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

text:
    Lenson HARGRAVE, Appellant, v. STATE of Florida, Appellee.
    No. 48135.
    Supreme Court of Florida.
    June 30, 1978.
    Rehearing Denied Feb. 6, 1979.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on direct appeal from a conviction of murder in the first degree and a sentence of death imposed by the Circuit Court for Dade County, Florida. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

In the early evening of May 19, 1974, appellant committed a robbery at a U-Tote-M Store in Miami. In a statement which appellant later gave to police officers, he described what transpired at the scene of the crime. When appellant entered the store, only the clerk was present. Appellant announced his intention to rob the store and ordered the clerk to relinquish the money in the cash register. The clerk’s attempt to comply proved futile when the register jammed. His demand not met, appellant shot the employee twice in the chest. He then endeavored to open the cash register himself but was unable to do so. Thereupon, a customer walked in. Appellant diverted him without arousing suspicion. When the customer exited, appellant proceeded to shoot his victim for the third time. Appellant later claimed that he fired the third shot from a fear of being apprehended.

After the killing, at a nearby parking lot, appellant met a friend, Lawrence Karge, who had previously been employed at the U-Tote-M Store in which the robbery and murder of the cashier occurred. Karge had planned the robbery with Hargrave and had given appellant detailed information about the store’s alarm and security devices. Karge drove Hargrave home, where the appellant remained for a short time before leaving for his job as a night security guard.

Approximately seven months later, an informant named Terry Morton contacted the Miami Police Department relative to the U-Tote-M Store homicide. Both Karge and appellant, on separate occasions, had told the informant about the homicide.

Two days after receiving this information, the police placed the respective residences of Karge and Hargrave under surveillance. Shortly thereafter a vehicle which contained the two suspects was stopped. Appellant was taken to the homicide office where he waived his Miranda rights and signed a statement confessing to the killing and identifying the location of the murder weapon.

At a suppression hearing, appellant’s counsel sought to prevent admission of both the inculpatory statement and the murder weapon as the fruits of an illegal arrest. The trial court found the confession voluntary. Both items were admitted into evidence. At the conclusion of the trial, the jury found Hargrave guilty of first degree murder.

At the penalty trial, testimony was received from both state and defense witnesses which suggested that the appellant was mentally deficient, insecure, and fearful. The State also produced two witnesses— Karge’s girlfriend and the informant’s sister — who testified that the appellant had told each of them that he had killed someone before, and that it would not bother him to kill again.

The jury returned an advisory sentence of death. At a sentencing hearing before the judge on July 18, 1975, defense counsel moved that the court order a presentence report pursuant to Fla.R.Crim.P. 3.710. Defense counsel proffered the fact that the instant conviction was the defendant’s first felony conviction. The motion was denied. The trial judge entered the following judgment imposing the death penalty.

THIS CAUSE CAME on before the Court for trial by Jury, and after deliberations a verdict was rendered, finding the defendant guilty of Murder in the First Degree.
Thereafter, the defendant was adjudicated guilty by the Court, and the jury after hearing additional matters, retired to consider an advisory sentence pursuant to Florida Statute 921.141(2). The majority returned and in open court recommended that this Court impose the death penalty upon the defendant.
This Court, independent of, but in agreement with, the advisory sentence rendered by the jury does hereby impose the death penalty upon the defendant LENSON A. HARGROVE, [sic] and in support thereof as required by Florida Statute 921.141(3), submits this, its written findings upon which the sentence of death is based.
The findings of the Court are as follows:
1. That the aggravating circumstances found by the Court to be present and listed by the Court with the lettering as set forth in Florida Statute 921.141(5), are as follows:
(d) That the capital felony was committed while the defendant was engaged in the attempt to commit a robbery.
(e) That the capital felony was committed for the purpose of avoiding or preventing a lawful arrest.
(f) That the capital felony was committed for pecuniary gain.
(h) That the capital felony was especially heinous, atrocious or cruel, in that, after initially shooting the victim and while the victim lay helplessly bleeding on the floor, the defendant deliberately leaned over the counter and shot the victim in the head.
2. That none of the remaining aggravating circumstances, set out by statute to be considered, were proved beyond a reasonable doubt.
3. That as to mitigating circumstances, the Court finds as follows:
(a)That there is some evidence of prior criminal activity on the part of the defendant; however, there have been no prior convictions so that it must fairly be said that the defendant has no significant history of criminal activity.
(b) That the defendant was not under the influence of extreme mental or emotional disturbance when the capital felony was committed.
(c) That the victim was not a participant in the defendant’s conduct nor did he consent to his acts.
(d) That the defendant was not merely an accomplice in the capital felony committed by another person and that his participation was not relatively minor.
(e) That the defendant did not act under extreme duress or under the substantial domination of another person.
(f) That although there is some evidence of a personality defect in the defendant and some possibility of an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, the Court finds that such capacity was not substantially impaired.
(g) That the age of the defendant at the time of the crime, that is, a few days less than 19 years, is a mitigating circumstance; however, he was, at the time of the crime, self-supporting as an adult being employed by a security company. The Court finds that the defendant is of average intelligence or possibly slightly less than average intelligence.
4. It may be, as alleged by the defense, that there could be some doubt as to whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired to some degree. There is no doubt that the defendant has a history of some mental abnormalities which may yet be affecting the defendant; however, it is the finding of the Court that such abnormalities only constitute a personality defect. A great number, possibly a majority of all persons who commit crimes, also have this or a similar type of personality defect.
5. The Court is in agreement with the Jury that the aggravating circumstances in this case outweigh the mitigating circumstances. Therefore, the Court has no choice under the law but to impose the death penalty upon the defendant, LEN-SON A. HARGRAVE.
WHEREFORE, IT IS,
ORDERED AND ADJUDGED as follows:
1. That you, LENSON A. HAR-GRAVE, be, and you are hereby sentenced to death.
2. That you are hereby remanded to the custody of the Dade County Department of Corrections to be conveyed to the State Division of Corrections for execution of this sentence according to law.
DONE AND ORDERED in open Court, at Miami, Dade County, Florida, this 18th day of July, A.D., 1975.
/s/ GENE WILLIAMS CIRCUIT JUDGE

On this appeal appellant urges three points for reversal. Each relates only to the sentence imposed. We restate the points in the order of our treatment of them: (i) whether the imposition and execution of the sentence of death under Section 921.141, Florida Statutes (1975), constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution; (ii) whether the trial court erred in sentencing the defendant without the benefit of a presentence investigation report as requested by defense counsel; and (iii) whether the trial court erred in imposing the death penalty. Before directing our attention to the specific points raised by appellant, we note that pursuant to Fla.App.Rule 6.16 b. we have reviewed the evidence to determine if the interests of justice require a new trial. We conclude that the verdict and the judgment of guilt do not fail for insufficiency of the evidence. Implicit in this determination is our concurrence in the ruling by the trial court upon the motion to suppress.

With respect to the first issue raised, this Court’s decision in State v. Dixon, 283 So.2d 1 (Fla.1973), and the decision of the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), are dispositive.

To the same extent, our decision in Thompson v. State, 328 So.2d 1 (Fla.1976), determines adversely to appellant his assertion that the trial court was required by Fla.R.Crim.P. 3.710 to request a presentence investigation before sentencing Hargrave. In Thompson this Court concluded, essentially, that upon return of a verdict of guilty in a first degree murder case the discretion of the trial judge is limited to two alternatives, i. e., death or life imprisonment. Probation is not a sentence alternative and, therefore, the second sentence of Fla.R.Crim.P. 3.710 is inapplicable in a death case. The import of the mandatory provisions of Rule 3.710 is made clear by the fact that it exempts ,the necessity for a presentence investigation report for first felony offenders and those under age 18 where probation has already been determined by the judge to be the appropriate sentence. Furthermore, that the failure of the trial court to order an investigation was not prejudicial to appellant is apparent from the face of the sentencing judgment. The trial court did not find as an aggravating circumstance that appellant had previously been convicted of another capital felony or of a felony involving the use or threat of violence to another person. Rather the trial court found in mitigation that although there was some evidence of prior criminal activity on the part of the defendant, there were no prior convictions “so that it must fairly be said that the defendant has no significant history of criminal activity.”

We come now to that part of our function of review under this State’s death statute which is different from the scope of this Court’s review in all other proceedings. We are mandated by Section 921.141(4), Florida Statutes (1975), automatically to review not only the judgment of conviction, but also the sentence of death. As pointed out in Proffitt v. Florida, supra, the final review of sentence in this Court supplies the channeled discretion and deliberation necessary to avert the constitutional deficiencies condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, this Court’s role is not and should not be to cast aside that careful deliberation which the matter of sentence has already received by the jury and the trial judge, unless there has been a material departure by either of them from their proper functions prescribed by Section 921.-141, Florida Statutes (1975), or unless it appears that in view of other decisions concerning imposition of the death penalty the punishment is too great. State v. Dixon, supra.

In the instant case appellant maintains there has been just such a departure by the trial judge in (i) finding two aggravating circumstances arising out of the single act of attempted robbery (those set forth in Section 921.141(5)(d) and (f), Florida Statutes [1975]); (ii) finding that the capital felony was especially heinous, atrocious, or cruel; and (iii) failing to find the existence of three mitigating circumstances disclosed by the evidence. The asserted mitigating circumstances are: (a) Section 921.141(6)(b) —defendant was under an extreme mental or emotional disturbance; (b) Section 921.-141(6)(f) — the defendant’s capacity to conform his conduct to the requirements of law or appreciate the criminality of his act was substantially impaired; and (c) Section 921.-141(6)(e) — defendant was substantially dominated by another person.

We deal first with the aggravating circumstances. Although Provence v. State, 337 So.2d 783 (Fla.1976), condemns the doubling up of the aggravating circumstances of pecuniary gain each time a crime such as robbery is concerned, the mere recitation of both circumstances does not in all cases call for a condemnation of the sentencing hearing and judgment. As State v. Dixon, supra, teaches us, the statute does-not comprehend a mere tabulation of aggravating versus mitigating circumstances to arrive at a net sum. It requires a weighing of those circumstances. Absent the circumstance of pecuniary gain, there were ample other statutory aggravating circumstances to place on the scale to weigh against the valid mitigating circumstances.

Appellant questions the trial court’s finding of one of those additional aggravating circumstances when he states that it is improper under several of our earlier decisions to characterize this capital felony as especially heinous, atrocious, or cruel. The trial judge made this finding predicated upon the defendant’s act of deliberately shooting the victim in the head after he had already rendered him helpless by shooting him twice in the chest. In more common terms, the appellant in a calculated fashion “executed” the victim to avoid later identification. A short colloquy from the appellant’s inculpatory statement is instructive on this point:

DETECTIVE MAJOR: “When you shot the clerk the third time, did you intend to kill him?”
THE DEFENDANT: “Yes, I did.”
DETECTIVE MAJOR: “Why did you want to kill the clerk?”
THE DEFENDANT: “Because I was scared, and I was aggravated.”
DETECTIVE MAJOR: “Why were you scared?”
THE DEFENDANT: “I was afraid I was going to get caught.”

To this may be added the testimony of Karge’s girlfriend and Morton’s sister who stated that appellant had told each of them that he had killed someone before, and it would not bother him to kill again. The sum of all this evidence justifies a finding that the appellant’s act of firing the third shot into the head of the victim was “extremely wicked or shockingly evil.” See Alford v. State, 307 So.2d 433, 444 (Fla.1975); State v. Dixon, supra.

Returning to appellant’s argument that the trial judge erred in failing to find the mitigating circumstances delineated above, we respond that the jury and the judge could have resolved the evidence in favor of appellant’s position, but neither was compelled to do so. We are not here dealing with a case where either the jury or the court considered matters it should not have considered or failed to consider matters it should have considered. Appellant simply disagrees with the force and effect given to the testimony of a psychologist and a psychiatrist at the sentencing hearing. The trial judge conscientiously assessed the testimony of the experts and found that although there was “some evidence of a personality defect in the defendant and some possibility of an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, the Court finds that such capacity was not substantially impaired.” (Emphasis supplied) The trial judge further observed that appellant is of average intelligence or possibly slightly less than average intelligence. It is apparent, then, that the trial judge did not ignore or fail to consider the psychological evidence bearing on mitigation. Obviously, he and the jury were not persuaded that it provided a sound basis for establishment of the statutory mitigating circumstances.

The proposition that appellant was under the domination of Karge is in the same posture. Although the defense psychiatrist offered evidence that Hargrave could be dominated, and although appellant’s mother testified that her son was dominated by Karge, the State’s psychologist, who tested both Hargrave and Karge, concluded that appellant “certainly played the dominant role.” Clearly the jury and the judge who heard the testimony resolved the conflict against the appellant.

In the performance of our constitutional duty, we have reviewed the same testimony and evidence upon which the trial judge and jury based their conclusions. We cannot say that the judgment reached by them is at material variance with our interpretation of the evidence, nor is it contrary to law. Accordingly, the judgment of conviction and the sentence of death are hereby affirmed.

It is so ordered.

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

BOYD and HATCHETT, JJ., concur in part and dissent in part with opinions.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion affirming appellant’s guilt. The aggravating circumstances found by the trial court are supported by evidence in the record.

As to mitigating circumstances, the trial judge found two: (a) Hargrave’s youth at the time of the crime (he was eighteen), Section 921.141(6)(g), and (b), no significant history of prior criminal activity, Section 921.141(6)(a). As recognized by the majority, there might be added, since there is competent evidence of them in the record, two other mitigating circumstances: that Hargrave’s appreciation of the criminality of his conduct was substantially impaired, Section 921.141(6)(f), and that he was under the substantial domination of another person, Section 921.141(6)(e).

In my opinion the quality of the two mitigating circumstances measured against the aggravating circumstances tips the sentencing scale in favor of life. The balance is more clearly in favor of life if the two mitigating circumstances not found by the trial judge, but which have so.me support in the record, are considered.

I would reduce the sentence to life imprisonment without eligibility for parole for twenty-five years.

HATCHETT, Justice,

concurring in part and dissenting in part.

I concur in the conviction but agree with appellant that the trial judge committed error in sentencing him without benefit of a presentence investigation report and would return the case to the trial court for resen-tencing.

Florida Rule of Criminal Procedure 3.710 provides:

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

The rule clearly requires a judge to order a presentence investigation report in all cases where a defendant has not previously been convicted of a felony. Harden v. State, 290 So.2d 551 (Fla. 1st DCA 1974); Mitchum v. State, 292 So.2d 620 (Fla. 1st DCA 1974); Still v. State, 296 So.2d 67 (Fla. 1st DCA 1974); Nordone v. State, 307 So.2d 907 (Fla. 3rd DCA 1975); Lopes v. State, 309 So.2d 591 (Fla. 2nd DCA 1975); Buckles v. State, 310 So.2d 748 (Fla. 1st DCA 1975); Grubbs v. State, 311 So.2d 411 (Fla. 2nd DCA 1975); Davenport v. State, 317 So.2d 851 (Fla. 1st DCA 1975); Beverly v. State, 330 So.2d 527 (Fla. 1st DCA 1976). The record shows that appellant had no prior felony convictions. He was thus entitled to the benefit of a presentence investigation.

Relying on Thompson v. State, supra, the majority holds that once the jury returns a verdict of first degree murder the trial court is exempt from the mandatory pre-sentence requirements of the rule. The court in Thompson based its decision on the committee note following the rule:

The rule provides for the utilization of a presentence report as part of the sentencing process. While use of the report is discretionary in all cases, it is mandatory in two instances, the sentencing of a first felony offender and of a defendant under 18 years of age. Of course, no report is necessary where the specific sentence is mandatory, e. g., the sentence of death or life imprisonment in a verdict of first degree murder, (emphasis added)

This comment was written in 1972, prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and prior to enactment of Section 921.141, Florida Statutes (1973). In 1972, the sentence of death in a capital case was, as the comment states,.mandatory in the absence of a recommendation of mercy by the jury. In cases in which the jury recommended mercy, life imprisonment was mandatory. Our present capital punishment scheme places in the trial judge discretion he did not have at the time the rule was promulgated. The comment based on the old statute is no longer valid.

The majority holds “probation is not a sentence alternative, and therefore the second sentence of Fla.R.Crim.P. 3.710 is inapplicable in a death case.” The rule itself is not limited to cases in which probation is an alternative. It does not dictate how many or what kind of sentencing alternatives the trial judge must have. It speaks only in terms of “discretion as to what sentence may be imposed.” Florida judges* now have discretion (reasonable and controlled) as to what sentence may be imposed in a capital case. State v. Dixon, 283 So.2d 1 (1973). This is all that is required to trigger the rule. We so held in Swan v. State, 322 So.2d 485 (Fla.1975) at 488:

P.S.I. reports are provided for in Fla.R. Cr.P. 3.710. Rule 3.710 vests the trial court with the discretionary power to request a P.S.I. report in cases wherein the trial court possessed discretion as to the imposition of sentence. Section 921.141, Florida Statutes, vests the trial court with the limited discretion to impose either the death penalty or life imprisonment even if the jury recommends to the contrary. Thus, the discretionary nature of Section 921.141 brings it within the ambit of Rule 3.710.

The position taken by the majority, in its reliance on Thompson, suggesting that there is no sentencing discretion left in the trial judge raises serious questions concerning the constitutionality of our present statute. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Thompson should be overruled, not followed, in order to prevent any doubt as to the constitutionality of our statute.

In imposing sentence in a capital case, the fundamental respect of humanity underlying the Eighth Amendment requires the trial judge to take into consideration the character and record of the defendant as well as the offense for which he was convicted. Woodson v. North Carolina, supra. Practically speaking, at a time when state attorneys are seeking the means to pay witness fees for witnesses to travel from one county to another where there has been a change of venue, when public defenders are hard pressed to get funds for depositions, it is unrealistic to believe that a defendant facing sentence without the benefit of presentence investigation reports will be able to present to the sentencing judge out of state school reports, health records, or other favorable information regarding his character and record.

The rule as construed by the majority requires a presentence investigation report for all offenders under 18 years of age or convicted of a first felony offense, except those convicted of first degree murder. If presentence investigation reports are to be mandatory for anyone, surely they should be mandatory where one faces the ultimate penalty.

      . Even the trial judge had second thoughts about the “substantial impairment” circumstance. See Finding No. 4, p. 3, of the majority opinion.

       Section 921.141, Fla.Stat. (1971) states in pertinent part:
      (1) Recommendation to mercy. — A defendant found guilty by a jury of an offense punishable by death shall be sentenced to death unless the verdict includes a recommendation to mercy by the jury. When the verdict includes a recommendation to mercy by the jury, the court shall sentence the defendant to life imprisonment.


source: Caselaw Access Project

author: ALDERMAN, Justice. ADKINS, Justice,

license: Public Domain

text:
    Robert J. HAMILTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 51812.
    Supreme Court of Florida.
    Oct. 12, 1978.
    Rehearing Denied Jan. 29, 1979.

      William C. Gregg, III, and Carleton L. Weidemeyer of Wightman, Weidemeyer, Jones, Turnbull & Cobb, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   ALDERMAN, Justice.

The defendant was charged, tried, convicted and sentenced for the unlawful sale and possession of more than five grams of cannabis. He appeals directly to the Supreme Court because the trial court, in denying his motion to dismiss the charges against him, inherently passed upon and upheld the constitutional validity of that part of Section 893.13, Florida Statutes (1976 Supp.), which makes unlawful the sale and possession of cannabis. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

The primary question is whether that part of Section 893.13 in question denies the defendant equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution and Article I, Sections 2 and 9 of the Florida Constitution. Other questions raised include whether the relevant portion of Section 893.13 constitutes cruel and unusual punishment, whether the defendant was denied a fair and impartial trial, whether the trial court erred in permitting the prosecution chemist to testify that a vegetable matter tested was cannabis and whether the trial court erred in refusing to grant acquittal where the State failed to prove that the cannabis tested was of the species Cannabis Sativa L. We find that inclusion of cannabis within the statutorily prohibited class defined in Section 893.13 is not arbitrary and irrational and does not render this statute violative of the equal protection clauses of the Federal and Florida Constitutions. We likewise find that defendant’s other points on appeal are without merit.

Utilizing the rational relationship test, the defendant contends that he has been denied equal protection of the law. He claims that, through proffered evidence, he affirmatively demonstrated that the inclusion of cannabis with dangerous hallucinogens, amphetamines and methampheta-mines, barbiturates, narcotics and hypnose-datives for the purpose of imposing punishment is arbitrary and irrational because the effects of such substances are extremely harmful and completely different from those of cannabis. He claims that he established a properly developed record to show that the statute proscribing cannabis violates equal protection of law. He points out that, although the trial judge refused to consider his proffered testimony in denying the motion to dismiss, the trial court did permit the proffer in order to perfect the record for appeal. The defendant also cites decisional authority from other jurisdictions in support of his contentions, e. g. Downey v. Perini, 518 F.2d 1288 (6th Cir. 1975); State v. Anonymous, 32 Conn.Sup. 324, 355 A.2d 729 (1976); Ravin v. State, 537 P.2d 494 (Alaska 1975); People v. Griffin, 39 Mich.App. 464, 198 N.W.2d 21 (1972); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); Sam v. State, 500 P.2d 291 (Okl.Cr.App.1972); State v. Carus, 118 N.J. Super. 159, 286 A.2d 740 (1972); People v. Waxman, 388 Mich. 774, 200 N.W.2d 21 (1972); People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971); State v. Zornes, 78 Wash.2d 9, 469 P.2d 552 (1970).

It is axiomatic that doubts as to the validity of a statute will be resolved in favor of its constitutionality. Golden v. McCarty, 337 So.2d 388 (Fla.1976). Legislative action exercised under the police power is valid if its exercise is confined to those acts which may be reasonably construed as expedient for protection of the public health, safety, welfare or morals. Newman v. Carson, 280 So.2d 426 (Fla.1973). The Legislature has a great deal of discretion in determining what measures are necessary for the public’s protection, and this Court will not, and may not, substitute its judgment for that of the Legislature insofar as the wisdom or policy of the act is concerned. Holley v. Adams, 238 So.2d 401 (Fla.1970); State v. Reese, 222 So.2d 732 (Fla.1969).

Our duty in the present case is to determine whether the act contravenes the equal protection clause of the Constitution. We must, therefore, decide whether there continues to be a rational basis for the classification of cannabis with hallucinogens, amphetamines, methamphetamines, barbiturates, narcotics and hypnosedatives for purpose of punishment or whether this classification is arbitrary and, therefore, unconstitutional. See Laird v. State, 342 So.2d 962 (Fla.1977). The Supreme Court of the United States, in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1910), succinctly pronounced the elements of the rational basis test as follows:

1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. [Cases cited.] 220 U.S. 78-79, 31 S.Ct. at 340. [Emphasis supplied.]

We find that defendant has failed to prove that there is no rational basis for the statute in question. There continues to be authority supporting the position that the health hazards of cannabis justify its proscription and its present classification. Although there is substantial expert opinion to the contrary, the fact that there continues to be expert opinion supporting the reasons which prompted the Legislature to enact this statute is sufficient to constitute a continuing rational basis for the act.

The Missouri Supreme Court, in State v. Mitchell, 563 S.W.2d 18 (Mo.1978), recently upheld the constitutionality of Missouri’s cannabis statutes. The court said:

Although he [the defendant] has directed the court’s attention to numerous studies which comment on the harmlessness of marihuana, there are, however, other authorities which take a contrary view regarding the hazards involved in using marihuana. The present state of knowledge of the effects of marihuana is. still incomplete and is marked by much disagreement and controversy. In United States v. Carolene Products, [304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234] supra, the court stated at 153-154, 58 S.Ct. at 784: “Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry . . . . But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” A body of knowledge does exist upon which the legislature could have rationally relied in deciding to classify marihuana in schedule I. In light of the fact that we are dealing with a debatable medical issue, we cannot conclude that the legislature acted arbitrarily or irrationally in placing marihuana in schedule I. .

We agree with the rationale of the Missouri court and find it equally applicable to the cause before us. Defendant has failed to prove that the present classification of cannabis does not rest upon any reasonable basis. Cf. Raines v. State, 225 So.2d 330 (Fla.1969); Borras v. State, 229 So.2d 244 (Fla.1969). As long as there is any reasonable doubt as to the effects of cannabis which affect its classification, these doubts will be resolved in favor of the validity of the legislative classification.

Defendant next contends that the penalties relating to sale and possession of cannabis constitute cruel and unusual punishment. His position is primarily based on his previous argument that cannabis has been arbitrarily and irrationally classified. The determination of penalties to be imposed is a legislative concern. Discussing the meaning of cruel and unusual punishment and the role of the judiciary in evaluating a constitutional assault upon a statute based upon the prohibition of cruel and unusual punishment, the Supreme Court of the United States, in Gregg v. Georgia, 428 U.S. 153, 174-175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859, said:

. [I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. “In a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.”

We find that the punishment provided for the sale and possession of cannabis by Section 893.13 does not violate the constitutional proscription against cruel and unusual punishment. Cf. Banks v. State, 342 So.2d 469 (Fla.1976).

The defendant also alleges that, he was denied a fair and impartial trial because the trial judge commented on the evidence, chastized counsel, intimidated the jury and participated in examination of the witnesses. There is no basis for this contention. From our review of the record, we find that the trial judge was only exercising reasonable control over the trial and did not pass beyond the bounds of neutrality or impartiality. See Watson v. State, 190 So.2d 161 (Fla.1966), cert. den. 389 U.S. 960, 88 S.Ct. 339, 19 L.Ed.2d 369.

Finally, we conclude that the court did not err in allowing the state’s expert witness, a chemist, to testify that the vegetable matter which she tested was cannabis or in refusing to grant a judgment of acquittal where the state failed to prove that the species of cannabis tested was Cannabis Sativa L. Nelson v. State, 319 So.2d 154 (Fla. 2d DCA 1975); Walker v. State, 318 So.2d 519 (Fla. 3d DCA 1975).

Accordingly, we affirm the judgment and sentence of the trial court.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

We agree that a law creating classifications without a rational basis denies equal protection. There must be more than a hypothetical rational basis for a classification.

This Court has interpreted the Florida Constitution to require a “valid and substantial reason for classifications.” Moore v. Thompson, 126 So.2d 543 at 548 (Fla.1961); accord, Henderson v. Antonacci, 62 So.2d 5 at 9 (Fla.1952). The requirement has also been termed one for “reasonable justification”, State ex rel. Gerstein v. Hialeah Race Course, Inc., 245 So.2d 53 at 57 (Fla.1971), or “a just, fair and practical basis” for the classification “based on a real difference which is reasonably related to the subject and purpose of the regulation”, Newman v. Carson, 280 So.2d 426 at 429 (Fla.1972). See also, State v. Lee, 356 So.2d 276 (Fla.1978); United Gas Pipe Line Co. v. Bevis, 336 So.2d 560 (Fla.1976); Gammon v. Cobb, 335 So.2d 261 (Fla.1976); O’Donnell v. State, 326 So.2d 4 (Fla.1975); Selby v. Bullock, 287 So.2d 18 (Fla.1974); Pacheco v. Pacheco, 246 So.2d 778 (Fla.1971); McKee v. State, 203 So.2d 321 (Fla.1967); Larson v. Lesser, 106 So.2d 188 (Fla.1958). To determine the rationality of a law the Court must look at the purpose the law serves, the facts involved, the impact of the law upon citizens and the relationship between the law and these factors.

The unreasonableness of the classification in Section 893.13, Florida Statutes, is discussed in my dissenting opinion in Bourassa v. State, 366 So.2d 12 (Fla.1978).

Admittedly, cannabis is a health hazard, just as tobacco or intoxicating liquors. It is unreasonable and illogical to classify the health hazard involved in the use of cannabis with that of hard drugs mentioned in the statute. I have not found “substantial expert opinion” that the health hazard of cannabis is comparable to that of hard drugs. The rational basis must be based on some element other than the existence of a health hazard. Under the reasoning of the majority the statute could have included tobacco, intoxicating liquors and even some vitamins used to excess and saccharin.

In my opinion the statute should be held unconstitutional and the judgment of the trial court reversed.

      . Transcript of testimony entitled “Proceedings on Hearings on the Constitutionality of Pennsylvania’s Marijuana Law,” held October 11, 12 and 13, 1976, in the Matter of Commonwealth of Pennsylvania v. Dillon.


author:
PER CURIAM.
      ADKINS, Justice,

text:
    Linda BOURASSA, Appellant, v. STATE of Florida, Appellee.
    No. 51926.
    Supreme Court of Florida.
    Oct. 12, 1978.
    Ronald K. Zimmet, Asst, Public Defender, Holly Hill, for appellant.
    Robert L. Shevin, Atty. Gen. and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Hamilton v. State, 366 So.2d 8 (Fla.1978).

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

This is a direct appeal from a decision of the County Court of Volusia County which held sections 893.03(l)(c)(10) and 893.-13(l)(f), Florida Statutes (1975), which prohibit possession of marijuana, constitutional.

The questions of whether marijuana is healthy or harmful, whether the sale or possession should be legal or decriminalized, or whether it should be used by any individual, are not material to the disposition of this case and should not be considered. Assuming that marijuana is harmfül, does the record show that the harmful effects of marijuana are such that it is irrational to classify it with heroin, morphine, LSD, and other hallucinogenic drugs? If so, this is an unreasonable classification and, regardless of the morality concept of some persons, the statute must fall.

The appellant, Ms. Bourassa, was caught attempting to take clothing from a discount store. A policeman arrested her, and when her purse was searched, cannabis was found in it.

Ms. Bourassa was charged with, among other things, possession of under five grams of cannabis, in violation of Section 893.-03(l)(c) and Section 893.13(l)(f), Florida Statutes. She filed a motion to dismiss the cannabis charge, alleging that the Florida cannabis statutes violate her right to equal protection as secured by the United States and Florida Constitutions.

The court had an evidentiary hearing on the motion to dismiss. Ms. Bourassa called expert witnesses to testify about the nature of cannabis in comparison with the other substances classified by the statutes. The court, after reviewing the evidence, upheld the statutes finding that the classification of marijuana has a rational basis in fact with opiates, amphetamines, barbiturates and hallucinogens.

Ms. Bourassa’s witnesses were three highly qualified doctors who participated in a two-year study in Costa Rica of the effects of heavy (average of nine cigarettes per day), long term (ten years) marijuana use. The study was structured to minimize the effects of alcohol and other drug use as well as to monitor marijuana potency. After several years of study the doctors concluded the subjects’ health, family life, work habits, and sociological development were not adversely affected by their marijuana use. Differences between the users and nonusers studied, such as higher incidences of venereal disease and criminal activity for users, were attributed to life styles rather than marijuana use and often predated marijuana use. The doctors all said marijuana was not comparable in effect or dangerousness to the other substances listed as controlled in Section 893.03(1), Florida Statutes (1975).

The state’s witness, a psychiatrist, said he regularly treated patients, especially young ones, who had problems attributable to marijuana use. He felt there were enough problems in life without legalizing marijuana. All the witnesses agreed marijuana caused euphoria and temporarily mildly affected motor skills.

The judge’s order said evidence showed long term use of marijuana was not harmful. But he denied the motion to dismiss because he was not convinced its short term effects were significantly different from those of the drugs with which it is classified.

Florida laws governing the use, regulation, distribution and prohibition of drugs were found in Chapter 893, Florida Statutes (1975). The chapter is titled the Florida Comprehensive Drug Abuse Prevention and Control Act and is quite complex. Section 893.03, Florida Statutes (1975) lists some 131 different substances as controlled. The list is divided into five schedules. Cannabis (Marijuana) and its active ingredient, Tet-rahydrocannabinol, are listed in the first schedule along with heroin, morphine, other opiates, amphetamines, lysergic acid dietha-lamide (LSD) and other hallucinogens. Possession of all controlled substances not lawfully obtained is prohibited by Section 893.13(1)(3), Florida Statutes (1975), and made a third degree felony. The schedule a drug is in does not affect the definition of or the penalty for its unlawful possession. The crime of possession of a controlled substance is reduced to a first degree misdemeanor by Section 893.13(l)(f), Florida Statutes (1975), if the controlled substance is cannabis, if the offense is the possessor’s “first offense”, and if the possession is not for compensation. Ms. Bourassa was-convicted of the crime created by the interaction of these three statutes.

Ms. Bourassa claims marijuana is so radically different from the drugs it is classed with by the statutes that the classification is irrational and therefore denies her the equal protection guaranteed by the 14th amendment to the United States Constitution and Section 2, Article I, of the Florida Constitution. The state argues the classification has not been proved irrational.

Florida and Federal courts have long since agreed a law creating classifications without a rational basis denies equal protection. The Federal “rational basis” test has been articulated in a number of ways. For one test, the Supreme Court has said a statutory discrimination will be upheld if any state of facts may reasonably be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). As another test, the court has said a classification must rest upon a difference having a fair and substantial relation to the law’s objective. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). These statements and others running the gamut between them have entertained the minds and pens of legal scholars for years. See, Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn.L.R. 601 (1974).

Florida courts’ articulation of the “rational .basis” test for determining if Florida’s equal protection guarantee has been violated, although varyingly phrased, is most closely analagous to the requirements of Royster Guano Co., supra. Both tests require more than a hypothetical rational basis for a classification. This court has interpreted the Florida Constitution to require a “valid and substantial reason for classifications.” Moore v. Thompson, 126 So.2d 543 at 548 (Fla.1961); accord, Henderson v. Antonacci, 62 So.2d 5 at 9 (Fla.1952). The requirement has also been termed one for “reasonable justification”, State ex rel. Gerstein v. Hialeah Race Course, Inc., 245 So.2d 53 at 57 (Fla.1971), or “a just, fair and practical basis” for the classification “based on a real difference which is reasonably related to the subject and purpose of the regulation”, Newman v. Carson, 280 So.2d 426 at 429 (Fla.1973). See also, State v. Lee, 356.So.2d 276 (Fla.1978); United Gas Pipe Line Co. v. Bevis, 336 So.2d 560 (Fla.1976); Gammon v. Cobb, 335 So.2d 261 (Fla.1976); O’Donnell v. State, 326 So.2d 4 (Fla.1975); Selby v. Bullock, 287 So.2d 18 (Fla.1974); Pacheco v. Pacheco, 246 So.2d 778 (Fla.1971); McKee v. State, 203 So.2d 321 (Fla.1967); Larson v. Lesser, 106 So.2d 188 (Fla.1958). To determine the rationality of a law the court must look at the purpose the law serves, the facts involved, the impact of the law upon citizens and the relationship between the law and these factors.

The statute challenged in O’Donnell v. State, 326 So.2d 4 (Fla.1975) was analyzed in this manner. There the constitutionality of Florida’s law providing at least 30 years imprisonment for kidnapping was challenged as denying equal protection because it classified “passive” kidnappers with “active” ones. O’Donnell was a member of a group which kidnapped someone although he took no active part in the abduction. He claimed classification of himself with the other “active” kidnappers was so irrational he was denied equal protection. Rejecting O’Donnell’s claims, the court upheld the statutes. The nature of the crime, society’s need to deter the crime, and the undeniable participation of even a “passive” actor in the kidnapping together provided a rational basis for the classification. Likewise in Newman v. Carson, 280 So.2d 426 (Fla.1973), the court looked closely at the facts, the statute’s purpose, and their relationship to the classifications made before rejecting a claim that equal protection had been denied. The law challenged in Newman required pawnbrokers and some others to keep certain records of the goods they bought and sold. Only “regular junk dealers” were affected and the law excepted sales of auto parts, household goods and furniture. The court considered the high rate of theft and the practical effect of the law, frustration of the sale of stolen goods and assistance in return of stolen goods, the nature of goods most often stolen and the markets they were disposed of in before determining the statute’s classifications had a fair and practical basis and were reasonably related to the law’s purpose.

The same standards have been applied to classifications which do not subject citizens to criminal sanctions. In United Gas Pipe Line Co. v. Bevis, 336 So.2d 560 (Fla.1976) the court determined a statute which allowed the Public Service Commission (PSC) to regulate gas sales otherwise totally exempted from PSC regulation upon petition by an affected industrial user was unconstitutional because it did not rationally further the statute’s purpose, providing the public utilities at a fair price. The statute denied equal protection because the class benefited was not the public and there was no assurance the class would pass on to the public any benefits received.

Quite recently in State v. Lee, 356 So.2d 276 (Fla.1978), the law creating the Good Drivers’ Incentive Fund was determined to deny equal protection because the classifications created were not reasonably related to the law’s purpose of encouraging safe driving. The classifications prohibited drivers from receiving incentive payments if they were convicted of “moving violations”. The court found this classification unconstitutional because some “moving violations”, such as driving over a fire hose, were not related to safe driving.

Just as the courts in the foregoing cases examined the classifications created, the goals served, and the ends achieved, we must examine the purpose of classifying marijuana as a controlled substance, its actual physical characteristics, the physical characteristics of the other substances it is classified with, and the relation between them and the class created to determine if there is a valid and substantial reason for the classification.

Last year in Laird v. State, 342 So.2d 962 (Fla.1977), this court ruled upon the constitutionality of the statutes involved here. The court’s interest in Laird was whether the statute affected a fundamental interest. Although the court noted “[i]n a proper case appellate courts may take judicial notice of . expert opinions . and scientific authority”, it refrained from doing so saying:

This Court is ill-suited to make such a de novo judgment in a case, such as this one, which comes to us on a denial of a motion to dismiss. The record before us is simply inadequate to support a determination of whether the health hazards of smoking marijuana justify its proscription to the general public. None of the parties really argued whether the legislature lacks a “rational basis” for its decision to ban private possession of cannabis . . . Thus in affirming the trial court, we do not foreclose the possibility of making such a determination on a properly-developed record wherein both sides have had an opportunity to present evidence of competing expert authorities before an impartial tribunal. Laird, supra, at 965 (footnotes omitted).

We now have “a properly-developed record”. The rationality of marijuana’s classification as a controlled substance was argued below and here. Both sides presented evidence on the issue to the trial judge. In addition, taking judicial notice of scientific authority is appropriate since the issues involved are not new on appeal. And the need is great when determining the rationality of a legislative classification to consider all the commonly available authoritative information. The appellate court has this right and need. See, Laird, supra; Schriver v. Tucker, 42 So.2d 707 (Fla.1949); Mitchum v. State, 251 So.2d 298 (Fla. 1st DCA 1971); Ritholz v. Johnson, 244 Wis. 494, 12 N.W.2d 738 (1944); State v. Meyers, 61 Wash.2d 772, 380 P.2d 735 (1963); State v. Larson, 81 S.D. 540, 138 N.W.2d 1 (1965). Accordingly, in addition to considering the testimony in this case the court has considered A Report of the Commission of Inquiry Into the Non-medical Use of Drugs, Cannabis (Crown, 1972 ed.) [hereinafter cited as Canadian Commission Report]; Report of the National Commission on Marijuana and Drug Abuse, Marijuana: A Signal of Misunderstanding (Signet, 1972), [hereinafter cited as Signal of Misunderstanding]; Second Report of the National Commission on Marijuana and Drug Abuse, Drug Use in America: Problem in Perspective (U.S. Government Printing Office, 1973), [hereinafter cited as Problem in Perspective]; Rubin, Vera and Comitas, Lamb-ros, Ganja in Jamaica, The Effects of Marijuana Use (Anchor 1976), [hereinafter Ganja in Jamaica ]; Fifth Annual Report to the United States Congress from the Secretary of Health, Education, and Welfare, Marijuana and Health (U.S. Government Printing Office, 1975), [hereinafter cited as HEW Report]-, and The Report of the Study of Chronic Cannabis Use in Costa Rica participated in by the witnesses below [hereinafter cited as the Costa Rican Report].

The statute now challenged and similar statutes have been challenged on varying constitutional grounds through the years. In 1969 we held the then existing laws prohibiting possession of marijuana did not deny equal protection. Borras v. State, 229 So.2d 244 (Fla.1969). In the intervening years marijuana has been extensively studied and the amount of information available about it and its effects has increased to such an extent that re-examination of the law is appropriate.

By prohibiting possession of certain drugs the legislature is exerting its power to protect the health, safety and welfare of the people. By classifying marijuana with the opiates, amphetamines, and barbiturates both in prohibition and punishment the legislature has determined their possession presents similar dangers. Our comparison of the effects of marijuana use on both the individual and society with the effects of other drug use demonstrates there is no rational basis for classifying marijuana with the other controlled substances.

The physical, psychological, and social dangers of opiates, amphetamines, and barbiturates are well documented and agreed upon. Extended use of any of these drugs usually causes physical deterioration and sometimes death. A single administration of a sufficient quantity of any of them can cause death. In contrast, no significant physical harm from marijuana use has been demonstrated. In fact, “[a] careful search of the literature and testimony of the nation’s health officials has not revealed a single human fatality in the United States proven to have resulted solely from ingestion of marijuana. Experiments with the drug in monkeys demonstrated that the dose required for overdose death was enormous and for all practical purposes unachievable by humans smoking marijuana.” Signal of Misunderstanding at 104.

Marijuana’s primary short-term physical effects are inducement of a mild pleasant euphoria, enhancement of perception and a slight slowing of temporal perceptions. These may be something the law should, require people to forego, but they do not present a danger to society comparable to the encouragement of violence by barbiturates and amphetamines or the total mis-perception of reality and hallucinations LSD can cause.

Marijuana may even reduce violent tendencies in its users. Only two debilitating physical effects have been linked to marijuana use. Preliminary research shows that smoking marijuana may cause slight lung damage, no different from that caused by smoking other herbs, and that marijuana use may effect testosterone levels in the blood. But neither of these effects have yet been thoroughly documented and, more importantly, they are not the least bit comparable to the effects of the drugs with which the law presently classifies marijuana.

Opiates, barbiturates, and amphetamines are all known to be addicting. Their addictive powers make these drugs dangerous to society and the individual in two ways. First, the addiction may cause continued and increasing use with the attendant physical deterioration of the user. Second, addicted users may find the need to obtain the drugs so strong that they will use any means including crime to obtain the drug or money for it.

Addiction is a broad word used to refer to dependencies caused by a variety of factors. •A dependency may develop from a chemical change in the body, usually coupled with a growing tolerance for the drug requiring larger and larger doses and severe physical reactions such as tremors, nausea, hallucinations or even death when the drug is withheld. The opiates are the drugs best known to produce this type of dependency, but barbiturates and amphetamines also produce it. The authorities reviewed by this court have found marijuana users do not develop this sort of dependency. This was true even of the users studied in Jamaica and Costa Rica who had been using marijuana heavily for years. In addition to a physical dependency drug users may develop a psychological dependency upon a drug so strong that they cannot function without it. Opiates, barbiturates, and amphetamines are all known to cause this sort of dependency. Marijuana does not. Although marijuana is sometimes erroneously referred to as psychologically addicting, the authorities report the need of the marijuana user for marijuana is no different than that any person has to continue a pleasing habit. That is, the experience is pleasant and the user repeats it because it was. But the desire to repeat it does not become compelling or necessary for existence. Extended use of opiates, barbiturates, and especially amphetamines can often cause mental illnesses, particularly psychosis. Hallucinogens like LSD also cause psychosis. Marijuana use does not cause mental illness. In cases where mental illness has been attributed to marijuana, an underlying psychosis usually already existed or other drugs were involved. Furthermore, the vast majority of marijuana users studied did not suffer from any mental illness.

Nor does marijuana lead to use of other drugs. Many marijuana users do not go on to use other drugs. When they do it is the result of the subculture and society in which they exist, not of a marijuana-created drive.

The authorities studied have not found marijuana to have any significant effect upon a user’s family life, work habits, or other behavior. Interestingly, the doctors participating in the Costa Rican study found marijuana users to have slightly more stable family and work lives than non-users. This contrasts sharply with the havoc the physical and psychological damage of opiates, amphetamines and barbiturates wreaks upon the lives of those dependent upon them.

In every relevant attribute marijuana has been shown to differ dramatically from the substances with which it is classified. It has been shown to be a relatively innocuous drug. And it certainly does not present the dangers to society or an individual of the drugs with which it is classified. We can find no rational basis for so classifying it.

Other courts passing upon the constitutionality of similar statutes have reached varying results. Several have concluded classification of marijuana with the opiates is irrational and denies marijuana users equal protection. State v. Anonymous, 32 Conn.Sup. 324, 355 A.2d 729 (1976); People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972); People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971). Others have not. United States v. Maiden, 355 F.Supp. 743 (D.Conn.1973); State v. Mitchell, 563 S.W.2d 18 (Mo.1978); State v. White, 153 Mont. 193, 456 P.2d 54 (1969). The state has relied heavily upon Maiden and Mitchell. We have found the rationale in these cases wanting in several ways. The court in Mitchell acknowledged the existence of much of the current information about marijuana, but the court did not examine the information and determine some rational basis for classifying marijuana with the opiates. It only said the classification had not been shown irrational — mentioning without identifying authorities contrary to the ones finding marijuana significantly different from the opiates. Our constitution calls for a more searching look at the facts to determine if a rational basis for a legislative classification exists. One of the dissenting justices in Mitchell wrote that information available today “demonstrates that marijuana is a substance of relatively harmless character . . . and so is unreasonably classified . . . with the opiates and barbiturates.” Mitchell, supra, at 35 (Shangler, Special Judge, dissenting).

Maiden, supra, decided the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1242, which inspired Florida’s law, did not deny equal protection guaranteed by the United States Constitution. As noted earlier the federal courts have not been consistent in their articulation of a “rational basis” test and oft times apply a test less demanding than we have held Florida’s Constitution to require. In addition the court acknowledged the dissimilarity of marijuana and opiates. But the federal law, unlike Florida’s, does not treat possessors of marijuana as it treats possessors of opiates and other drugs. Thus the federal law’s classification of marijuana with opiates does not classify the user with opiate users as Florida’s statute does. The Maiden court also relied upon the law’s provision for lesser penalties for offenses involving small amounts without remuneration as saving the statute from denying equal protection. We cannot accept that rationale nor apply it to Florida’s law. Possession of all controlled substances is prohibited by the statute, and possession of marijuana subjects one to the same penalties possession of heroin does. Marijuana and marijuana users are thus classified with heroin and heroin users. Section 893.13(l)(f) Florida Statutes (1975), reduces the penalty in certain situations but not the classification. The reduction does not distinguish between marijuana and other drugs, but between possessors of a small amount who have escaped prior apprehension and are not seeking compensation. The irrational classification remains.

The classification of marijuana with opiates is irrational and denies Ms. Bourassa the equal protection of law promised by Florida’s constitution. This does not mean marijuana’s use or possession may not be regulated or even prohibited and punished. It only means that the danger to the public presented by marijuana and its use is so different and less severe than that presented by opiates that it may not constitutionally be treated as if it presented the same dangers.

The decision of the trial court should be reversed.

      . “No conclusive evidence exists of any physical damage, disturbances of bodily processes or proven human fatalities attributable solely to even very high doses of marijuana.” Signal of Misunderstanding at 69.
      Blood pressure and eye fluid pressure change slightly when an individual is experiencing the effects of marijuana use. Slight changes of perception are also caused. But the effects are temporary and none have been shown inherently harmful. Signal of Misunderstanding, pp. 68-74, 80; Canadian Commission Report, pp. 47-52, 112; HEW Report, pp. 4, 5, 78, 32-86; Ganja in Jamaica, pp. 84—107, 116.

      . Signal of Misunderstanding, pp. 68-74, 80; Canadian Commission Report, pp. 47-52, 57-66, 111-114; HEW Report, pp. 82-85.

      . Problem in Perspective, pp. 150-153, 159, 165; Canadian Commission Report, pp. 47-52.

      . “No evidence exists that marijuana use will cause or lead to the commission of violent or aggressive behavior by the large majority of psychologically and socially mature individuals in the general population.” Signal of Misunderstanding, at 91. See also, Signal of Misunderstanding, pp. 86-91; Problem in Perspective, p. 159; Canadian Commission Report, pp. 107-110; HEW Report, pp. 80-82.

      . Signal of Misunderstanding, p. 106; Canadian Commission Report, pp. 118-119; HEW Report, pp. 80-82.

      . Problem in Perspective at 131.

      . Problem in Perspective at 131.

      . Signal of Misunderstanding, pp. 61-77, 108; Problem in Perspective, pp. 131, 159; Canadian Commission Report, pp. 119-125; HEW Report, pp. 90-93.

        . Ganja in Jamaica, 135-138.

      . Signal of Misunderstanding, p. 108; Problem in Perspective, pp. 147, 116-118; Canadian Commission Report, pp. 119-125.

      . Problem in Perspective, pp. 150-152; Canadian Commission Report, p. 89.

      . Problem in Perspective, pp. 150-152; Canadian Commission Report, p. 89.

      . Signal of Misunderstanding, pp. 72-73; Canadian Commission Report, pp. 102-107; HEW Report, p. 87; Ganja in Jamaica, pp. 123-124.

      . Signal of Misunderstanding, pp. 54-59, 108-110; Canadian Commission Report, pp. 128-130.

      . Problem in Perspective, pp. 157-164, 189-197.


author: PER CURIAM. BOYD, Justice,

text:
    Wardell RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 49666.
    Supreme Court of Florida.
    Oct. 26, 1978.
    Rehearing Denied Jan. 30, 1979.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and George R. Georgieff, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant was tried by jury and convicted on two counts of first degree murder and one count of assault with intent to commit first degree murder. An advisory sentence of death was recommended by the jury and imposed by the trial judge as to one of the murder counts, vesting jurisdiction for a review of all convictions and sentences here.

According to the evidence at appellant’s trial, he and an unidentified person entered the business establishment at which appellant was employed, toward the end of a normal workday, for the purpose of robbing it. The only persons then present were the father and son co-owners of the business, and the manager. All three were threatened with pistols, forced to lie on the floor, bound, gagged, and then shot in the head. The son co-owner survived, and he was able to describe these events and later testify as to appellant’s participation. Appellant took the witness stand to deny complicity, but the jury disbelieved him. The jury recommended a sentence of death for the father’s killing and life for the manager’s. The trial judge sentenced appellant in accordance with these recommendations, and he imposed a 15 year sentence for the felonious assault on the son.

No challenge is made here with respect to appellant’s convictions, save one regarding jury selection. Our self-imposed responsibility however, includes a review of the entire record of the trial for errors which might require a new trial. We have found none.

With respect to the voir dire examination of prospective jurors, appellant contends that the trial court systematically excluded persons opposed to capital punishment and thereby deprived him of a random selection of a cross section of the community. The argument is made that defendants in capital cases are entitled to have on the jury which determines guilt or innocence persons who are unalterably opposed to the death penalty, because they would represent a definable cross section of the community. It is suggested that jurors for the first phase of our bifurcated proceeding in capital cases would serve in that proceeding only, to determine the accused’s guilt or innocence, and that alternate jurors who qualify under the standard prescribed in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), would serve either with them or in their stead for the second, or sentence-advisory, phase of trial. While this suggestion is novel, we have given it full consideration and find no compulsion in law or logic to so structure capital case trials. We reject appellant’s contention that his jury was impermissibly constituted.

Appellant’s principal argument to us is that a death sentence is not warranted for his crime, first because the trial judge considered matters outside the list of enumerated factors prescribed by Section 921.141, Florida Statutes (1975), and second because the statutory mitigating circumstances outweigh in significance the statutory aggravating factors.

In his written findings, the trial judge described six aggravating circumstances and one mitigating circumstance. Two of the aggravating circumstances clearly must be disregarded as not having been listed in Section 921.141(5), Florida Statutes (1975). A third aggravating circumstance, that the father’s murder was committed in a “terribly cruel, ruthless and heinous manner,” constitutes a defective application of the statutory factor concerning heinous and atrocious murders. We have previously limited this statutorily-prescribed factor to those capital felonies which are “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.” Here the atrocity described by the prosecutor and apparently accepted by the trial judge was the son’s having to see his father’s execution death. There was nothing atrocious (for death penalty purposes) done to the victim, however, who died instantaneously from a gunshot in the head. As to this aspect, the case is similar to Cooper v. State, 336 So.2d 1133 (Fla.1976), where we ruled that a like killing was not heinous and atrocious within the meaning of Section 921.141(5)(h).

A fourth and fifth finding were that the murder was committed for pecuniary gain and during the course of a robbery, invoking Sections 921.141(5)(d) and (f). These findings are duplicative in this case, and should constitute only one aggravating circumstance. Provence v. State, 337 So.2d 783, 786 (1976).

The final aggravating circumstance identified by the trial judge was that the murder was committed to eliminate a witness and thereby avoid lawful arrest. Section 921.141(5)(e). Appellant urges us to limit this factor to cases where a police officer or other apprehending official is killed. He suggests that unless we do so, every murder could be characterized as an attempt to eliminate a witness, causing another automatic cumulation of factors. The state argues more narrowly, from the evidence in this case, that the only possible motive for the killing was to eliminate an identification witness.

' The record supports the state’s view, as the facts admit of only one interpretation. The victim, who well knew and could identify appellant, was immobilized and rendered helpless. He was then executed after one of the perpetrators expressed a concern for subsequent identification. Plainly appellant killed to avoid identification and arrest. Appellant concedes this view of the evidence in his brief.

Since the facts show this to be an execution-type killing to avoid lawful arrest, we necessarily reach the broader issue of whether the language of the applicable provision encompasses the murder of a witness to a crime as well as law enforcement personnel. We hold that it does. See Sullivan v. State, 303 So.2d 632 (Fla.1974). We caution, however, that the mere fact of a death is not enough to invoke this factor when the victim is not a law enforcement official. Proof of the requisite intent to avoid arrest and detection must be very strong in these cases. Here, of course, it was.

The one mitigating factor found to exist in this case was appellant’s lack of any significant history of prior criminal activity. All other mitigating factors in Section 921.-141(6) were properly found to be absent.

Since the trial judge improperly considered aggravating factors outside the statutory list and there was present at least one mitigating circumstance, we must remand this case for reconsideration of the sentence by the trial judge. Elledge v. State, 346 So.2d 998 (Fla.1977).

Appellant’s convictions are affirmed, as are his life and 15 year sentences. The case is remanded, however, for the sole purpose of allowing the trial judge to reconsider the imposition of the death sentence for the murder of Peter Enea, Sr., in accordance with Section 921.141 as construed in this opinion.

It is so ordered.

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

ADKINS and OVERTON, JJ., concur with that part of majority opinion which affirms appellant’s conviction, but dissent from that part which orders a remand for resentencing.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I respectfully dissent from the majority opinion. A careful examination of the testimony demonstrates an insufficient factual basis for a finding of guilt beyond and to the exclusion of a reasonable doubt.

The facts clearly established are that Peter Enea, Sr. and Robert Lisenby were shot to death with pistols during the course of a robbery and that Peter Enea, Jr. was shot in the head but survived. Eyewitness testimony was offered by Peter Enea, Jr. He said that the crimes were committed by appellant War dell Riley and an unidentified man who had ridden on Riley’s truck when it returned to the Sunset Bottling Plant shortly after 6:00 p. m. on September 15, 1975. Consideration of the entire evidence raises a question of whether the State’s only eyewitness could have mistaken some other person for Riley. All other testimony was circumstantial and often conflicting. There was not the quantum of proof required for conviction of crimes.

There was conflicting evidence as to when appellant and other drivers returned, checked in and left the Plant. Barry Rain-ie, one of the drivers, testified he left at 6:30 p. m., that all the victims were alive and that no automobiles were in the parking lot where appellant’s wife, Martha Riley, had parked with their two small children to wait for appellant. After being shown records kept by Peter Enea, Jr. that he had left at 5:15 p. m., he changed his testimony, but later reaffirmed his statement that he left at 6:30 p. m. and that no one was there except the victims of the crime. A neighbor of the Rileys, Mrs. Blue, saw them arrive at home, over three miles from the scene of the crimes, in their usual manner only fifteen minutes later, at 6:45 p. m. The Rileys had one car. Mrs. Riley testified that her husband was driving at the time Mrs. Blue saw them exit from the car at 6:45 p. m. Riley testified that he then left and was away from the house for less than one hour, during which time he was playing basketball at a park. The Ri-leys went to the dog track that night and Mrs. Blue testified she kept the Riley children until their return. She said the family acted normally, with no indication of unusual circumstances.

It seems incredible that anyone would have their spouse and children to wait outside, enter the premises and commit a robbery and mass murder as the State alleged here. It becomes harder to believe when we examine the proof that appellant had attended college and was applying for work as a police officer. Also, another driver testified that appellant was pleasant and friendly minutes before the alleged crimes were committed.

When the police arrived at the scene of the crimes Peter Enea, Jr., suffering from the head wound, gave them a city personnel identification card of appellant and the license plate number of appellant’s car, although his father and plant manager, Robert Lisenby, were dying. He said appellant had ransacked the file and put his hands on the desk and telephone. Appellant’s fingerprints were not found at those places by police. Enea said appellant fired pistols, shooting him, his father and their manager. Appellant testified police made scientific tests within a few hours to determine whether he had fired a pistol. He never heard from the tests, no such evidence was offered by the State and the testimony was not rebutted.

In appellant’s home, the work pants and shoes worn by appellant on the day of the crime were seized and a small quantity of human blood was found on them. The type could not be determined and the amount of time the blood had been there could not be determined. It was common practice to wear the same pants more than one day without laundering them. Appellant and other drivers, including . State witnesses, said all drivers frequently cut their hands on broken bottles while working. Blood would naturally be on their clothing.

No weapons were found in appellant’s home. Some .25 caliber ammunition was found which apparently would have fit the weapon owned by Peter Enea, Jr., and with which he was shot. Appellant and his wife claimed that the ammunition was kept so that the gun powder could be used for household purposes. No other property linking appellant to the crime scene was found.

There is much other conflicting and vaguely related evidence, but it simply does not constitute a sufficient basis to overcome the presumption of innocence. I will not consent to conviction and execution of anyone on such weak evidence.

I do not know whether the appellant is guilty. Having twice served as foreman of twelve member juries, I agree with my colleagues that factual determinations of juries should generally not be disturbed. In this case, however, I am convinced the quantum of proof for conviction is not shown in the record. I do not think a jury of reasonable men could reach a verdict of guilty without misunderstanding the evidence or the law. Under these circumstances the trial court’s adjudication of guilt should be quashed.

I dissent.

      . Our jurisdiction to review the death sentence is found in Art. V, § 3(b)(1), Fla.Const., and § 921.141(4), Fla.Stat. (1975). Our review of other convictions and sentences arising from the same trial is grounded in the sound administration of the judicial system of the state. See Huckaby v. State, 343 So.2d 29 (Fla.1977).

      . The court found (1) that Riley had shown no remorse and (2) that the length of his premeditation for the crime was great.

      . State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). See also Tedder v. State, 322 So.2d 908 (Fla.1975).

      . This subsection provides: “The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.”

      . If the death penalty is to be successful as a deterrent to murder, as some believe it will, its imposition in witness execution cases such as this may save the lives of future robbery victims.

      . Griffis v. Hill, 230 So.2d 143 (Fla.1970). Tibbs v. State, 337 So.2d 788, 792 (Fla.1976), (Boyd, J., Concurring Specially).


author: HATCHETT, Justice.

text:
    C. Howard ZIMMERMAN, Petitioner, v. CIVIL SERVICE BOARD OF the CITY OF BOCA RATON, Florida, Respondent.
    No. 52762.
    Supreme Court of Florida.
    Oct. 26, 1978.
    Rehearing Denied Jan. 30, 1979.
    Roger H. Harper, Delray Beach, for petitioner.
    M. A. Galbraith, Jr., City Atty. and Cor-mac C. Conahan, Senior Asst. City Atty., Boca Raton, for respondent.
   HATCHETT, Justice.

We approve and adopt the opinion of the Fourth District Court of Appeal, reported at 350 So.2d 812 (Fla. 4th DCA 1977), holding that a municipality is an indispensable party where certiorari is sought to review a quasi-judicial order of a municipal civil service board which rules on the propriety of an administrative decision of a city. That decision directly conflicts with Board of Public Instruction of Duval County v. Sack, 212 So.2d 819 (Fla. 1st DCA 1968), vesting jurisdiction in this court under Article V, Section 3(b)(3), Florida Constitution.

Accordingly, the decision of the Fourth District Court affirming the order of the trial court is approved.

It is so ordered.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.


author: SUNDBERG, Justice.

text:
    In the Interest of G. L. T., JR. and George L. Thomas, Jr., Petitioners, v. STATE of Florida, Respondent. In the Interest of R. P. C., Petitioner, v. STATE of Florida, Respondent.
    Nos. 52182, 52181.
    Supreme Court of Florida.
    Nov. 16, 1978.
    Richard L. Jorandby, Public Defender and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for petitioners.
    Robert L. Shevin, Atty. Gen. and Paul H. Zacks, Harry M. Hipler and Robert L. Bo-gen, Asst. Attys. Gen., West Palm Beach, for respondent.
   SUNDBERG, Justice.

These consolidated petitions for writ of certiorari are before this Court to review two decisions of the District Court of Appeal, Fourth District, which are alleged to be in direct conflict with In the Interest of J.W.H., et a1. v. State, 345 So.2d 871 (Fla. 1st DCA 1977). We exercise our discretionary review pursuant to Article V, Section 3(b)(3), Florida Constitution.

In the Interest of R.P.C. v. State, supra, involved a minor who was charged by Petition Seeking Adjudication of Delinquency with attempted larceny, was found delinquent, and was ordered committed to Florida Youth Services by the trial court. Petitioner filed a motion to dismiss with prejudice, alleging that since no written report on petitioner was filed until seven days after he was taken into custody, the State failed to comply with Section 39.03(2), Florida Statutes (1975), which provides in pertinent part:

The person taking the child into custody shall, within 3 days, make a full written report to the appropriate intake officer, stating the facts by reason of which the child was taken into custody. The report shall:
(a) Identify the child, his parents, and the person to whom he was released.
(b) Contain sufficient information to establish the jurisdiction of the court and to support a finding by the court that the child is delinquent or dependent.

The trial court denied the motion to dismiss, and on appeal, the District Court of Appeal, Fourth District, affirmed, holding that “[t]he requirement of a written report within three days is a procedural step and not a substantive right,” and that “[w]ithout a showing of prejudice to the juvenile, noncompliance does not require reversal."

In the other case which we review today, In the Interest of G.L.T., Jr. v. State, supra, petitioner, a minor, was charged with three counts of burglary. Petitioner filed a motion to dismiss alleging noncompliance with Section 39.03(2) in that six days had elapsed between the time he had been taken into custody and the time the report was filed. The juvenile court denied the motion to dismiss. Petitioner’s case was subsequently certified for transfer to the circuit court, where he pleaded nolo contendere to one count of burglary, was adjudicated guilty, and sentenced to two years imprisonment. On appeal, the District Court of Appeal, Fourth District, affirmed per curiam on the authority of its decision in In the Interest of R.P.C., supra, with one judge dissenting on the ground that the three-day report requirement was mandatory.

The issue before this Court then is whether the three-day time period requirement contained in Section 39.03(2), Florida Statutes (1975), is a substantive right entitling petitioners to automatic dismissal of their delinquency petitions for noncompliance therewith or whether the statutory provision is merely a procedural step in which event noncompliance does not mandate reversal absent a showing of prejudice to the juvenile.

The competing philosophies as to whether the three-day requirement is a “substantive right” or “procedural step” are ably articulated by the opinion of the District Court of Appeal, Fourth District, in In the Interest of R.P.C. v. State, supra, and by that of the District Court of Appeal, First District, in In the Interest of J.W.H. v. State, supra. We adopt herein as the view of this Court the rationale of the District Court of Appeal, Fourth District, i. e., that the requirement of a written report within three days is a procedural step. Consequently, noncompliance does not require reversal without a showing of prejudice to the juvenile. We do not hereby conclude that the term “shall” contained in Section 39.03(2), Florida Statutes (1975), is not mandatory. We merely hold that violation of the directive of the statute can constitute harmless procedural error in the absence of demonstrated prejudice.

Accordingly, the decisions of the District Court of Appeal, Fourth District, are approved.

It is so ordered.

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

ADKINS, J., dissents.

      . In the Interest of G. L. T., Jr. v. State, 352 So.2d 79 (Fla. 4th DCA 1977); In the Interest of R. P. C. v. State, 352 So.2d 75 (Fla. 4th DCA 1977).

      . It should be noted that § 39.03, Fla.Stat. (1975), was substantially revised by Ch. 78-414, § 5, Laws of Fla.

      . It should be made clear that we do not use the terms “substantive” and “procedural” in the context of Art. V, § 2(a), Fla.Const. We deal here not with rules of practice and procedure which are the sole province of this Court pursuant to the cited constitutional provision. Instead we deal only with construction of a statutory provision related to the duty of one who takes a juvenile into custody to make a report to an intake officer.


author: BOOTH, Judge.

text:
    LAWRENCE NALI CONSTRUCTION COMPANY, INC., Petitioner. v. DEPARTMENT OF REVENUE, State of Florida, Respondent.
    No. II-175.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1978.
    Charles Holcomb, Cocoa, for petitioner.
    Daniel C. Brown, Asst. Atty. Gen., for respondent.
   BOOTH, Judge.

This cause is before us on petition for review of final agency action by order dated November 22, 1977, upholding the validity of an assessment by Department of Revenue [DOR] of sales tax, interest and penalties against Lawrence Nali Construction Company [Nali], petitioner herein.

Respondent DOR conducted an audit of transactions involving petitioner Nali for the period November 1, 1972, through October 31, 1975, and as a result thereof claims a balance due of $17,383.58 in taxes, interest and penalties. All transactions involved sales by Nali of asphaltic concrete to political subdivisions of the State, governmental entities that are exempt from payment of sales tax under Florida Statute § 212.08(6):

“There shall also be exempt from the tax imposed by this chapter sales made to . the state, or any county, municipality or political subdivision of this state; provided this exemption shall not include sales of tangible property made to contractors employed either directly or as agents of any such government or political subdivision thereof when such tangible personal property goes into or becomes a part of public works owned by such government or political subdivision thereof ...”

The DOR contends that under the proviso of the foregoing statute and Rule 12A-1.51 F.A.C., Nali must pay sales tax on the as-phaltic concrete that Nali manufactured, delivered and installed on real property of political subdivisions of the State. Rule 12A-1.51, F.A.C. is in pertinent part as follows:

“12A — 1.51 Sales to or by contractors who repair, alter, improve and construct real property.
(1) The method by which contractors or subcontractors arrive at the total contract price charged for repair, alteration, improvement and construction of real property or for a combination of work on both real and personal property must be determined for the purpose of ascertaining whether the receipts from sales made to or by them are taxable.
(2) Such contractors may include, among others, building, electrical, plumbing, heating, painting, decorating, ventilating, paper hanging, sheet metal, bridge, road, landscape or roofing contractors and they may use one of the following methods in arriving at the total contract price:
(a) Contracts in which the contractor or subcontractor agrees to furnish materials and supplies and necessary services for a lump sum;
(d) Contracts in which the contractor or subcontractor repairs, alters, improves or constructs real property and wherein he agrees to sell specifically described and itemized materials and supplies at an agreed price or at the regular retail price and to complete the work either for an additional agreed price or on the basis of time consumed.
When a contractor or subcontractor uses materials and supplies in fulfilling either a lump sum, cost plus, fixed fee, guaranteed price of any kind of contract except one falling in class (d) above, he becomes the ultimate consumer thereof.
The person or dealer who sells such materials and supplies to such contractor or subcontractor is making sales at retail and is required to collect the tax from him based upon the receipts from such sales.
In cases falling in class (d) above, the contractor or subcontractor is deemed to be selling tangible personal property at an agreed retail price and shall collect tax from his purchaser based upon the amount of the receipts from such sales, excluding installation charges if separately stated. A dealer selling to such contractor or subcontractor must obtain a resale certificate in lieu of tax.”

Nali contends that its transactions are covered by (d), supra, of the above-quoted rule and thus are not taxable to Nali. The DOR contends that the transactions in question are “lump sum contracts” under (a), supra, making the tax due from Nali and rendering inapplicable the exemption of § 212.-08(6).

The hearing examiner’s recommended order, adopted by DOR, upheld the assessment stating:

“The effect of the above portions of the rule [Rule 12A-1.51] is that if a lump-sum contract is involved, the contractor rather than the property owner is deemed to be the end consumer because he agrees to provide the owner with altered or improved realty and it is this finished product that is being purchased. In such cases, tangible property purchased or manufactured by the contractor and incorporated in the project is consumed by the contractor for its own purpose in providing a final product of improved realty and the contractor is liable for the sales tax. Subparagraph 2(d), on the other hand, provides that if a contractor ‘breaks out’ the price for materials or supplies used and itemizes separately his service or installation charges, he is deemed to be a retailer. In such cases, the owner of the property is considered to be the end consumer or final retail purchaser and thus liable for the sales tax. In this case, it is clear that the political subdivisions contracted for an improvement to realty in the form of asphalt surfaces on roads. The contractual documents show that lump-sum contracts were utilized with no separate itemization of the materials, i. e., asphaltic concrete, used on the various contracts. Thus, the case falls within the purview of Rule 12A-1.51(2)(a) and petitioner is considered to be the ultimate consumer of the materials and supplies used in fulfilling the contracts. He is thus liable for the asserted sales tax thereon. . . . ”
******
It is true that if subparagraph (2)(d) of Rule 12A-1.51 were applicable, the transactions in question would be exempt from tax under the provisions of subsection 212.08(6), Florida Statutes, which exempts sales of tangible personal property to political subdivisions of the state. The exemption, however, does not apply in cases of ‘sales of tangible personal property made to contractors . . . when such tangible personal property goes into or becomes a part of public works owned by such government or political subdivision thereof . . . .’ Since it has been determined above that the sales in this case were, in effect, made to the contractor under Rule 12A-1.51(2)(a), the exemption does not apply.”

Evidence adduced at the hearing was that since 1960 Nali has been bidding on, and selling, asphalt concrete to the State and its subdivisions under substantially the same arrangements as the DOR now, for the first time, seeks to tax. In 1967 DOR conducted an audit of Nali, but did not seek to tax similar sales to governmental entities of asphaltic concrete. The record before us does not establish whether DOR’s failure to claim these transactions as taxable after the 1967 audit was (1) due to DOR negligent oversight, or (2) the result of a then-existing agency policy which has since been changed. We agree with DOR that estoppel cannot be based on the omission, through oversight, to tax an otherwise taxable transaction. A more difficult question, the invalidity of a back assessment of taxes, interest and penalties following a change of agency policy without change in statute or rules governing taxability, is not before us.

Testimony at the hearing was that asphalt meeting the specifications of a particular governmental entity belongs to the purchaser “when it falls in that truck at the plant.” Switching of loads from one purchaser to another, for instance from a county to a city project, after loading at the plant was done only with express permission of the owner of the load and required a “change in the ticket”, the original of which accompanied the load. The testimony is consistent with the contractual arrangement between the parties and with the passing of title to the personalty at Nali’s plant. If the purchasers here were not tax-exempt governmental entities, they would be liable for sales tax. The inability of DOR to impose sales tax on purchases by governmental entities is not a valid basis in itself for imposition of tax on the private industry manufacturing and selling the property purchased.

In the proceeding below, Nali challenged the constitutionality of both the statute and the rule, but subsequently agreed to withdraw that challenge and withhold it for judicial determination. The hearing officer was of the view that he was without authority to.rule on the constitutional question and expressly reserved that question for the appropriate judicial forum. Although this Court is an appropriate judicial forum for determination of the constitutionality of the statute and rule, we find it unnecessary to reach those questions and therefore decline to do so.

The theoretical basis for the taxation under Chapter 212 of Nali on its sales to governmental entities is that Nali fabricates asphalt for its own use in performance of a contract and therefore is subject to a use tax. Under this theory the tax exempt status of the governmental entity as purchaser is not involved. The theory is untenable under the facts of record here, however. First, the call for bids in each instance of record is for “ASPHALTIC CONCRETE.” That is the product bid on, and purchased by, the governmental entity. Likewise the bid specifications deal with the quality and composition of the asphaltic concrete purchased. Neither the call for bids nor the specifications are for a projected improvement to realty but are clearly for the material itself, i. e., asphaltic concrete.

Turning now to the bid itself, the format is prescribed in each instance by the governmental entity and it is mandatory that the prescribed form be used. The bid form-, at requires that the bidder set out its bid in three distinct ways, giving the purchaser the option as to the alternative selected: (1) Asphaltic concrete F.O.B. (at the plant); (2) Asphaltic concrete placed by the vendor and (3) Asphaltic concrete delivered and placed by the vendor. Delivery charges are separately stated on a per-mile basis, so it is only as to placement service that DOR contends the “lumping” occurred.

Nali correctly points out that the contract in this case is the bid itself. The separate invoices are indicia of performance and not a series of separate contracts. All invoices are referable to the contract itself which clearly states the amount charged for as-phaltic concrete F.O.B. The value of services performed is readily apparent in each instance. There is no contention that the bid price of asphalt is other than the correct and constant price regardless of incidental service options selected by the purchaser. Indeed, no contention is made by DOR that the total value of services, if any, performed is not simply the difference between (1) the bid price of asphaltic concrete F.O.B. and (2) the invoice price. We hold, therefore, that the contract here is not a lump sum contract as defined by Rule 12A-1.51, and under § 212.08(6) the transactions in question are not validly subject to tax.

Accordingly, the order below is REVERSED.

BOYER, Acting C. J., and SMITH, J., concur.

      . Example of Bid Specification Format:
      “SPECIFICATIONS FOR ASPHALTIC CONCRETE
      # 2 Asphaltic Concrete
      Type II Modified 1800# or equal Price Per Ton
      A. F.O.B. $8.45
      B. County Delivered Vendor Placed 9.35
      C. Vendor Delivered & Placed 9.35_
      PLUS 8<t per ton per mile”