petitioners counter with the assertion that unlike the Federal Tort Claims Act, which contains an express exception for discretionary acts, no exception for such acts is expressed in the Florida statute. The implication is that our legislature had available to it the federal act, as is apparent from certain language borrowed from that legislation, and it made the conscious choice not to provide an exception for discretionary acts. While it cannot be denied that our statute contains no such exception, it does not necessarily follow that all acts or omissions by governmental officials or employees may form the basis for recovery against the governmental authority involved. The absence of a “discretionary exception” in their waiver statute has not precluded several jurisdictions from holding that certain areas of governmental conduct remain immune from scrutiny by judge or jury as to the wisdom of that conduct.

The Court of Appeals of New York in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960), construed that state’s broad waiver of immunity statute so as not to authorize an action by an injured pedestrian who alleged negligence on the part of the City of Buffalo in providing too short a “clearance interval” for the traffic signal lights at the intersection where the injury occurred. New York’s statute contained no “discretionary exception”; nonetheless the court analyzed two lines of authority predating the waiver statute and concluded that certain judgmental decisions by governmental officials may not be the subject of tort liability. One line of cases rested immunity on the policy of maintaining the administration of municipal affairs in the hands of state or municipal executive officers as against the incursion of courts and juries, while the other rested the immunity on the sovereign character of the state or'municipality in the performance of its governmental functions. While the latter cases lost their legal force and effect with the passage of the New York Court of Claims Act, the former retained their vitality because they were not predicated simply upon the premise that the sovereign can do no wrong. They were grounded instead upon a concept of separation of powers which will not permit the substitution of the decision by a judge or jury for the decision of a governmental body as to the reasonableness of planning activity conducted by that body. As articulated by Judge Fuld:

To accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations and to place in inexpert hands what the Legislature has seen fit to entrust to experts. Acceptance of this conclusion, far from effecting revival of the ancient shibboleth that “the king can do no wrong”, serves only to give expression to the important and continuing need to preserve the pattern of distribution of governmental functions prescribed by constitution and statute.

7 N.Y.2d at 586, 200 N.Y.S.2d at 413, 167 N.E.2d at 66.

The state of Washington has also implied a discretionary function exception in its waiver of immunity statute in the absence of an express exception. The case of Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), involved a claim against the state by plaintiffs whose buildings had been destroyed by fire set by an escapee from a state-maintained juvenile correction facility. The allegations of fault on the part of the state related to (i) the maintenance of a certain “open program” (as opposed to close security) at the correction facility; (ii) assignment of the escapee to the “open program”; (iii) assignment of the escapee to a particular type work detail at the facility; and (iv) failure to timely notify local law enforcement agencies of the escape. The state responded that the decisions, acts or omissions complained of involved the exercise of administrative judgment and discretion and could not be properly characterized as tortious conduct. The court recognized that by enactment of the Washington waiver statute the legislature intended to abolish on a broad basis the doctrine of sovereign tort immunity. However, it was concluded that the statute was not as broad as it might have been written. Noting the absence of the varied exceptions found in the Federal Tort Claims Act, the court observed nonetheless that state government was liable for damages only when such damages arise out of “ ‘tor-tious conduct to the same extent as if it were a private person or corporation.’ ” 407 P.2d at 444. It was judged necessary to determine where, in the area of governmental processes, orthodox tort liability stops and the act of governing begins. Id. The court recognized that the legislative, judicial and purely executive processes of government, including discretionary acts and decisions within the framework of such processes, cannot and should not be characterized as tortious. Public policy and maintenance of the integrity of our system of government necessitate this immunity, however unwise, unpopular, mistaken or neglectful a particular decision or act might be. The rationale for this conclusion was stated thus:

The reason most frequently assigned is that in any organized society there must be room for basic governmental policy decision and the implementation thereof, unhampered by the threat or fear of sovereign tort liability, or, as stated by one writer “Liability.cannot be imposed when condemnation of the acts or omissions relied upon necessarily brings into question the propriety of governmental objectives or programs or the decision of one who, with the authority to do so, determined that the acts or omissions involved should occur or that the risk which eventuated should be encountered for the advancement of governmental objectives.” Peck, The Federal Tort Claims Act, 31 Wash.L.Rev. 207 (1956).

Id. at 444 (emphasis in original). After reviewing the characterizations utilized by a number of courts in attempting to ferret out those acts or functions which remain immune from tort liability, the court proposed the following preliminary test:

Whatever the suitable characterization or label might be, it would appear that any determination of a line of demarcation between truly discretionary and other executive and administrative processes, so far as susceptibility to potential sovereign tort liability be concerned, would necessitate a posing of at least the following four preliminary questions: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved.

Id. at 445. Through application of this test the first two grounds asserted for liability were determined to involve acts for which the state was immune. Although the remaining two bases for liability were not adjudged to involve immune conduct, the state was held not to be liable on standard tort principles of lack of foreseeability and causation.

Ohio has reached the same result under its waiver statute, notwithstanding the absence of an express “discretionary” exception. See Harris v. State, 48 Ohio Misc. 27, 358 N.E.2d 639 (1976).

This concept of exemption from tort liability for the exercise of certain governmental functions bottomed on the concept of separation of powers has found expression in at least one prior decision of this Court. In Wong v. City of Miami, 237 So.2d 132 (Fla. 1970), merchants whose property was damaged in connection with a rally which culminated in civil disorder and plundering sued the city and Dade County for negligent handling of the rally. At the request of merchants bordering the rally area, the city increased police protection in the area. Subsequently, on order of the mayor confirmed by an order of the county sheriff, the increased police forces were removed. After the forces were removed the rally got out of hand and participants damaged the neighboring stores in excess of $100,000 before police control could be reestablished.

The plaintiffs filed suit predicated on the theory that removal of the officers was a careless and negligent act. The city responded with a motion to dismiss on the grounds that (i) no sufficient connection was alleged between withdrawal of the officers and the injuries complained of; (ii) police protection was a duty owed the public generally which would not inure to the benefit of particular private citizens; and (iii) removal of officers was within the realm of governmental discretion. The county moved for summary judgment. The trial court granted the motions and dismissed the complaint with prejudice. The District Court of Appeal, Third District, affirmed with one judge dissenting. The dissent, relying on Hargrove, supra, concluded that a special duty was demonstrated. The majority, also applying Hargrove, drew the opposite conclusion and cited for analogy Steinhardt v. Town of North Bay Village, 132 So.2d 764 (Fla. 3d DCA 1961), which dealt with the negligent provision of fire protection.

It is important to note that while this Court discharged the writ of certiorari it took issue with the aspect of the majority decision which impliedly conceded negligence on the part of the city but found it not to be actionable because of sovereign immunity:

While sovereign immunity is a salient issue here, we ought not lose sight of the fact that inherent in the right to exercise police powers is the right to determine strategy and tactics for the deployment of those powers. In the Report of the National Advisory Commission on Civil Disorders, issued pursuant to Executive Order 11365 in 1967, the point was frequently made that police visibility was often an operative factor in the raising of tensions, and that withdrawal from an area could be a highly useful tactical tool for the relaxing of tensions in certain situations. The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence. Here officials thought it best to withdraw their officers. Who can say whether or not the damage sustained by petitioners would have been more widespread if the officers had stayed, and because of a resulting confrontation, the situation had escalated with greater violence than could have been controlled with the resources immediately at hand? If that had been the case, couldn’t petitioners allege just as well that that [emphasis theirs] course of action was negligent?

237 So.2d at 134 (emphasis supplied). This was a clear recognition by the Court of a principle of law apart from the ancient doctrine of immunity as a simple aspect of sovereignty. It represents the distinct principle of law alluded to by Judge Fuld in Weiss v. Fote, supra, which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing.

Hence, we are persuaded by these authorities that even absent an express exception in section 768.28 for discretionary functions, certain policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability. Like the Washington court, we recognize that the identification of these functions will in many instances be difficult. The temptation is strong to fall back on semantic labels for ease of application and seeming certainty. However, we eschew this temptation, as it surely will result in a return to the overly structured and often misleading analysis which persists in the law of municipal sovereign immunity.

A semantic test for identification of discretionary governmental functions which should continue to enjoy immunity was attempted and then disavowed in California, whose statute contains a discretionary exception. For a time, the lower appellate courts in California labored unsuccessfully to develop a dictionary definition of “discretion” which established liability for minor discretionary actions but preserved immunity for high-level decisions. Disavowal of this definitional approach came in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), where the California Supreme Court recognized that all governmental functions, no matter how seemingly ministerial, can be characterized as embracing the exercise of some discretion in the manner of their performance. Consequently, that court opted for an analysis predicated on policy considerations and adopted a test articulated in Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 11 Cal.Rptr. 97, 99, 359 P.2d 465, 467 (1961):

Although it may ,not be possible to set forth a definitive rule which would determine in every instance whether a governmental agency is liable for discretionary acts of its officials, various factors furnish a means of deciding whether the agency in a particular case should have immunity, such as the importance to the public of the function involved, the extent to which government liability might impair free exercise of the function, and the availability to individuals affected of remedies other than tort suits for damages.

As a tool for identifying discretionary acts under the Federal Tort Claims Act the federal courts, commencing with the decision in Dalehite v. United States, supra, have developed an analysis which distinguishes between decisions made at the “planning level” and those at the “operational level.” Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy. Johnson v. State, supra, likewise employed the planning-operational distinction as an aid to isolate those discretionary functions of government which should be immune from tort liability. The Johnson court was not unmindful of the deficiencies inherent in such an analysis, but perceived that the lack of certainty and predictability of such approach was overridden by its emphasis on the considerations behind the rule of governmental immunity:

We recognize that this interpretation of the term “discretionary” presents some difficulties. For example, problems arise in attempting to translate this concern for the court’s role in the governmental structure into an applicable touchstone for decision. Our proposed distinction, sometimes described as that between the “planning” and “operational” levels of decision-making (cf. Dalehite v. United States, supra, 346 U.S. 15, 35-36, 73 S.Ct. 956, [97 L.Ed. 1427]), however, offers some basic guideposts, although it certainly presents no panacea. Admittedly, our interpretation will necessitate delicate decisions; the very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court’s ability to reexamine it. Despite these potential drawbacks, however, our approach possesses the dispositive virtue of concentrating on the reasons for granting immunity to the governmental entity. It requires us to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.

73 Cal.Rptr. at 248-249, 447 P.2d at 360-61 (footnote omitted).

Alaska and Hawaii have adopted a similar construction of discretionary function immunity under their respective waiver statutes. State v. Abbott, 498 P.2d 712 (Alaska 1972); Rogers v. State, 51 Hawaii 293, 459 P.2d 378 (1969). The Utah Supreme Court cited Johnson in a case with substantially the same facts as Rogers and reached a similar conclusion. Carroll v. State, 27 Utah 2d 384, 496 P.2d 888 (1972). Minnesota has held that deployment of police and fire departments during riots falls within the discretionary function exception. Silver v. City of Minneapolis, 284 Minn. 266, 170 N.W.2d 206 (1969).

So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain “discretionary” governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance. In order to identify those functions, we adopt the analysis of Johnson v. State, supra, which distinguishes between the “planning” and “operational” levels of decision-making by governmental agencies. In pursuance of this case-by-case method of proceeding, we commend utilization of the preliminary test iterated in Evangelical United Brethren Church v. State, supra, as a useful tool for analysis.

Recurring, then, to the instant cases. It is apparent that the maintenance of a traffic signal light which is in place does not fall within that category of governmental activity which involves broad policy or planning decisions. This is operational level activity. So too is the proper maintenance of a traffic sign at an intersection and the proper maintenance of the painted letters “STOP” on the pavement of a highway. As asserted by Commercial Carrier Corporation in its brief (main brief at 17), the gravamen of that petitioner’s complaint is the failure of the county and Department of Transportation to maintain existing traffic control devices which had been in place. We do not deal in these cases with the issue of whether or not, or what type of, traffic control devices should have been installed at the particular intersections. Accordingly, we express no opinion with respect to whether liability could be imposed on the governmental bodies involved for failure in the first instance to place traffic control devices at the intersections.

We must also address two additional procedural issues raised in these consolidated cases. The first is whether section 768.28 contemplates waiver of immunity for actions based on contribution or indemnity. The second deals with the notice provisions of the statute.

Regarding the first issue, respondents maintain that waiver is limited to direct tort actions against the state and its agencies and subdivisions. However, this assertion has been clearly rejected by the federal courts in interpreting the Federal Tort Claims Act. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951); Certain Underwriters at Lloyd’s v. United States, 511 F.2d 159 (5th Cir. 1975). Like the federal courts, we find no logical reason to limit application of our waiver statute to direct actions. Actions for contribution or indemnity grounded on the tortious conduct of the state or its agencies and subdivisions are no less tort claims for purposes of section 768.28 than direct actions. Cf. Village of El Portal v. City of Miami Shores, Florida, 362 So.2d 275 (Fla. 1978).

As to the second issue, we agree with the respondents that the third-party complaints were deficient from the standpoint of properly alleging compliance with the notice provisions of section 768.28(6), Florida Statutes (1975). Compliance with that subsection of the statute is clearly a condition precedent to maintaining a suit. Crumbley v. City of Jacksonville, 102 Fla. 408, 135 So. 885 (1931); High v. City of Jacksonville, 51 Fla. 207, 40 So. 1032 (1906). Consequently, the performance of the condition should be alleged in the complaint in accordance with Florida Rule of Civil Procedure 1.120(c). In Cheney, there was no allegation of statutory compliance. In Commercial Carrier Corporation, it was alleged that proper notice had been given to both governmental defendants, but there was no allegation that timely written notice was given to the Department of Insurance as is also required by section 768.28(6). Nonetheless, failure of the pleadings in this regard does not call for dismissal with prejudice. In view of our holdings herein, the third-party complaint in each case should have been dismissed with leave to amend.

Accordingly, the petitions for writ of cer-tiorari are granted, the decisions of the District Court of Appeal, Third District, are quashed, and these consolidated cases are remanded to the district court with directions to remand to the trial court for proceedings not inconsistent with this decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, HATCHETT and ALDERMAN, JJ., concur.

OVERTON, J., dissents with an opinion, with which BOYD, J., concurs.

OVERTON, Justice,

dissenting.

I dissent. By allowing a negligence action against the state and county for failure to properly maintain a public roadway, the majority opinion, in my view, contravenes the legislative intent and purpose of section 768.28, Florida Statutes (1975). The majority accepts the legal principle that there can be no action against the state or county unless the legislature has authorized it. Although politically this type of legal action against the state may be desirable, it is not permissible under the provisions of the statute adopted by the legislature.

The subject statute expressly provides that it applies only “under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant . . . ” section 768.28(1) (emphasis added), and “The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances . . . .” section 768.-28(5) (emphasis added).

The effect of the majority opinion is to allow negligence claims against the state and counties for failure to properly maintain miles of interstate and primary state and county roads. I am unable to accept the premise required by the majority that the failure to timely fix a traffic light, the failure to put a stop sign in place, and the failure to repaint “STOP” on the pavement of a highway are “circumstances” for which a “private person” would be liable. Common sense dictates that the maintenance of thousands of miles of public roadways is not the kind of activity which private individuals engage in, but is uniquely governmental in nature.

Without question, this is a perplexing and inconsistent area of the law, not only in this jurisdiction but in other jurisdictions in the nation as well. Illustrative are the decisions of the United States Supreme Court in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), and Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). In Dalehite, the United States Supreme Court held that the negligence of the Coast Guard in failing to prevent a catastrophic fire by regulating the storage of a potentially explosive fertilizer and by its negligent failure to properly fight the fire after it had started was outside the parameters of the federal tort claims act. On the other hand, in Indian Towing Co., the same Court, without receding from Dalehite, held that the negligence of the Coast Guard in the operation of a lighthouse was a proper action under the act. The majority accepts the reasoning of the United States Supreme Court in the latter decision and analogizes it to the facts in the instant cases. It is difficult, however, to reconcile Indian Towing Co. with Dalehite, and I would not use one as a basis for ascertaining the intent of the legislature in adopting section 768.28, Florida Statutes (1975).

The majority also rejects the argument that the use of funds for the maintenance of public roadways is a discretionary function and, therefore, immune from liability. This is, in my view, a legitimate contention. The availability of such funds is established by appropriation formulas, and discretionary decisions must be made as to the maintenance projects which can be accomplished with available funds. The majority opinion in effect says a judge or jury can override that discretionary decision.

For the reasons expressed, I would affirm the district court’s decisions because I discern no legislative intent to allow recovery under section 768.28, Florida Statutes (1975), for the negligent maintenance of public roadways.

BOYD, J., concurs.

      . We do not deal here with personal immunity of individual officers acting in their official capacity. This distinct principle of law is explored in cases such as McNayr v. Kelly, 184 So.2d 428 (Fla. 1966), and Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th DCA 1975).

      . 342 So.2d 1047 (Fla. 3d DCA 1977).

      . 321 So.2d 78 (Fla. 4th DCA 1975).

      . 353 So.2d 623 (Fla. 3d DCA 1977).

      . § 768.28(2), Fla.Stat. (1975).

      . § 768.28(6), Fla.Stat. (1975).

      .§ 768.28(12), Fla.Stat. (1975).

      . E.g., Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152 (1964); K. Davis, Administrative Law of the Seventies § 25.07 (1976); W. Prosser, Law of Torts % 131 (1976); 43 Mo.L.Rev. 387, 388 (1978); 57 Ore.L.Rev. 478, 479 n.6.

      . The relevant provisions of the Federal Tort Claims Act were 28 U.S.C. §§ 1346(b) and 2674 (1951):
      § 1346(b) . . . [T]he district courts . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
      § 2674. The United States shall be liable . in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

      . 28 U.S.C. § 2680(a) (1975).

      . “Of course, it is not a tort for government to govern . . . . ” Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 979, 97 L.Ed. 1427 (1953) (Jackson, J, dissenting).

      . See Note, The Discretionary Function Exception to Government Tort Liability, 61 Marq. L.Rev. 163, 168 (1977).

      . Although the Dalehite opinion suggested that implementation of policy is also immune, this premise has never been adopted by the state courts and has been limited by subsequent federal decisions. See Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo.L.J. 81 (1968); 61 Marq.L.Rev. at 170.

      . Cheney, supra.

      . Commercial Carrier Corporation, supra.