author: HARRIS, Presiding Judge.

text:
    Charles MOSELEY, alias v. STATE.
    6 Div. 545.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ninety-nine years in the penitentiary. Appellant was indigent and the Court appointed members of the Public Defender’s Office. At arraignment, in the presence of appointed counsel he pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence in this ease consisted solely of that introduced by the State. Appellant did not testify, nor did he offer any evidence in his behalf.

Appellant was put to trial upon a five-count indictment charging, inter alia, robbery, assault with intent to murder the security guard, assault with intent to murder the manager of the grocery store where the robbery occurred, and assault upon a police officer with a deadly weapon while such officer was engaged in the active discharge of his lawful duties. At the close of the State’s case the prosecution dismissed all counts in the indictment except the two robbery counts.

Omitting the formal parts the two counts submitted to the jury are as follows:

“I. The Grand Jury of said county charge that before the finding of this indictment Charles Moseley, alias Charles Mosely, alias William Napier, alias Char-lamagna Moseley, alias Melvin Mosley, alias Calvin T. Holder, alias Milton George Moseley, alias Charles Mange Mosley, whose name is otherwise unknown to the Grand Jury, feloniously took and carried away one (1) Colt brand Python .357 Magnum pistol, a better description of which is unknown to the Grand Jury, of the value of, to-wit: Three Hundred Twenty-five and no/100 ($325.00) Dollars, the property of Bank Sims from his person, or in his presence, and against his will by violence to his person or by putting him in such fear as unwillingly to part with the same,
“IV. The Grand Jury of said County further charge that before the finding of this Indictment, Charles Moseley, alias Charles Mosely, alias William Napier, alias Charlemagna Moseley, alias Melvin Mosley, alias Calvin T. Holder, alias Milton George Moseley, alias Charles Mange Mosley, whose name is otherwise unknown to the Grand Jury, feloniously took and carried away a sum of money, to-wit: Four Hundred Forty Six and no/100 ($446.00) Dollars, lawful cash, currency or coin of the United States of America, a better description of which is unknown to the Grand Jury, the property of Warehouse Grocery of Tuscaloosa, Inc., a corporation, but in the lawful possession of Randall L. Russell, from his person or in his presence, and against his will by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

Mrs. Glenda Blaich testified that on the night of February 16, 1977, she, her husband and their two children, a boy three years old and á girl two years of age, drove to the Warehouse Groceries to shop around 9 o’clock. She and her daughter waited in the car while her husband and son went inside the store.

Mrs. Blaich noticed a vehicle drive up. There were three black males in the car. All three got out of that car and entered the store. Two of them were wearing long dark coats and the third was wearing a short dark coat. Mrs. Blaich further testified that she attended a lineup on February 28, 1977. She stated she did not identify appellant. After these men entered the store, Mrs. Blaich heard sounds “like firecrackers.” She looked into the store and saw a black man wearing a long coat standing at the manager’s desk. There “was a commotion going on,” Mrs. Blaich testified. Thereafter, Mrs. Blaich heard screams, and saw the three men run from the store.

Allen Blaich testified that he, his wife Glenda, and his two children went to Warehouse Groceries on the night of February 16, 1977. He stated that they arrived at the store at 9 o’clock. While he and his son were in the store, Blaich heard gunshots. He looked towards the manager’s office and saw a black man “scuffling” with the night manager. Blaich then heard another gunshot. The manager ducked down in the office. Then Blaich saw the black man jump up on the check cashing counter on his knees and shoot down into the manager’s office. The manager kicked open the office door and ran out. The black man then fired at the manager again. Blaich testified that, while he was inside the store, he saw a uniformed police officer.

Randall Russell testified that he was night manager for Warehouse Groceries on February 16, 1977. Approximately 9:15 that night, Russell was working in the office. While he was counting money from one of the store’s registers, Russell was shot in the arm and shoulder. Russell turned and saw a gun pointed at his face. He grabbed the weapon, turning it away from him. Russell struck his assailant, ducked down and kicked open the office door. Another gunshot grazed his back. Then Russell ran down an aisle in the store. As he ran he felt another bullet whiz by. Russell subsequently returned to the office and pushed the alarm button. The money from the register was gone. Russell did not identify appellant as being in the store that night. His assailant was another man.

Carol Henderson testified that on February 16,1977, she was head cashier at Warehouse Groceries. She worked the 7:00 a. m. to 3:00 p. m. shift. One of her duties was verifying the amounts of cash in the registers at the store. Ms. Henderson ran a check on February 17, 1977 of the register till Russell had been counting at the time he was shot. She found a shortage of $466.92. She stated that this money, which was missing, was the property of Warehouse Groceries.

Phyllis Davis testified that she was employed as a cashier at Warehouse Groceries on February 16,1977. On that night, Davis saw Randall Russell “read down” a cash register and take the till from that register to the office. Shortly thereafter, she heard two gunshots and turned towards the office. She saw Russell leaning over the customer window of the office. There was blood on his shirt. She then ducked underneath the counter. She testified that, “When I stuck my head out from under the counter, I heard someone just say to me, get back where you were and stay on the floor, and I looked up and there stood a black man.” This man was holding a gun. Subsequently, she saw two men leave the store. She saw an empty register till in the office and called the police.

George Whitley testified that he was shopping at Warehouse Groceries on the night of February 16, 1977. As he was standing at the check-out counter Whitley saw a black male fire a pistol at the night manager. Another black male was standing nearby. He had a small .25 caliber pistol. This man told Whitley not to move. Whitley leaned down over his eleven year old daughter, and then heard two more gunshots. Everything got quiet, Whitley testified, and then there was a gunshot outside. Whitley stated that the two men he saw were wearing long dark coats and toboggan hats.

Pat Bush testified that she and Brenda Faye Jones went shopping at Warehouse Groceries on the night of February 16,1977. She noticed two men in the store wearing long dark coats. Subsequently, when Pat Bush was ready to check out, she saw a police officer and appellant, one of the men she had noticed earlier. At that time she heard what sounded like firecrackers. This sound came from the manager’s office. Ms. Bush saw the manager struggling with a man who had a gun. Then she heard another “bang” from the rear of the store. She turned and saw appellant holding a gun and standing over the police officer who was lying on the floor.

Brenda Faye Jones testified that she was shopping with Pat Bush on the evening of February 16, 1977, at Warehouse Groceries. She noticed two men wearing big coats back at the meat counter. Subsequently, Ms. Jones saw appellant walking down an aisle with a police officer. When Jones and Bush were moving toward the check-out counter, Jones heard “firecrackers.” She saw appellant holding a gun, standing over the police officer.

Banks Allen Sims testified that he was a police officer for the City of Tuscaloosa. He also stated that he was employed as a security guard for Warehouse Groceries on the night of February 16, 1977. Sims was standing in the front of the store when he was approached by appellant. Appellant asked Sims, “Could you help me a minute.” Sims told appellant he would, and followed appellant around some shelves of soft drinks. From that place, Sims could not see the manager’s office.

Appellant asked Sims if he knew how much the drinks were. At that time Sims heard a gunshot. He immediately turned, drew his service revolver and ran towards the front of the store. Sims testified, “. . .1 heard a shot and I went down.”

From the record:

“A. I fell face down on my left side with my left arm under me, and I couldn’t get my left arm out from under me, I looked up and I still had my service revolver in my right hand, I pulled my right hand down by my side. I began to push myself up and I heard somebody— first I felt a metal object, it felt like a gun placed at the back of my head, and I heard what sounded like a colored male’s voice saying, Lay it down or turn it loose, I believe he said, Turn it loose, the best I can remember, and I did at this time.
“Q. That was your gun?
“A. Yes, it was.
“Q. All right.
“A. That’s about all I can tell you except that other than the fact that he took my gun, I didn’t see him anymore after that.”

Glenda .Blaich was then recalled. She testified she saw the same three men exit the store. She stopped a boy, Jack Alexander, who was walking by her car, and told him that the store was being robbed. Alexander crouched down by Mrs. Blaich’s car. When the three men came out of the store, one of them approached Mrs. Blaich’s car. He put a gun to Alexander’s head and demanded that he give him his money. Alexander dropped his wallet into a bag the man was carrying. Then a gunshot pierced the windshield, narrowly missing Mrs. Blaich.

Jack Alexander testified that he went to shop at Warehouse Groceries on the evening of February 16, 1977. Alexander parked his car in the store lot and began to walk towards the store. Mrs. Blaich warned him not to go into the store. Alexander saw the three black men try to get out the entrance doors but they could not. Then he saw them run to the exit doors and leave the store and come in his direction. One raised a gun and said, “You better get down, you mother.” Another man “stuck” a gun in Alexander’s face and demanded Alexander’s wallet. Alexander further testified that these three men were black and wore dark clothing. Then a gunshot broke the windshield and passed over Mrs. Blaich’s head, Alexander testified. He identified appellant as one of the men who stood by while he was robbed.

Donald Guy testified that he was in Warehouse Groceries around 9 o’clock on the evening of February 16, 1977. He saw a black man shooting a gun in the office and then taking money from the till. Guy ran to a nearby Pizza Hut and had the police called. He then flagged down an off-duty policeman.

Allen Fondren testified that on February 16, 1977, he was an investigator for the Tuscaloosa Police Department. He was also employed as a security guard at Gay-fer’s. Fondren got off work at Gayfer’s at 9:15 p. m. that night. He stopped a vehicle at Pizza Hut for a license check. Shortly thereafter, Fondren saw a white male running from the Pizza Hut, waving and shouting. Fondren then heard a shot from the direction of Warehouse Groceries. Then Fondren blocked the road leading from the parking lot, when he saw a car leaving the lot at a high rate of speed. This car ran off the lot into a ditch.

Fondren handcuffed three men who were in the car. One of these was appellant. Out of the presence of the jury, Fondren testified that he saw a snub-nosed .357 caliber revolver in the car when he got the two passengers out of the car. When he walked to the driver’s side of the car, he saw a blue steel revolver lying on the ground by the car door. The snub-nosed revolver was loaded and cocked. Fondren also recovered a brown paper bag, a small caliber automatic pistol and a black leather holster. The automatic, the snub nose, the holster and the bag were taken from the car after Fondren had received a radio dispatch that Warehouse Groceries had been robbed. Appellant moved to suppress the evidence taken from the car on the ground that the search was illegal. The trial judge overruled this motion.

When the jury returned, Fondren testified to what evidence had been taken from the car in the ditch. Shortly after the three men were handcuffed, Officers McFerrin and Toxey of the Tuscaloosa Police Department arrived on the scene. Fondren testified that he turned the automatic, the snub nose, and the blue steel pistols over to Jim Brittain, the State Toxicologist.

Fondren testified that appellant was “patted down” on the scene by Officer Tox-ey. Toxey turned another weapon over to Fondren then. The gun belonged to Banks Sims. Fondren testified that the brown bag contained $466.00. The money was turned over to Police Captain Billy Tinsley. The bag also contained a wallet belonging to Jack Alexander.

George Toxey testified that he was a police officer for the City of Tuscaloosa. He stated that he responded to a call concerning a robbery at Warehouse Groceries. When he arrived on the scene he searched the three handcuffed men. He found a nickel plated Colt Python revolver with a four-inch barrel on the appellant. It was loaded. Toxey stated that he turned this weapon over to Fondren.

Billy Tinsley testified that he was a Captain in the Tuscaloosa Police Department. He received from Fondren a brown bag containing $466.00.

Joe Thrower testified that he was a police officer for the City of Tuscaloosa. He stated that he was present on the evening of February 16, 1977 when appellant was searched by Officers Toxey and McFerrin. Thrower further testified that seven rounds of .357 caliber ammunition were removed from the clothing of appellant.

James C. Brittain, III, testified that he was a Toxicologist for the Alabama Department of Toxicology and Criminal Investigation. On the evening of February 16, 1977, he received evidence involved in a robbery of Warehouse Groceries. Brittain received four firearms from Fondren at the officer’s office. These were: a Colt Python model 357 magnum caliber 6-shot double action revolver with a six-inch barrel, which had been fired twice; a .25 caliber Baretta semi-automatic pistol; a Colt brand Lawman, MK3 357 magnum caliber, six shot, double action revolver with a two and a half inch barrel, which had been fired three times, and a Colt brand Python model six-shot double action revolver with a four inch barrel which had not been fired.

After the presentation of the State’s case, appellant moved to exclude the State’s evidence in that a prima facie case was not established and that a variance existed between the allegations of the indictment and the proof adduced at trial.

Appellant contends that the trial court erroneously admitted evidence of a separate and distinct offense, the robbery of Jack Alexander. He argues that such evidence was not admissible as a part of the res gestae, citing McElroy’s Alabama Evidence, Third Edition (1977), Section 69(3). That section states in part that evidence of another crime is part of the res gestae if it is inseparably connected with or part of the crime charged.

Appellant here points out that the robbery of Jack Alexander occurred a few moments after the incident in the store, in a different location, and concerned a different victim.

The trial court did not err in allowing evidence of the robbery of Jack Alexander. No matter how many distinct crimes may be involved, all the details of one continuous criminal occurrence or adventure may be given as part of the offense with which defendant is charged. Summers v. State, Ala.Cr.App., 348 So.2d 1126; cert. denied 348 So.2d 1136. Also see numerous cases cited in Alabama Digest, Criminal Law Key Number 365(1).

We hold that evidence of the robbery of Jack Alexander, committed only moments after the robbery in the store, in the store’s parking lot, by the same parties was admissible as part of the res gestae of a continuous criminal adventure.

Appellant next argues that the trial court erroneously overruled appellant’s motion to exclude the State’s evidence on the ground that there was a variance between the indictment and the proof at trial.

At trial Randall Russell and Carol Henderson both testified that the money was the property of Warehouse Groceries, Inc.

To support his contention of error, appellant cites Gray v. State, Ala.Cr.App., 346 So.2d 974. There defendant was convicted of grand larceny for the theft of $200.00 from a narcotics agent. The indictment alleged that this money was the property of the City of Huntsville. No proof of this fact was offered at that trial.

The Court wrote:

“The indictment alleged in specific terms that the $200.00 taken from Officer William Harris at gunpoint was the personal property of the City of Huntsville, a municipal corporation. There is not one thread, glimmer or scintilla of evidence of the entire record to show that Officer Harris had any connection with the City of Huntsville as agent, servant or employee, or that any official of the City of Huntsville ever turned over to Harris any money in the performance of his duties as an undercover agent. There was no evidence that he ever had custody of any money belonging to the City of Huntsville as agent, bailee or otherwise.”
******
“[4] It was the wholly unnecessary to have alleged in the indictment that the money taken was the personal property of the City of Huntsville. Having done so it was incumbent upon the State to prove this allegation. Harris v. State, 44 Ala.App. 449, 212 So.2d 695.”

The case at bar is distinguishable. A variance between the indictment and proof as to ownership in a robbery case is immaterial so long as the offense is described with sufficient certainty to identify the act of robbery and to establish that the property was in the immediate actual possession of the person robbed. Oliver v. State, 55 Ala.App. 192, 314 So.2d 111. In an indictment for robbery, the ownership of property is properly laid in the party who has possession, either as owner, bailee or agent. Mays v. State, Ala.Cr.App., 335 So.2d 246.

Here the evidence was sufficient to support the conviction of appellant. The essential elements of the offense of robbery are: felonious intent; force or putting in fear as a means of affecting the intent; and by that means, taking and carrying away the property of another from his person or in his presence, all of these elements concurring in point of time. Summers v. State, supra; Lee v. State, Ala.Cr.App., 346 So.2d 31.

Two eyewitnesses testified that appellant accompanied the two other men who robbed the grocery store. They both testified that he stood with a gun over the wounded police officer in the store. He was identified by Jack Alexander as being present when he was robbed. Finally, a search of appellant revealed that he was in possession of Banks Sims’ police revolver.

The trial court did not err in denying appellant’s motion to suppress the evidence recovered by police at the scene. Fondren reasonably investigated the occupants of the car which ran into the ditch. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The weapons which Fondren saw were in plain view. At that time Fon-dren radioed police headquarters and was informed that Warehouse Groceries had been robbed. This gave Fondren probable cause to carry out a full search of the car and the occupants since exigent circumstances were present. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

There was more than ample evidence to support the verdict of the jury and the judgment rendered thereon. Appellant was positively identified by Officer Banks Sims and by Patricia Bush, a customer in the store during the robbery. Officer Sims’ gun was found in appellant’s pocket after he was arrested and searched. Jack Alexander also identified appellant as being present at the time he was robbed a few moments after the trio left the store. Alexander saw the robbery in progress inside the store and when they finally exited the store he was robbed at gunpoint. As to time and place the Alexander robbery was a part of the res gestae.

The three suspects were given the Miranda rights and warnings immediately after being arrested and each said he understood his rights.

In Jackson v. State, 229 Ala. 48, 155 So. 581, the Court said:

“Evidence of other and distinct criminal offenses, at other times and places, is admitted in evidence only in exceptional cases and for limited purposes. Among these are cases where such evidence may throw light on the motive, intent, scien-ter, or identity, and so tend to establish the guilt of the party of the offense for which he is being tried. The details of such other crimes are not admissible, except in so far as essential to disclose the motive or other matter for which it is admitted. Gassenheimer v. State, 52 Ala. 313; Ingram v. State, 39 Ala. 247, 84 Am.Dec. 782; Moore v. State, 10 Ala.App. 179, 64 So. 520; Davis v. State, 213 Ala. 541, 105 So. 677.
“But this case is governed by another and different principle. Everything constituting the one continuous transaction is admissible as of the res gestae. No matter how many distinct crimes may be involved, all the details of the one continuous criminal occurrence or adventure may be considered by the jury in passing upon the culpability, the wickedness, and depravity of the crime for which the party is being tried. In cases of robbery the jury is given a wide range of discretion in fixing the punishment. They may look to all the circumstances constituting part of the res gestae in meting out punishment within the limits prescribed by law. It follows all these circumstances are the subject of legitimate argument on the part of the solicitor. Ingram v. State, supra; Kennedy v. State, 182 Ala. 10, 62 So. 49; Smith v. State, 88 Ala. 73, 7 So. 52; 16 C.J. § 1115.”

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Ralph McCULLOUGH v. STATE.
    8 Div. 21.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.

      James H. Tompkins and N. Pride Tompkins of Tompkins & Tompkins, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Colbert County returned an indictment against the appellant, Charles Ralph McCullough, charging him with grand larceny. The appellant entered a plea of not guilty. A jury found the appellant guilty of grand larceny as charged. The trial court duly sentenced the appellant to 8 years in the penitentiary. Appellant’s motion for a new trial was denied and he appeals to this Court.

This appeal was submitted on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court, and is represented in this Court by the same counsel under court appointment.

Appellant contends that his conviction should be reversed because the trial court erred in two respects; first, by overruling appellant’s objections to statements made to the jury by state’s counsel during his closing argument; second, by overruling appellant’s motion for a new trial.

No evidence was presented to the trial court in support of appellant’s motion for a new trial. Neither the motion for a new trial nor exhibit “A” filed with it was under oath. Nowhere in this record do we find a copy of, or a statement of the matters argued to the jury by appellant’s counsel. We do not find a request by the appellant that either his argument or the state’s argument be transcribed by the court reporter. The record shows that during the closing argument of state’s counsel the following occurred:

“MR. JAMES TOMPKINS: Judge — just a minute — I want to object to that line of argument, I think it’s inappropriate.
BY THE COURT: Overruled.
(Mr. Patton continues).
MR. JAMES TOMPKINS: I object to his saying as a matter of fact, there’s no evidence to that.
BY THE COURT: Overruled. Gentlemen, let me again say to you in ruling on these objections, please don’t consider them as my comment on the evidence or anything like that or my feeling about it. Gentlemen, you are the sole judges of the evidence in the case. The attorneys have the right to argue to you the evidence and any reasonable and proper inference from the evidence. Go ahead.
(Mr. Patton continues).
MR. JAMES TOMPKINS: Judge, if it please the Court I want to object to this line of argument—
BY THE COURT: It’s overruled — excuse me — it’s overruled, in the judgment of the Court it is adequate — I say adequate excuse me — it is proper reply in kind.
MR. JAMES TOMPKINS: We’d like the record to show that he’s saying he went to Sylacauga and testifying to what he did down there and that’s what we object to.
BY THE COURT: And the Court does specifically rule that it is reply in kind to comments made by defense counsel during its closing statement. Go ahead Mr. Patton.”

It is the appellant’s duty to present the points he intends to raise upon the record, with reasonable certainty. If this is not done, so as to enable this Court to decide, without danger of mistake, the exceptions taken in the court below, or point reserved, will be disregarded, for uncertainty. Findlay v. Pruitt, Porter’s Reports, Vol. 9, Page 195; Autry v. State, 34 Ala.App. 225, 38 So.2d 348. In the case of Autry v. State, supra, Justice Harwood said: “Because of the fragmentary character of the portions of the argument copied into the record it is difficult if not impossible to review this asserted error. From the remarks of defense counsel, the Solicitor, and the court, we think it necessarily inferable that the portions of defense counsel’s argument were preceded by and related to other portions of his argument which are not set forth in the record.”

From the statements of counsel for the state and defense, and the statements and rulings of the trial court contained in this record it is apparent to us that this Court should not review the lower court’s rulings on statements made by state’s counsel in his closing argument to the jury due to the fragmentary manner in which such statements appear in the record. It appears from the record that there were matters before the trial judge that do not appear in this record. Under the facts shown in this record we cannot determine whether or not the statements made by state’s counsel were replies in kind to statements made by defense counsel in his argument to the jury. Autry v. State, supra; Lane v. State, 46 Ala.App. 637, 247 So.2d 679; Argo v. State, 277 Ala. 177, 168 So.2d 23; Mincy v. State, 262 Ala. 193, 78 So.2d 262.

We hold that under the record in this case the general principle that propriety of argument of counsel is largely within the trial court’s discretion, and this record fails to show an abuse of such discretion. Autry v. State, supra; Garrett v. State, 268 Ala. 299, 105 So.2d 541.

State’s evidence tended to prove that on August 2, 1977 Mr. Burns was building a home on Frankfort Road near Tuscumbia in Colbert County, Alabama; that he owned and had stored on the home lot 42 sheets of 4 X 8 X V2" plywood, two rolls of valley tin, 1-50 lb. box of nails, and other building materials; that the 42 sheets of plywood, 2 rolls of valley tin and box of nails were of the value of $556.98; that at about 5:30 P.M., when no one was present at the building site, the appellant and a companion drove a pickup truck in the yard of the building site and loaded the above named building materials on the truck and drove away; that the pickup truck was being driven by the appellant who was seen as he drove out of the yard of the building site and was followed and kept in sight all the time until the pickup truck was stopped five or six miles away from the building site; when the truck was stopped it had loaded on it all of the materials enumerated above; the materials were identified as the same materials loaded on the truck at the building site.

The appellant offered evidence of Mr. Harry who worked for West Building Materials in Sylacauga, Alabama, which tended to prove that appellant had on the afternoon of August 2, 1977 bought some plywood and nails from West Building Materials store in Sylacauga.

In rebuttal the state offered evidence that tended to prove that appellant had not bought any plywood and nails from West Building Materials in Sylacauga on the 2nd. day of August, 1977.

When there is a conflict in the evidence, the inferences to be drawn from the evidence, the weight of the evidence, and the credibility of the witnesses are all questions for the jury. We hold that the evidence is sufficient to support the jury verdict, and that the trial court did not err in overruling the appellant’s motion for a new trial. Vaughn v. State, 57 Ala.App. 134, 326 So.2d 662; Byrd v. State, 213 Ala. 333, 104 So. 830; Hunter v. State, 55 Ala. App. 475, 316 So.2d 722.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOYD, Justice.

text:
    Pearl BAULD, Appellant, v. J. A. JONES CONSTRUCTION COMPANY et al., Appellees.
    No. 51476.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied May 5, 1978.
    Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Lloyd & Henninger, St. Petersburg, for appellant.
    Claude H. Tison, Jr. of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appel-lees.
   BOYD, Justice.

In this personal injury action by Pearl Bauld against J. A. Jones Construction Company and numerous other defendants, brought in the Circuit Court for Pinellas County, recovery was sought on the grounds of negligence, breach of warranty, and strict liability. The defendant construction company moved for a summary judgment on the ground-that the applicable statute of limitations barred the action. The court granted the motion, entering a final summary judgment of nonliability in defendant’s favor. The plaintiff challenged the limitations statute on constitutional grounds, and the trial court held against her. We have jurisdiction of her appeal pursuant to Article V, Section 3(b)(1), Florida Constitution.

Between 1956 and 1961 appellee, a general contractor, performed construction and improvement work at Bayfront Medical Center in St. Petersburg. Part of the work consisted of installation and modification of a pneumatic message conveyor system. Appellee did its last work on the hospital on August 16, 1961. On July 8, 1972, the appellant, then an employee of the hospital, was struck in the face by a pneumatic capsule and injured. At the time of the incident there was in effect a four-year statute of limitations for negligence/products liability actions. Section 95.11(4), Florida Statutes (1971).

In 1974 there was a substantial revision of Chapter 95, Florida Statutes. Chapter 74-382, Laws of Florida. The changes became effective January 1,1975. As revised, the pertinent provisions are as follows. Section 95.11(3)(a), Florida Statutes (1975), provides that the limitations period for negligence actions is four years. Section 95.031 deals with the computation of time. It states that “[ejxcept as provided . in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.” Subsection (1) of Section 95.031 provides, in pertinent part, that “[a] cause of action accrues when the last element constituting the cause of action occurs.” Subsection (2) provides that in actions for products liability, the period runs “from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence,” but that in any event the action must be begun “within 12 years after the date of delivery of the completed product to its original purchaser ... regardless of the date the defect in the product was or should have been discovered.”

Section 95.11(3)(c) provides that an action founded on the design, planning, or construction of an improvement to real property must be brought within four years of “the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer.” Provided, however, that if the action involves a latent defect, the time runs from the date the defect is discovered or should have been discovered. But in any event the action must be begun within twelve years from the date of possession by the owner or the termination or completion of the contract.

Section 95.022 provides that the revisions became effective January 1, 1975, but that any action that would be barred under the new act that would not have been barred under prior law may be brought before January 1,1976, and if not brought by then, is barred.

Appellant calls our attention to the two interrelated twelve-year provisos contained in the revised statute, and characterizes them as being statutes of repose rather than statutes of limitation. We recognize the fundamental difference in character of these provisions from the traditional concept of a statute of limitations. Rather than establishing a time limit within which action must be brought, measured from the time of accrual of the cause of action, these provisions cut off the right of action after a specified time measured from the delivery of a product or the completion of work. They do so regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right. But appellant presents us with no authority or argument to support her assertion that it is not within the power of the Legislature to enact such a statute. She cites Kluger v. White, 281 So.2d 1 (Fla.1973), for our holding there, under Article I, Section 21, Florida Constitution, that:

. where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

But the revisions in question did not abolish any right of access to the courts; they merely laid down conditions upon the exercise of such a right.

Appellant also calls our attention to the effect of the operation of the statute on her case. At the time her injury occurred, the statute of limitations in force provided that she would have four years in which to bring her action. Thus she could sue any time up to July 8, 1976. The intervening revision would cut off her right of action against appellee twelve years after its last work on the hospital, or on August 16, 1973. But taking into consideration the savings clause in Section 95.022, she had until January 1, 1976 to bring the action, still about seven months earlier than when she would have been barred under the old statute.

There is no vested right in a litigant to the benefit of the statute of limitations in effect when his cause of action accrues. This Court has said that:

. where mere inchoate rights are concerned, depending for their existence on the law itself, they are subject to be abridged or modified by law, and . statutes of this character apply to such rights existing at the time of their passage, provided a reasonable time is given after the passage of the act, and before it would operate as a bar, for the party to exercise the right.

Hart v. Bostwick, 14 Fla. 162, 181 (1872). The one-year savings period provided for here is a reasonable time. Campbell v. Horne, 147 Fla. 523, 3 So.2d 125 (1941). See also Buck v. Triplett, 159 Fla. 772, 32 So.2d 753 (1947), and H.K.L. Realty v. Kirtley, 74 So.2d 876 (Fla.1954).

The judgment of the Circuit Court for Pinellas County is affirmed.

It is so ordered.

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

ADKINS, J., dissents.


author: PER CURIAM.

text:
    Robert James MAGUIRE, Petitioner, v. STATE of Florida, Respondent.
    No. 51492.
    Supreme Court of Florida.
    March 30, 1978.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Certiorari is granted and the case is remanded for a new trial. Wheeler v. State, 344 So.2d 244 (Fla.1977). In view of our disposition of the case, we do not reach petitioner’s other argument.

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

ADKINS, J., dissents.


author: KARL, Justice.

text:
    OSCEOLA SERVICE COMPANY, Petitioner, v. Paula F. HAWKINS et al., Respondents.
    No. 51599.
    Supreme Court of Florida.
    March 30, 1978.

      R. M. C. Rose and Stanley M. Danek of Myers, Kaplan, Levinson & Kenin, Tallahassee, for petitioner.
    Leon F. Olmstead and Raymond E. Ves-terby, Tallahassee, for Florida Public Service Commission, respondents.
   KARL, Justice.

We have for review by petition for writ of certiorari Order No. 7736 of the Florida Public Service Commission.

On June 23, 1976, petitioner applied to the Public Service Commission for authority to increase rates for its water and sewer systems in Osceola County on an interim and permanent basis to produce $96,425 and $183,444 gross annual revenues for its water and sewer systems respectively. Finding, from a preliminary review of the financial schedules filed, that the company’s finances were in a critical condition requiring immediate rate relief, the Commission, by Order No. 7400 entered August 24, 1976, granted interim rate relief (to produce $95,-348 and $177,538 for water and sewer respectively), effective for service on and after September 1, 1976.

Petitioner, a private utility company, began providing service to the public in 1972 and is now servicing an entirely commercial area in Osceola County lying along U.S. 192 between the western edge of Disney World and U.S. 27 (nine large motels, one service station and a convenience store). Because of the 1973-74 economic downswing, the oil embargo and the financial collapse of one of its principals, petitioner suffered serious financial reverses and was unable to pay interest on its construction loan from mid-1972 until November of 1976. The unpaid interest as of the end of the test year 1975 amounted to approximately $195,000. The construction loan and land mortgage are in serious default, and foreclosure of the construction loan has been delayed pending conclusion of these proceedings. In their application for emergency rate increase, petitioner states that the requested gross revenues are designed to refinance the debt at interest rates of 10%, retire that debt, pay necessary expenses and provide a risk or contingency fund to assure financial integrity, continued operation and improvement of service.

Public hearing was held, and the Commission, by Order No. 7736 entered April 5, 1977, granted total gross operating revenues to the petitioner of $82,888 and $164,-434 for the water and sewer systems respectively and permitted petitioner to change its billing from quarterly to monthly. In Order No. 7736, the Commission determined that it must set rates in accordance with the prescriptions of Section 367.081, Florida Statutes (rate base/rate of return) and stated:

“The modified ‘cash flow’ approach used by the company (starting with cash needed to service debt and backing into rate of return) does not comply with these standards. The amount of debt the company seeks to service exceeds rate base. To require the customers to provide interest coverage thereon is contrary to Section 367.081(2), Florida Statutes.”

The Commission went on to say:

“The rate base we find, which, as hereinafter noted, includes capital items required by a governmental agency to be provided within twenty-four (24) months (by July 18,1978), still does not equal the total amount of the debt and accumulated interest (Schedule B-l-(B-2) WS, Exhibit 6).
“In this respect it is suggested that the second mortgagee could better afford to forego the payments of principal and interest thereon, so long as the primary obligation is kept current. This, and the additional capital investments, will enhance the value of the security and thus enure to the benefit of the second mortgagee.
“It is to be noted the owners have minimal capital investment ($500) in this company. This, in part, is the cause of the problems of meeting debt requirements. If there was a reasonable equity paid into the company, cash flow provided by the return thereon could provide the source of funds to pay the excess interest expense and to amortize the debt principal. These cannot be provided through rates.
“We believe our findings and conclusions herein will provide adequate revenue to comply with Section 367.081, Florida Statutes, and that this will enable the utility and its owners to work out its financial problems. In reaching this conclusion, we note the company position has improved with the improving economy.”

The order further provided for the refunding of excess received under interim rates over that authorized by the final order.

Our careful consideration and analysis of the petition, the record, briefs and arguments of counsel sustain the view that the findings of the Commission are supported by competent substantial evidence and that, in entering its orders, respondent Commission met the essential requirements of law.

Accordingly, the petition for writ of cer-tiorari is denied.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur.


author: HATCHETT, Justice.

text:
    STATE of Florida, Appellant, v. Richard K. McDONALD, Appellee.
    No. 51332.
    Supreme Court of Florida.
    March 31, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Howard L. Crown, Asst. Public Defender, St. Petersburg, for appellee.
   HATCHETT, Justice.

The State of Florida has appealed to this Court to resolve whether Section 318.14, Florida Statutes (1975) violates the Florida Constitution, Article III, Section 6, which provides that every law “shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” This Court has jurisdiction to review this cause under Article V, Section 3(b)(1). We reverse the trial court’s order and hold the statute to be constitutional.

Appellee, McDonald, was issued a traffic citation for careless driving. In addition, appellee refused to sign the summons as required by Section 318.14, Florida Statutes (1975), and was therefore charged with a second degree misdemeanor. The pertinent portions of that statute read:

(1) Except as provided in s. 318.17, any person cited for a violation of chapter 316, chapter 325, part II, or s. 339.30, s. 340.23, or s. 239.55 shall be deemed to be charged with a noncriminal infraction and shall be cited for such an infraction and cited to appear before an official.
(2) Any person cited for an infraction under this section may:
(a) Post a bond, which shall be equal in amount to the applicable civil penalty established in s. 318.18; or
(b) Sign and accept a citation indicating a promise to appear.
The officer may indicate on the traffic citation the time and location of the scheduled hearing and shall indicate the applicable civil penalty established in s. 318.18.
(3) Any person who willfully refuses to post a bond or accept and sign a summons shall be guilty of a misdemeanor of the second degree.

Appellee filed a motion to dismiss on the grounds that the title of this act fails to notify the public, as required by the Constitution, that the statute creates a criminal penalty for willful refusal to sign a traffic citation. In addition, he argued that this legislative act embraces more than one subject matter, since it provides for the decriminalization of traffic infractions, as well as creating a separate criminal offense. The trial court granted the motion to dismiss. The State asserts that this was error, because the statute was designed to accomplish a single purpose which is stated in its title: the establishment of procedures for the adjudication of traffic infractions. The State contends that Section 318.14(3) is merely part of the scheme provided to effectuate that purpose.

Legislative enactments are presumptively valid. In State ex rel. Shevin v. Metz Construction Co., Inc., 285 So.2d 598 (Fla.1973), we stated:

It is elementary that a statute is clothed with a presumption of constitutional validity, and if fairly possible a statute should be construed to avoid not only an unconstitutional interpretation, but also one which even casts grave doubts upon the statute’s validity, [citation omitted] With respect to the sufficiency of the title of an Act, all the usual presumptions of validity apply, and we must assume that the Legislature intended to enact a valid law. (at 600)

The purpose of Article III, Section 6, Florida Constitution (1968) which requires that the subject of all legislation be briefly expressed in the title and that any legislative acts encompass only one subject, is to give adequate notice to the Legislature and to the public of what the law entails. United Gas Pipeline Co. v. Bevis, 336 So.2d 560 (Fla.1976). Further, a statute will not be unconstitutional for embracing more than one subject if the title is sufficiently broad to connect it with the general subject matter of the enactment. In Smith v. City of St. Petersburg, 302 So.2d 756 (Fla.1974), this Court reasoned that:

For a legislative enactment to fail, the conflict between it and the Constitution must be palpable, however, where by reasonable intent the title can be determined to be sufficiently broad as to include a provision that can be deemed to reasonably connect it with the subject of the enactment, then it should not be declared inoperative and unconstitutional. In other words, the title should reasonably and fairly give notice of what one may expect to find in the body of the enactment, (at 758)

The Constitutional requirement that the subject of the law be briefly stated in the title does not require a detailed explanation of every provision, but requires only that the matter under consideration be fairly related to the subject described in the title. Smith v. Davis, 231 So.2d 517 (Fla.1970).

We determine that Section 318.14(3), Florida Statutes (1975) is sufficiently related to the general subject matter of this act, which provides for the establishment of procedures for the adjudication of traffic infractions. Further, the title provides reasonable notice that this complete revision of the procedures for handling traffic infractions may also include a criminal penalty for failure to comply with these mandatory procedures.

Accordingly, we hold the statute to be constitutional and remand the case to the trial court for proceedings consistent with this opinion.

ADKINS, Acting C. J., and BOYD, SUNDBERG and KARL, JJ., concur.

ENGLAND, J., dissents.

      . Adopting the dissenting opinion of Judge Reed in 227 So.2d 342 (Fla. 4th DCA 1969).

      . The title in Chapter 74-377, Laws of Florida reads: AN ACT relating to the adjudication of traffic infractions; creating chapter 318, Florida Statutes, to be known as the “Florida uniform disposition of traffic infractions act”; providing definitions; providing for decriminalization of certain traffic violations; establishing procedures for adjudication of traffic infractions; establishing standard statewide civil penalties for infractions; providing for mandatory hearings for certain infractions; establishing notification duties of the department; amending section 316.026, 316.061, 316.067, 316.112, 316.164, 339.30, 340.23 and 239.55, Florida Statutes; providing for penalty provisions consistent with this act; providing that the provisions of section 316.0261, Florida Statutes, shall apply to the disposition of all civil penalties and forfeitures received by a county court pursuant to chapter 318, Florida Statutes; providing an effective date.


author: ENGLAND, Justice.

text:
    GENERAL DEVELOPMENT UTILITIES, INC., Petitioner, v. Paula HAWKINS, William T. Mayo, William H. Bevis, as and constituting the Florida Public Service Commission, Respondent.
    No. 51405.
    Supreme Court of Florida.
    March 31, 1978.
    R. M. C. Rose and Stanley M. Danek of Myers, Kaplan, Levinson & Kenin, Tallahassee, for petitioner.
    Leon F. Olmstead and Raymond E. Ves-terby of the Florida Public Service Commission, Tallahassee, for respondent.
   ENGLAND, Justice.

General Development Utilities, Inc. has asked us to review an order of thp Florida Public Service Commission which, the company asserts, approves a rate increase smaller than the company requested without competent substantial evidence in the record to support the Commission’s decision. We have jurisdiction to consider this challenge to Commission action. Article V, Section 3(b)(3), Florida Constitution; Section 350.641, Florida Statutes (1975).

Petitioner operates a sewer system subject to the jurisdiction of the Public Service Commission. In presenting its request for a rate increase, the company’s main witness on economic matters proposed that the Commission compute the company’s rate of return on the basis of a hypothetical equity to debt ratio of 50% to 50%. The company’s actual equity/debt ratio was 92.19% to 7.81%. The company’s witness also proposed that the cost of debt be considered as 10%, although the actual embedded cost of company debt was 7.6%.

In its order, the Commission rejected the witness’s hypothetical figures saying:

“We cannot agree with this approach by GDU. First, we do not believe that a 50-50 debt to equity ratio is realistic because very few, if any, water company stocks are now selling above book and the average debt/equity ratio of these water companies is 62/«8%. In addition, we see no reason to use a hypothetical debt cost of 10% when the imbedded [sic] cost is actually 7.6%.”

The company challenges both of these determinations here, and our analysis must address both. Section 120.68(7); Florida Statutes (1975).

We have no difficulty sustaining the Commission’s decision to use an actual rather than hypothetical cost of debt. The selection of that figure is supported by hard evidence in the record. Section 120.68(10), Florida Statutes (1975). We have insurmountable difficulties, however, in sustaining the Commission’s choice of an equity/debt ratio.

The Commission selected a ratio which nowhere appears in the record, apparently fabricating one for the company based on information it has compiled for water companies generally. The arbitrary selection of this ratio as a “fact” comes from outside the record of the proceeding and plainly violates the notions of agency due process which are embodied in the administrative procedure act. See Section 120.59(2), Florida Statutes (1975), which directs that findings of fact shall be explained by reference to “facts of record”; Section 120.57(l)(b)7, which states that findings of fact “shall be based exclusively on the evidence of record and on matters officially recognized”; and Section 120.61, which contemplates notice of matters to be officially recognized and the opportunity to contest them.

We conclude that the Commission’s decision on petitioner’s equity/debt ratio is outside its range of delegated discretion, and remand this case to the Commission for further proceedings on that issue. The Commission is not obliged to accept either the company’s suggested hypothetical or its actual equity/debt ratio if there are valid reasons for rejecting them, but it is required to allow the company to know in advance and to challenge the data on which it chooses to rely.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.

      . This ratio is erroneously shown in the Commission’s order on reconsideration as “92.19% equity/.0781% debt”.

      . See, e. g., Citizens of State of Florida v. Hawkins, No. 51,399, 356 So.2d 254, 260 n. 18 (Fla., opin. filed February 16, 1978).

      . Although the Commission adopted as a standard the average equity/debt ratio of public water companies and the company operates only a sewer system, the company’s witness compared and relied upon data from water companies and other types of utilities.

      . In denying reconsideration of its original order, the Commission rejected the record equity/debt ratio on the grounds that the company’s actual capital structure was “as unsatisfactory as the [hypothetical] one presented by the applicant”, and justified the one selected on the ground that this Court in Gulf Oil Co. v. Bevis, 322 So.2d 30 (Fla.1975), “has recognized and approved the application of Commission ‘ . . . knowledge and expertise . . . ’ in consideration of matters.” If this justification is intended to suggest that the Commission may officially recognize matters such as the financial data of public water companies in a final order without having accorded the parties notice or an opportunity to challenge the data, it violates the requirements of Section 120.61. If the Commission’s reliance on Gulf Oil is a guide to what the Commission considers within the exercise of its general expertise, the reliance is misplaced. The Gulf Oil decision predated the administrative procedure act adopted in 1974, and can no longer be considered authoritative in the area of administrative due process.

      . § 120.68(12)(a), Fla.Stat. (1975).

      . § 120.68(13)(a)l, Fla.Stat. (1975).


text:
    Luther Judson McNAMARA, Appellant, v. STATE of Florida, Appellee.
    No. 51647.
    Supreme Court of Florida.
    March 31, 1978.
    M. E. Cullom of Cullom & Cullom, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   KARL, Justice.

This cause is before us on direct appeal from the judgments of the Circuit Court, in and for Seminole County. We have jurisdiction because the trial court, in denying appellant’s motion to suppress evidence obtained by wiretap or intercepted wire communications, construed Article II, Section 5, Florida Constitution, thereby vesting jurisdiction in this Court. Article V, Section 3(b)(1), Florida Constitution.

Although it is unnecessary to the disposition of this cause to resolve the constitutional question and, therefore, we will not do so, this does not divest us of jurisdiction to dispose of the other issues involved sub judice. P. C. Lissenden Co., Inc. v. Board of County Commissioners of Palm Beach County, 116 So.2d 632 (Fla.1959).

Appellant was informed against for carrying a concealed firearm in violation of Section 790.01, Florida Statutes (1975), and was indicted by the Statewide Grand Jury for two counts of bookmaking, which were stated in the indictment to have occurred in Seminole County, Florida. The trial court denied appellant’s motion to dismiss the charge of carrying a concealed weapon, which motion alleged that appellant came within the exception contained in Section 790.25(3)(i), (m) and (n), Florida Statutes (1975), since the weapon found on appellant’s person was found as a result of a search of his place of residence, and denied appellant’s motion- to suppress the pistol found on his person.

Appellant also filed a motion to suppress evidence taken by wiretap or intercepted wire communications and related to the bookmaking charges, and contended that the authorization for wire interception stated that the interception was in Seminole County while the applicant was a deputy sheriff of Orange County and, as such, was not one of the persons authorized to make application for the interception of wire or oral communications. The trial judge denied this motion to suppress and found that Officer Calamia, the deputy sheriff in question, could lawfully be a deputy sheriff of Seminole County, Florida, and, at the same time, be a deputy sheriff of Orange County, Florida. Reserving his right to appeal the pretrial rulings made by the trial court prior to entry of his pleas, appellant entered pleas of nolo contendere to one count of bookmaking and to carrying a concealed weapon. Initially, we find that petitioner was properly permitted to plead nolo contendere conditioned on reservation of the questions as to legality of the seizure of evidence to be used against him. This Court, in State v. Ashby, 245 So.2d 225 (Fla.1971), held that the trial court did not err in permitting Ashby to plead nolo con-tendere conditioned on reservation of a question of legality of evidence seized since the question reserved was a question of law. The plea of nolo contendere waives all defects in a criminal proceeding with the exception of jurisdictional ones, and in order to reserve the right to appeal a question of law, appellant must expressly reserve the same by conditioning his plea on the reservation of the specific, narrowly-drawn question of law. Cameron v. State, 291 So.2d 222 (Fla. 4th DCA 1974), writ disch. 338 So.2d 817 (Fla.1976).

Sub judice, appellant reserved the right to appeal the denial of his motion to suppress the pistol and his motion to dismiss the information based on the fact that the pistol was found in his place of residence. He now argues before this Court that the state failed to show probable cause to believe the appellant was armed, and he abandons his argument made in the motion to dismiss the information that he came within the exception of Section 790.25(3)(i), (m) and (n), Florida Statutes (1975).

The facts relating to the seizure of this pistol, as they appear in the hearing on the motions to suppress and to dismiss and the plea hearing, reveal that pursuant to the execution of a search warrant, not contested to be invalid, several officers, including Officers Calamia and Cook, were present in appellant’s apartment in Seminole County, Florida, when he returned home on the afternoon of November 1,1975. The search warrant described the material sought to be obtained as being kept in violation of the laws which prohibit maintaining a gambling house, unlawful wagering and bookmaking. Having heard noise outside the apartment and believing someone to be just outside the apartment door, Officer Calamia opened the door and observed appellant, wearing slacks and a shirt, in the hallway. Appellant testified that he had his hand in his pocket when the door was thrust open. Ca-lamia ordered appellant to come into the apartment and to place his hands against the wall. Calamia testified that from the rear, he could see a bulge in appellant’s back pocket. He then proceeded to frisk appellant for a weapon. A four-inch, blue, R.G. 22-caliber, snubnose pistol was found in appellant’s right, rear pocket. Officer Cook testified that he had information that appellant was supposed to be armed with a weapon on his person and advised Calamia to expect that appellant would be armed.

Appellant contends that the trial court erred in denying his motion to suppress the pistol seized from his person and argues that there was no probable cause to believe that he was armed. We cannot agree with appellant that the trial court erred in denying his motion to suppress. The ruling of the trial court on a motion to suppress, when it comes to the reviewing court, is clothed with the presumption of correctness, and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court’s ruling. Cf. Glas v. State, 329 So.2d 341 (Fla. 3rd DCA 1976), Rodriguez v. State, 189 So.2d 656 (Fla. 3rd DCA 1966), cert. den. Suarez v. Florida, 389 U.S. 848, 88 S.Ct. 66, 19 L.Ed.2d 116. We find that under the circumstances present in the instant cause, the officers had probable cause sufficient to justify the frisking of appellant for their own safety. Cf. Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976), Williams v. State, 294 So.2d 37 (Fla. 3rd DCA 1974), cert. den. 299 So.2d 602 (Fla.1974), State v. Brooks, 281 So.2d 55 (Fla. 2d DCA 1973), State v. Woodard, 280 So.2d 700 (Fla. 2d DCA 1973).- In determining the reasonableness of the governmental search of a citizen’s person, the Supreme Court of the United States, in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), emphasized that the facts of the search and seizure should be judged against the objective standard of whether the facts available to the police officer at the time of the seizure “warrant a man of reasonable caution in the belief” that the action was appropriate. Applying the principles enunciated in Terry v. Ohio, supra, the District Court of Appeal, in Ingram v. State, 264 So.2d 109 (Fla. 4th DCA 1972), concluded:

“By applying the principles expressed in Terry v. State of Ohio, we conclude that under the facts of the present case, the police officer had a reasonable ground under the circumstances of his encounter with the defendant to believe the defendant to be armed and dangerous and made a reasonably limited search for the purpose of neutralizing such danger. For us to hold that the officer was required to disregard the reports he had received because they were of a hearsay nature is not reasonable. Prudent people act on ‘hearsay’ in countless matters.
“What gives reasonableness to the forcible seizure of Ingram is the fact that the encounter was not the result of an intentional effort to confront an armed and dangerous man. Officer Pagano was pursuing a proper investigative function in the performance of the duty of his office. . . . ”

The police officer in Ingram v. State, supra, while investigating an abandoned automobile, approached the defendant for the purpose of inquiring whether he had any information concerning an abandoned automobile. Upon recognizing the defendant as Ingram and having previously heard that Ingram was armed with a revolver, the officer proceeded to frisk him and found a revolver under Ingram’s belt. The trial court denied the motion to suppress the revolver, and the District Court of Appeal affirmed.

The officers searching appellant’s apartment pursuant to a search warrant were aware that they were searching the apartment in connection with the investigation of appellant’s bookmaking activities, and they had been informed that he was armed. Since persons engaging in this type of criminal activity, i. e. bookmaking, deal with large sums of money, it is not unreasonable to assume that they are armed. When the police officer opened the door, appellant had his hand in his pocket. From the rear, a bulge in appellant’s rear pocket was visible. Under the totality of the circumstances, the officers were justified in frisking appellant for their own safety. Therefore, we affirm the trial court’s denial of the motion to suppress the pistol.

Appellant further argues that the statewide grand jury does not have the power to indict for a gambling offense which occurs only in one county since the Statewide Grand Jury is intended as supplemental to the existing county grand jury system where certain crimes, although committed in one county, have a nexus with two or more counties; that its jurisdiction is statutorily limited to multi-county criminal activity; that the indictment charged offenses occurring in Seminole County only and showed no connection of the charged offenses with activities in a second county.

Section 905.32, Florida Statutes (1975), explains the legislative intent for the enactment of the Statewide Grand Jury act as follows:

“It is the intent of the legislature in enacting this act to strengthen the grand jury system and enhance the ability of the state to detect and eliminate organized criminal activity by improving the evidence-gathering process in matters which transpire or have significance in more than one county.”

In State v. Ostergard, 343 So.2d 874 (Fla. 3rd DCA 1977), the District Court of Appeal, Third District, affirmed the trial court’s dismissal of an indictment returned by the second statewide grand jury since the indictment failed to show on its face that the statewide grand jury had subject matter jurisdiction because the indictment charged that the offenses allegedly occurred in Dade County only. Therein, the District Court explicated:

“. . . [Ajppellees contend that the subject matter jurisdiction of statewide grand juries is not inherent, but is limited by statute. As such, appellees argue that in order for a statewide grand jury indictment to be valid, the statutory prerequisites of subject matter jurisdiction must be facially visible.
“We agree with appellees’ contention. Because of the general secrecy and confidentiality which surrounds a grand jury proceeding (Section 905.24, Florida Statutes [1975]) in order for a proper evaluation of an indictment to be made by a defendant, it becomes necessary that proper jurisdictional allegations be made on the face of said indictment. Compare Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972).
“The aforementioned statutory sections quoted in the body of this opinion, along with the Petition of the Governor and Empaneling Order of the Florida Supreme Court make it clear that the jurisdiction of the Second Statewide Grand Jury was limited to multi-county offenses. We therefore hold that absent the proper jurisdictional allegations on the face of the indictments, the Second Statewide Grand Jury was without authority to properly indict appellees and dismissal was proper.”

State v. Ostergard, supra, at 877. Judge Barkdull, in his specially concurring opinion, opined:

“The statewide Grand Jury, as created by the Legislature, was created solely according to the very wording of the statutes themselves to investigate multi-county crimes and nothing more. The jurisdiction of the Statewide Grand Jury is limited to certain crimes which have i* * * occurred, in two or more counties as part of a related transaction, or when any such offense is connected with an organized criminal conspiracy affecting two or more counties.’ Section 905.34, Fla.Stat. It has no more right to indict for a crime committed in a single county than a Grand Jury for the Eleventh Judicial Circuit in and for Dade County would have the right to indict for a crime committed in the Broward circuit. The Legislature might have given the statewide Grand Jury such power, but it did not. If a statewide Grand Jury finds evidence of a local crime it should forward its evidence to the appropriate Grand Jury for that county;
the same as if the Eleventh Judicial Circuit Grand Jury investigating crime in Dade County discovers evidence relating to a crime in Broward it cannot indict, but must forward the evidence to the appropriate Grand Jury of the Circuit Court in and for Broward County.”

State v. Ostergard, supra, at 877.

We concur with the decision and rationale of the District Court in State v. Ostergard, supra, and with the special concurring opinion of Judge Barkdull, and we hold that absent allegations of multi-county activity on the face of the indictments, the Statewide Grand Jury was without authority to properly indict appellant. To the extent that State v. Barnett, 339 So.2d 1159 (Fla. 2d DCA 1976), is inconsistent herewith, it is disapproved.

Accordingly, we find that the trial court properly denied the motion to suppress the pistol. However, since the Statewide Grand Jury was without authority to properly indict appellant, the conviction of the charge of bookmaking is reversed.

It is so ordered.

BOYD, SUNDBERG and HATCHETT, JJ., concur.

OVERTON, C. J., and ENGLAND, J., dissent.

      . By this decision, we do not purport to determine what activity is necessary to make the crime charged inter-county so as to fall within the jurisdiction of the statewide grand jury. We do point out, however, that the legislative intent enunciated in § 905.32, Fla.Stat. (1975), is extremely broad. This section states the purpose of the act to be “to detect and eliminate organized criminal activity by improving the evidence-gathering process in matters which transpire or have significance in more than one county." (Emphasis supplied.)


text:
    Jack BESONER et al., Plaintiffs, v. Grady CRAWFORD, Chief Judge, etc., Defendant.
    No. 51865.
    Supreme Court of Florida.
    March 31, 1978.
    Bruce W. Greer of Arky, Freed, Stearns, Watson & Greer, Miami, for plaintiffs.
    Stuart Simon, Dade County Atty. and Murray A. Greenberg, Asst. County Atty., Miami, for defendant.

      Duane Anderson of Sams, Anderson & Ward, Miami, for Bert Friedman, B. A. Roland, Marty LeShaw and Joseph Troiano, intervenors.
   PER CURIAM.

' This ease was filed with the court as an application for constitutional or other necessary writ pursuant to Florida Appellate Rule 4.5(g) which provides:

“g. Constitutional writs.

(1) In Aid of Prescribed Jurisdiction. Application for constitutional or other writs necessary to the complete exercise of the jurisdiction of the Court will be entertained only after reasonable notice to the adverse party. No such petition will be entertained unless the case is one in which the Court may properly acquire jurisdiction and then only when it is made clearly to appear that the writ is in fact necessary in aid of an ultimate power of review and that a supersedeas order entered by the lower court will not completely preserve the Court’s jurisdiction, or that the lower court has erroneously refused to enter such an order.”

This application is not sought to protect existing jurisdiction of the court. The application seeks to use the constitutional all writs power of the court as an independent basis for jurisdiction.

The Chief Justice of the Supreme Court has administrative powers over all courts within the state pursuant to Fla.R.Civ.P. 1.020(b)(2) which provides in part:

The chief judge shall exercise administrative supervision over all courts within the judicial circuit in the exercise of judicial powers and over the judges and officers of the courts, and shall be responsible to the chief justice of the supreme court. (emphasis added)

Accordingly, this application for constitutional writ is dismissed. The Chief Justice, in the exercise of supervisory power, will communicate with these parties and will take appropriate action with advice of the court.

It is so ordered.

OVERTON, C. J., and BOYD, HATCH-ETT and KARL, JJ., concur.

ADKINS, J., dissents.


text:
    NORTH AMERICAN MORTGAGE INVESTORS, a Massachusetts Business Trust, Appellants, v. CAPE SAN BLAS JOINT VENTURE, a Georgia Partnership, et al., Appellee.
    No. BB-254.
    District Court of Appeal of Florida, First District.
    June 17, 1977.
    J. Marshall Conrad of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellants.
    Ernest W. Welch of Welch, Hilton, Bennett, Logue & Burke, Panama City, D. Michael Chesser, James W. Middleton, Fort Walton Beach, for appellee.
   PER CURIAM.

We approve and adopt the conclusions and reasons set forth in the final judgment appealed which identifies and discusses all the issues presented.

The judgment is affirmed.

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: SCHEB, Judge. SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. James Benny YOUNG, Appellee.
    No. 77-757.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1978.
    Rehearing Denied April 7, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    M. David Alexander of Boswell, Boswell & Conner, Bartow, for appellee.
   SCHEB, Judge.

In a prosecution for reckless operation of a motor vehicle resulting in death, can the state charge a defendant under the general manslaughter statute, or must he be charged under the vehicular homicide statute having a less severe penalty? The trial court concluded it was incumbent upon the state to charge a defendant under the vehicular homicide statute. We agree.

The state’s amended information charged defendant Young with manslaughter arising out of the negligent, careless, and reckless operation of a tractor trailer which resulted in the death of Lillie Speed Neal in January 1977. The charge was filed under Section 782.07, Florida Statutes (1975), the general manslaughter statute which classifies the offense as a second-degree felony. Upon defendant’s motion, the trial court dismissed the amended information with leave to the state to file another information alleging a violation of Section 782.071, Florida Statutes (1975), the vehicular homicide statute. Section 782.071 defines vehicular homicide as:

[T]he killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree.

On this appeal the state contends the trial court erred in dismissing the amended information because defendant was effectively charged with manslaughter under Section 782.07, which states:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree.

It is a general principle of statutory construction that statutes on the same subject should be harmonized when possible, but that a statute dealing specifically with a subject takes precedence over another statute covering the same subject in general terms. Adams v. Culver, 111 So.2d 665 (Fla.1959); Marston v. Gainesville Sun Publishing Co., 341 So.2d 783 (Fla. 1st DCA 1976). A related principle is that an earlier penal statute must yield to a later one dealing with the same subject and providing a different penalty. 1A Sutherland Statutory Construction, Section 23.26 (C. Sands 4th rev. ed. 1972). See Adams v. Culver, supra.

In Adams a defendant sought habeas corpus to overturn his conviction under Section 800.04, Florida Statutes (1957), prohibiting lewd and lascivious conduct in the presence of a minor under fourteen years of age. The conduct with which the defendant was charged, i. e., exhibiting a pornographic picture to a child, was also proscribed by Section 847.01, Florida Statutes (1957), which specifically prohibited the exhibition of pornographic pictures to persons under seventeen. The lewd-and-lascivious statute carried a maximum penalty of ten-years imprisonment; the pornographic-picture statute a maximum of three years. Based on the principles of statutory construction previously mentioned, the Supreme Court of Florida held the pornographic-picture statute alone was applicable. Justice Roberts, writing for the court, said:

Assuming, arguendo, that this is a “lewd or lascivious act” clearly within the intendment of § 800.04, cf. Boles v. State, 1946, 158 Fla. 220, 27 So.2d 293, the fact remains that the exhibition of a lewd and pornographic picture has been specially and explicitly dealt with by Subsections (1) and (2) of § 847.01, supra. It follows that . . . the specific statute, alone, is applicable to the offense charged against petitioner [defendant].

111 So.2d at 667.

Turning to the instant case, it becomes apparent that the vehicular homicide statute is the only statute under which defendant can be prosecuted. Though the general manslaughter statute has in the past been construed to include the negligent operation of an automobile resulting in death, the vehicular homicide statute, enacted subsequently to the manslaughter statute, deals specifically with this situation. Moreover, the legislature has prescribed different penalties for the two offenses. Manslaughter is a second-degree felony with a maximum penalty of fifteen years in prison or a $10,-000 fine, or both. Section 775.082(3)(c) and 775.083(l)(b), Florida Statutes (1975). Vehicular homicide, on the other hand, is a third-degree felony carrying a maximum penalty of only five-years imprisonment or a $5,000 fine, or both. Section 775.082(3)(d) and 775.083(l)(c), Florida Statutes (1975).

Although this point is of first impression in Florida, other jurisdictions have resolved the issue. In Atchley v. State, 473 P.2d 286 (Okl.Cr.1970), the defendant was convicted of manslaughter as a result of an automobile accident. On appeal the issue was whether the general manslaughter statute was superseded by the state’s subsequently enacted vehicular homicide statute. As now in Florida, the Oklahoma vehicular homicide statute provided a lesser penalty than did the general manslaughter statute. The court of criminal appeals held the vehicular homicide statute supplanted the manslaughter statute in cases where death resulted from negligent operation of a vehicle. Other jurisdictions are generally in agreement. See, e. g., State v. Hagge, 224 N.W.2d 560 (N.D.1974); State v. Collins, 55 Wash.2d 469, 348 P.2d 214 (1960); State v. Biddle, 6 Terry 244, 45 Del. 244, 71 A.2d 273 (Ct. Oyer & Terminer Del.1950).

One factor which may have led to enactment of vehicular homicide statutes was the reluctance of juries to return verdicts of guilt against defendants charged with manslaughter arising out of the operation of a motor vehicle. Legislatures in many states, including Florida, recognized this and enacted specific vehicular homicide statutes with somewhat lesser penalties. Since our legislature has determined a specific category of offense for vehicular homicide, we think this determination must govern and the state should be precluded from exercising prosecutorial discretion to charge a defendant under the general manslaughter statute.

We note in passing that this case is distinguishable from the recent supreme court decision in Fayerweather v. State, 332 So.2d 21 (Fla.1976). There it was held that conduct violative of both the State Credit Card Crime Act (specifically Section 817.60(1)(3), Florida Statutes [1973], dealing with receiving stolen credit cards) and the statute making it unlawful to receive stolen property (Section 811.16) may be punished under the latter statute, notwithstanding that the State Credit Card Crime Act sets a less severe punishment. Unlike the vehicular homicide statute, the State Credit Card Crime Act provides that it “shall not be construed to preclude the applicability of any other provision of the criminal law . unless such provision is inconsistent with [its] terms . . . .” Section 817.68, Florida Statutes (1973).

Affirmed.

HOBSON, A. C. J., and GRIMES, J., concur.

ON PETITION FOR REHEARING

SCHEB, Judge.

On Petition for Rehearing the state argues that our main opinion is incorrect. The state contends that vehicular homicide as proscribed by Section 782.071, Florida Statutes (1975) is a lesser included offense within the crime of manslaughter as defined in Section 782.07. The thrust of the state’s argument is that vehicular homicide requires a lesser standard of proof than does manslaughter. We disagree; however, in view of the significance of our holding, we accept the invitation to amplify our opinion by addressing the state’s contention.

The state’s argument is directed to the concept of lesser included offenses categorically explained in the classic case of Brown v. State, 206 So.2d 377 (Fla.1968). Under Brown, a category 3 offense is a lesser crime necessarily included in the greater crime of which the defendant stands accused, viz., “the burden of proof of the major crime cannot be discharged without proving the lesser crime as an essential link in the chain of evidence.” 206 So.2d at 382. Conversely, the major crime requires the proof of some element or elements in addition to those necessary to prove the lesser crime.

In a prosecution for manslaughter under Section 782.07 the state is required to prove “the killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification.” To sustain a conviction for vehicular homicide under Section 782.071, it is incumbent upon the prosecution to establish the victim was killed as a result of the defendant operating a motor vehicle “in a reckless manner likely to cause the death of, or great bodily harm to, another.” The state suggests that the reckless conduct described in Section 782.-071 can be established by a lesser standard of proof than is required to prove culpable negligence under Section 782.07. Therefore, the state says, the lesser crime of vehicular homicide is but an “essential link in the chain of evidence” necessary to establish the greater crime of manslaughter. The state does not furnish, nor can we find, any support for this argument.

The vehicular homicide statute was originally enacted as Chapter 74-383, Section 16, Laws of Florida. Prior to its enactment, prosecution of those negligently causing the death of another by operation of a motor vehicle was possible only under the manslaughter statute. Therefore, the courts of Florida were called upon on numerous occasions to further define and elaborate on the meaning of “culpable negligence” in the manslaughter statute as related to the operation of a motor vehicle. As far back as 1926, when automobiles were beginning to become common on our streets, the Supreme Court of Florida in Cannon v. State, 91 Fla. 214, 221-22, 107 So. 360, 363 (1926), said that culpable negligence meant negligence “of ‘a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons.’ ” Over the years the courts of this state have continued to define culpable negligence within the context of manslaughter resulting from operation of a motor vehicle as conduct evincing a reckless disregard for human life. See, e. g., Fulton v. State, 108 So.2d 473 (Fla.1959); Miller v. State, 75 So.2d 312 (Fla.1954); Phillips v. State, 289 So.2d 769 (Fla. 2d DCA 1974); McCullers v. State, 206 So.2d 30 (Fla. 4th DCA 1968); Jackson v. State, 100 So.2d 839 (Fla. 1st DCA 1958).

We must presume the legislature had knowledge of these court interpretations when it enacted the vehicular homicide statute in 1974. In so doing, the legislature used language in the new statute which effectively encompasses the judicial definition of culpable negligence in the manslaughter statute. Thus it appears the standard of proof under the manslaughter statute was carried over into the vehicular homicide statute. By its new enactment the legislature apparently intented to punish those negligently causing the death of another by operation of a motor vehicle less severely than those doing so otherwise. Our speculation as to why the legislature decided to do this is included in the main opinion.

Referring once again to Atchley v. State, 473 P.2d 286 (Okl.Cr.App.1970), we find the Oklahoma statutes there involved contain language nearly identical to the Florida statutes in question here. The Oklahoma manslaughter statute speaks of “culpable negligence” and its vehicular statute refers to “reckless disregard of the safety of others,” just as our Florida statutes do. In rejecting the state’s argument that there was a difference in the elements of manslaughter and vehicular homicide, the Oklahoma court said:

[A] thorough examination of the two statutes in question reveal that the crime element established by the latter statute [47 O.S. § 11-903, Reckless disregard for the safety of others] and the elements of manslaughter second degree [O.S. § 716, Culpable Negligence] disclose that the substance of the crime in each case is the operation of an automobile with reckless disregard for the safety of others, thereby causing the death of another. Thus, we find two statutes providing for the punishment of identical acts

473 P.2d at 289. As noted in our main opinion, we find the Oklahoma court’s reasoning highly persuasive in view of the similarity in language of the statutes of both states. See also State v. Biddle, 6 Terry 244, 45 Del. 244, 71 A.2d 273 (Ct. Oyer & Terminer 1950).

Despite the semantic differences between our two Florida statutes, we find no articu-lable difference in the elements of proof required to establish guilt of the crimes therein proscribed. Accordingly, we reject the state’s argument in its Petition for Rehearing. We think that in enacting Section 782.071 the legislature intented to create a separate offense which requires the same standard of proof as is required under Section 782.07, but to impose a lesser penalty on those convicted for vehicular homicide.

We have examined the other contentions by the state in its Petition for Rehearing and find them to be without merit. As herein amplified, we adhere to our main opinion.

Recognizing the significance of our decision, we grant the state’s motion to certify the question involved in this case to the Supreme Court of Florida under Art. V, § 3(b)(3), Fla. Const, as one of great public interest. We conceive the question to be as stated in the first sentence of our main opinion.

HOBSON, A. C. J., and GRIMES, J., concur.


text:
    Gerald RICCIO and Maura Riccio, Appellants, v. ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellee.
    No. 77-462.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Rehearing Denied May 2, 1978.

      Wolf son, Appel & Maram and Anthony J. Brown and Christopher W. Warner, Miami, for appellants.
    Weissenborn, Burr & Hyman, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellants/defendants appeal from a final judgment rendered in favor of appel-lee/plaintiff pursuant to a directed verdict in an action for a declaratory decree. By directing a verdict, the trial judge determined that appellee’s liability for uninsured motorist coverage, under a policy of insurance issued to appellants in April of 1972, was limited to $10,000/$20,000.

Briefly stated, the facts reveal that on August 31, 1972, appellants’ daughter was involved in an automobile accident in which she received fatal injuries. As a result of the accident, a claim arose against the insurance company of the driver of the other vehicle. This third party claim was settled for $10,000.00, the full amount of the available coverage.

Subsequent to the above settlement, a claim was presented against appellee under the uninsured motorist provision of appellants’ policy. This claim was rejected by appellee upon the grounds that, pursuant to the applicable statute in force at the time of the issuance of the policy, Section 627.-727(1), Florida Statutes (effective January 1, 1972), appellants were not automatically entitled to uninsured motorist coverage in an amount equal to their liability limits, which was $100,000/$300,000. Rather, ap-pellee argued, appellants were covered in only the minimum amount allowed by the law ($10,000/$20,000) and, as that minimum amount was satisfied by appellant’s third party claim, no further recovery was possible.

Appellants, on the other hand, contended that in April of 1972, appellant Gerald Ric-cio, the deceased’s father, had requested from appellee’s agent certain changes in his automobile insurance policy. These changes included, inter alia, adding his newly licensed teenage daughter to the policy and extending coverage to the legal limits. Prior to this request, Mr. Riccio’s insurance provided coverage in the following amounts: $100,000/$300,000 liability and $10,000/$20,000 uninsured motorist. Pursuant to former Section 627.727(1), appellants argued that “full coverage,” as requested, meant uninsured motorist coverage in an amount equal to liability coverage.

Upon notification of appellee’s refusal to extend uninsured motorist coverage to $100,000/$300,000, appellants, on June 25, 1975, filed a demand for arbitration. Prior to a hearing on the matter, appellee, in doubt as to its rights and obligations under its issued policy, filed for a declaratory decree. The complaint contained the same basic contention that is set forth above, to-wit: that Section 627.727, Florida Statutes, effective January 1, 1972, did not automatically entitle an insured to uninsured motorist coverage in an amount equal to the limits of liability coverage in the policy. In addition, appellee also alleged that no request to increase uninsured motorist coverage to equal liability limits was ever made by appellant.

Appellants answered the complaint and a trial before a jury was subsequently held. At the conclusion of appellants’ case, pursuant to motion, the trial judge, directed a verdict in appellee’s favor. Final judgment was entered upon the verdict and this appeal follows.

Appellants raise two points on appeal. First, appellants contend that a directed verdict was inappropriate in that viewing the evidence and favorable inference taken therefrom, the jury could have found that Gerald Riccio had requested “full coverage” from appellee’s agent and was, in fact, told that both he and his daughter were so covered, i. e., $100,000/$300,000 liability and uninsured motorist coverage.

Appellants’ second contention challenges the directed verdict insofar as former Section 627.727 requires an insured named in the policy to specifically reject uninsured motorist coverage. Appellants argue that by virtue of the fact that the deceased, as a named insured in the policy, did not reject uninsured motorist coverage, she was thus entitled to the full coverage available under the law — $100,000/$300,000.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the final judgment, predicated upon the directed verdict, must be reversed.

Directed verdicts should not be entered if the evidence is conflicting and permits different, reasonable inferences. Sparks v. Ober, 216 So.2d 483 (Fla. 3d DCA 1968). Upon reviewing a directed verdict, an appellate court is required to consider the testimony adduced in the cause in the light most favorable to the party opposing the motion, disregarding conflicts and indulging every reasonable intendment deducible from the evidence in favor of the non-moving party. Paikin v. Beach Cabs, Inc., 187 So.2d 93 (Fla. 3d DCA 1966). Once done, the question then becomes whether there was any evidence upon which a jury could have lawfully found a verdict for appellants. Martin v. Thompson, 124 So.2d 744 (Fla. 3d DCA 1960).

Based upon the above criteria, the record is replete with testimony concerning the contents of various conversations held between Isaac Dorf, agent for appellee, and appellant Gerald Riccio. In sum and substance, the conversations dealt with appellant’s request to add his daughter to his existing policy of insurance and, at the same time, increase his coverage to the extent that he was “fully covered.” In addition, the record reflects a subsequent query to Dorf’s office concerning an increased premium billing wherein appellant was reassured by employees of Dorf that the increase related to greater coverage.

With the above in mind, there seems little doubt that a jury could have concluded that appellant sought, and was led to believe, that he was “fully covered.” Pursuant to the applicable statute governing the issuance of the policy, which is set forth below, “full coverage” would mean $100,-000/$300,000 uninsured motorist. Section 627.727, Florida Statutes (effective January 1, 1972) reads, in pertinent part, as follows:

“(1) No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in § 324.021(7), and in an amount up to 100 percent of the liability insurance purchased by the named insured for bodily injury, under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage; . .

Appellee, however, contends that, pursuant to the above statute, “full coverage” under the law is any amount of uninsured motorist coverage between the financial responsibility limits ($10,000/$20,000) and the bodily injury liability coverage. Garcia v. Allstate Insurance Company, 327 So.2d 784 (Fla. 3d DCA 1976), cert. den. 345 So.2d 422 (Fla.1977); but see Lumbermen’s Mutual Casualty Company v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978), opinion filed February 14, 1978.

Notwithstanding appellee’s contention, the record reflects that appellee’s own agent, Isaac Dorf, testified that on April 28, 1972, he was writing policies of insurance to automobile owners in the amounts of $100,-000/$300,000 liability and $100,000/$300,000 uninsured motorist. In addition, Dorf testified to the effect that full coverage amounted to the above matched amounts, i. e., $100,000/$300,000 liability and uninsured motorist.

Accordingly, even assuming that, pursuant to Garcia, supra, coverage in the amount of $10,000/$20,000 uninsured motorist was “legal,” a factual question was nevertheless raised by virtue of appellant requesting “full coverage” from appellee and believing that “full coverage,” i. e. $100,000/$300,000 uninsured motorist, was afforded to him and his daughter. 'Such a factual question would not properly be disposed of by a directed verdict.

Having favorably ruled upon appellants’ first point, we need not address ourselves to the second contention. Nevertheless, in the interest of justice, we feel duty bound to offer the following remarks. The record placed before us neither proves nor disproves appellants’ contention concerning the deceased’s failure to reject uninsured motorist coverage, as required by Section 627.727, Florida Statutes; Aetna Casualty & Surety Company v. Green, 327 So.2d 65 (Fla. 1st DCA 1976); Weathers v. Mission Insurance Company, 258 So.2d 277 (Fla. 3d DCA 1972). Assuming that this question is again raised upon remand, the litigants may wish to explore fully an issue that quite possibly would be> dispositive of the controversy.

Accordingly, for the reasons stated above, the final judgment is reversed and remanded for new trial.

Reversed and remanded.

      . The insurance policy issued by appellee provides that “uninsured motorist” coverage in-eludes protection from “underinsured” vehicles.

      . Effective October 1, 1973, Section 627.727 was amended to provide for “uninsured motorist” coverage in amounts “not less than the limits of bodily injury liability insurance purchased by the named insured” unless rejected by the insured.


text:
    Larry Richard DIGMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1368.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Rehearing Denied May 2, 1978.
    Martin S. Saxon, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.

      Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Larry Richard Digman appeals the summary denial of his pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The allegations in Digman’s motion are refuted by the record which we have carefully examined. No reversible error having been demonstrated, therefore, the order of the trial court is affirmed.

Affirmed.