author: RODGERS, Presiding Justice.

text:
    Robert WOOD v. STATE of Mississippi.
    No. 48777.
    Supreme Court of Mississippi.
    Nov. 3, 1975.
    Rehearing Denied Dec. 8, 1975.

      Cunningham & Smith, John A. Ferrell, Booneville, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before RODGERS, PATTERSON, and SUGG, JJ.
   RODGERS, Presiding Justice.

This case came to this Court from the Circuit Court of Lee County, Mississippi. The appellant Robert Wood has appealed from a judgment of conviction and sentence on a charge of having in his possession amphetamine, a controlled drug under the Uniform Controlled Substances Act of 1971.

The state offered testimony to show that an employed informer took a capsule containing amphetamine to the deputy sheriff a few weeks before December 28, 1973, and advised him that the capsule had been supplied to him by the appellant. On December 28, the informer advised the officers that he had seen a number of red and black capsules in a bag that day in appellant’s apartment; whereupon, the deputy sheriff obtained a search warrant from a justice of the peace based upon the information received from the informer who had previously given the officers information that had led to discovery of crime in that county.

The officers went to the appellant’s apartment and waited until he arrived. They then served a copy of . the search warrant upon the defendant Robert Wood. The officers then proceeded to search the apartment. They found certain capsules of drugs in the apartment which appeared to be similar to the capsule previously tested. The drugs were seized, and the appellant arrested. An examination of the drugs by the authorities at the Mississippi State Crime Laboratory established that the capsules contained amphetamine and others contained another drug, methaqualone.

The appellant appealed from his conviction and sentence and now contends that he did not receive a fair trial in the circuit court for the following reasons:

(1) The trial court erroneously permitted the introduction of the search warrant and its supporting affidavit secured for the purpose of searching his apartment, and erroneously permitted the introduction of the articles found in his apartment.

(a) The search warrant was not served on the defendant, appellant here.
(b) The search began as an illegal search by an informer.

(2) The trial court erred in not requiring the state to reveal the identity of the real informer. Moreover, it is said that the trial court should have directed a verdict in favor of the appellant, because the state did not prove the appellant guilty beyond a reasonable doubt.

(3) The state erroneously obtained a “constructive possession” instruction.

We have read the record and the cases cited by the attorneys in their briefs, and we have reached the conclusion that there is no reversible error shown in the record. We, therefore, affirm the judgment of the trial court for the following reasons.

The appellant contends that the search of the appellant’s apartment was an illegal search, and that the contraband found therein was illegally seized, because it is said that the appellant, the occupant of the apartment, was present and was not served with a copy of the search warrant authorizing the search. In support of this contention, the appellant points out that our new law with reference to search warrants issued under the authority of the Uniform Controlled Substances Law of 1971 specifically requires that the officer shall deliver a copy of the warrant to the occupant. The pertinent part of Mississippi Code Annotated Section 41-29-157 (Supp.1974) is in the following language:

“(3) A warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one (1) credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.”

The appellant cites the case of Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947), in which the testimony was to the effect that the officer serving the search warrant testified that he never served the search warrant on the defendant Minnie Adams, although she was present when the search was made. The officer “merely laid it on a table in one of the rooms.” 202 Miss. at 73, 30 So.2d at 595.

In the case now before the Court, the officer testified that he gave the defendant a copy of the search warrant, and, although there is testimony from the defendant that he was not served with a copy of the search warrant and the defendant’s attorney requested a copy of the search warrant from the officer, we think this issue was a question for the trial judge to determine. Unless a trial judge has abused his judicial discretion in allowing a search warrant to be introduced, as shown by the great weight of the testimony, we will not reverse the judgment merely because there is a conflict in the testimony as to whether or not a copy was delivered to the defendant.

The defendant also objected to the introduction of the search warrant because it is said that the search of appellant’s apartment was begun by a paid agent of the officers prior to the issuance of the search warrant. The testimony shows that a paid agent of the officers gave the officers a capsule which proved to be amphetamine and informed them that he had obtained the capsule from Robert Wood, the appellant. The informer later informed the officers that he had seen a number of red and black capsules in the appellant’s apartment on the day the search warrant was issued [December 28, 1973].

The appellant bases this argument upon the testimony of the appellant that he did not let anyone in his apartment on December 28, 1973, and did not know of anyone who had entered the apartment on that date. He argued, therefore, that if anyone entered his apartment he was a trespasser and committed an illegal search of the apartment, and since he was an agent of the officers, the search was illegal and “the fruits” of the search were not admissible in evidence, nor could this illegally-obtained evidence be the basis for the search warrant. This objection is not well taken, because it is based on surmise and conjecture. One does not necessarily have to search an apartment to see what goes on in the apartment. Moreover, if a defendant could avoid the consequences of a search by simply denying the truthfulness of the predicate on which the search warrant was issued, every search would be fatally vulnerable to a simple denial.

A majority of the state courts which have considered the question as to the extent a trial court may permit an attack upon the supporting affidavit for a search warrant have held that in the absence of a statute, that the matter contained in the affidavit on which the search warrant is based may not be disputed by the person against whom a warrant is directed, for the purpose of showing its invalidity. See cases collected under 68 Am.Jur.2d Searches and Seizures § 66, at 720 (1973).

In the case of O’Bean v. State, 184 So.2d 635 (Miss.1966), we held, however, that the affidavit could be attacked where it did not comply with the holding of the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We pointed out in O’Bean that the purpose of the affidavit is to establish probable cause and that the affidavit must contain some of the underlying facts on which probable cause for the search must be shown. O’Bean, then, permits an attack upon the form of the affidavit as to probable cause. It does not, however, permit a collateral attack upon the truthfulness of the facts alleged and passed upon by the issuing official. See Goss v. State, 187 Miss. 188, 192 So. 494 (1939); Goss v. State, 187 Miss. 72, 192 So. 447 (1939); Johnson v. City of Aberdeen, 179 Miss. 526, 176 So. 262 (1937); Sykes v. State, 157 Miss. 600, 128 So. 753 (1930); Mai v. State, 152 Miss. 225, 119 So. 177 (1928); 5 A.L.R.2d 394, at 396 (1949).

It is next argued that the court committed reversible error in failing to require the state to divulge the identity of the person who informed the officers that the defendant had contraband in his apartment. This argument is based upon the State [Miss.Const. § 26] and Federal [U. S.Const, amend. V] Constitution rights of one to be confronted by the witnesses against him. He cites Strode v. State, 231 So.2d 779 (Miss.1970) and Young v. State, 245 So.2d 26 (Miss.1971) as authority for his contention. We think these cases do not help the appellant, because in the instant case, the informant was not an active participant in the commission of the crime, nor was he present when the defendant was apprehended in the commission of the crime charged, nor was the informant a witness against the appellant.

The trial judge gave the following instruction to the jury:

“STATES INSTRUCTION NO. 2
The Court instructs the jury for the State of Mississippi that if you believe from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that the Defendant Robert Wood occupied the premises, and exercised control over the premises in which amphetamine was kept then he may be deemed to be in constructive possession of the amphetamine.”

The appellant Robert Wood contends on appeal that this instruction was an erroneous concept of the law and resulted in a reversible error in this case. His argument is based upon his interpretation of our factual finding in Curry v. State, 249 So.2d 414 (Miss. 1971). In that case, this Court pointed out that the contraband was found at a place near his feet in an automobile owned and driven by the defendant. We said that “The evidence was sufficient to support the jury’s finding that Curry was in possession of the marijuana.” 249 So.2d at 416. We also said:

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

The appellant argues that the above quoted instruction did not inform the jury that the appellant, the owner who was in control of the premises, was conscious that the contraband was in his apartment and that this is one of the requirements of the doctrine of guilt by “constructive possession.”

This Court said in City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785 (1919):

“We do not think it was intended by the act to hold a person guilty of the offense of unlawfully having in his possession liquor, where he did not know or was not conscious of the possession, even if by any stretch of reasoning it can be said that a person is in the possession of an article when he does not know of it. The proof offered by the defendant, denying knowledge of the possession, presented a question of fact for the determination of the jury; and while such defense may furnish an avenue of escape in such cases, this is only true when the jury believes from the evidence the defendant did not have conscious possession of the liquor.” 119 Miss, at 327, 80 So. at 785-86.

In Williamson v. State, 191 Miss. 643, 4 So.2d 220 (1941), the facts showed that the husband, a carpenter, had been away from home at work for three weeks and upon his return he was served with a search warrant. The officers found liquor in an old trunk in his house. He testified that it was not his, that he did not drink, that he did not know anything .about the liquor; and he offered testimony of his good character. Nevertheless, this Court said:

“Although the burden of proof was upon the State, the jury were free to consider whether the prima facie case, made by the discovery of the liquors in a home to which access was procured by appellant’s key and in a locked trunk therein which was not shown to be under the key of another, had been overturned. Their verdict sustained the inferences which such possession authorized, and we are unwilling to displace their judgment by a contrary view.” 191 Miss. at 647, 4 So.2d at 221.

The appellant has cited Quick v. State, 309 So.2d 859 (Miss.1975), as authority for his proposition that the Court should not have granted an instruction on “constructive possession.” In that case, however, we held that the instruction was harmless and pointed out that the instruction there quoted was an abstract statement of law not applied to the facts before the Court.

The fact that contraband found in one’s automobile or apartment does not mean that that fact alone shows that the possessor of the premises or property is guilty of possessing contraband. It does mean, however, that unless there is some explanation or circumstances to the contrary shown in the record, the jury has the right to infer that the possessor of the premises also possesses the articles located in the apartment or automobile, including the contraband. This is especially true where others do not have .access to a locked room or automobile. Such evidence establishes an issue for the determination of the jury, and not for the trial judge. State v. Stern, 64 N.E. 593, 254 N.W. 765 (1934); Harris v. State, 101 Tex.Cr. 533, 276 S.W. 266 (1925); State v. Kempeste, 102 Vt. 152, 147 A. 273 (1929); State v. Arrigoni, 119 Wash. 358, 205 P. 7 (1922); State v. Kichinko, 122 Wash. 251, 210 P. 364 (1922).

The general rule in this state simply stated is this: Where contraband is found on the premises of which the defendant is in possession and control a re-buttable presumption of fact arises that the contraband is within the possession of the owner of the premises. The cases on which this rule is based are legion and may be found listed under Mississippi Digest, Intoxicating Liquor, ®=I224. One of the outstanding cases listed therein is the case of Bolin v. State, 229 Miss. 798, 91 So.2d 847 (1957). See also Christian v. State, 250 Miss. 819, 168 So.2d 532 (1964).

It is true that we have repeatedly pointed out that instructions on presumptions of fact, other than a presumption of innocence, should not be given when all the facts in the case are before the jury. See cases cited in Mansfield v. State, 231 So.2d 774 (Miss.1970); Barnette v. State, 252 Miss. 652, 173 So.2d 904 (1965); and Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963). It is only when all the facts are not before the jury that the court is warranted in granting instructions on presumptions of fact. Dickins v. State, 208 Miss. 69, 43 So.2d 366 (1949); Hughes v. State, 207 Miss. 594, 42 So.2d 805 (1949); Bridges v. State, 197 Miss. 527, 19 So.2d 738 (1944).

In the instant case, however, no explanation or evidence was offered indicating how the contraband came into the appellant’s apartment, nor is there evidence to show that other persons had ready access to the appellant’s locked apartment or the place where the contraband was found. There is evidence, however, to show probable cause to believe that contraband was in the possession of the defendant.

We hold that the state was entitled to an instruction that the defendant was presumed to be in possession of the contraband in accordance with the foregoing rule under the facts here shown, and, although we do not approve the form of the subject instruction, we hold that the giving of this instruction was not a reversible error.

For the reasons above set out, we affirm the judgment of the trial court.

Affirmed.

GILLESPIE, C. J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.

      . This is really not a persumption of law, but, rather, an inference permissibly deducted from the evidence before the court which the jury may accept or reject or accord such value and weight as they may decide. 20 Am.Jur. Evidence § 162, at 165 (1939).

      . Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); Pettus v. State, 200 Miss. 397, 27 So.2d 536 (1946); Bridges v. State, 197 Miss. 527, 19 So.2d 738 (1944); 20 Am.Jur. Evidence § 160, at 164; § 166 at 170 (1939).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hugh WARREN v. Dan EASTERLING.
    No. 49083.
    Supreme Court of Mississippi.
    Oct. 30, 1975.
    E. Howard Eaton, Taylorsville, for appellant.
    John K. Keyes, Collins, for appellee.
   PER CURIAM.

Affirmed.


author: INZER, Justice:

text:
    Dennis RICH v. STATE of Mississippi.
    No. 48670.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Rehearing Denied Dec. 8, 1975.
    Pennington, Walker & Turner, West Point, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   INZER, Justice:

Appellant, Dennis Rich, was indicted, tried and convicted in the Circuit Court of Oktibbeha County for the crime of burglary. He was sentenced to serve a term of six years in the State Penitentiary. From this conviction and sentence he appeals. We affirm.

Dr. J. F. Eckford testified on the morning after August 8, 1973, he discovered that his clinic in Starkville, Mississippi, had been burglarized, and that entry had been effected by the breaking of glass on the rear door. Two participants,- Steve Oaks and Victor Marsh, testified that they and another participant, Bruce Manchester, broke into the clinic and took a quantity of pills while the appellant stood watch outside the rear door of the clinic. Both indicated that the crime had been planned by all four of them earlier that night at the Mississippi State University Union after they had asked appellant if he knew where they could obtain some drugs.

Steve and Victor testified after the burglary the four of them went to Bruce Manchester’s trailer and divided the drugs equally among themselves. This testimony was corroborated by Mrs. Myra Elkins, Bruce’s mother, who was present at the trailer when the four boys arrived and divided the drugs.

Three witnesses testified for the appellant. Appellant’s mother, Mrs. Laura Rich, testified that her son left Starkville during the last part of July and called her collect from Kankakee, Illinois, around August 8 or 9, 1973. She testified that he did not return to Starkville until August 20. Terry Miller, Dennis’ brother, testified he was present when the appellant called from Kankakee, Illinois, on August 8, 1973. Robert Hurley, a resident of Illinois, testified that he saw appellant several times during early August 1973 in his home in Kankakee, Illinois.

Appellant contends that the trial court erred in overruling his motion for directed -verdict at the conclusion of the state’s case, and in failing to direct a judgment of acquittal at the conclusion of the trial. However, the appellant is precluded from raising any question regarding his motion for a directed verdict at the conclusion of the state’s case by introducing evidence in his own behalf. Hankins v. State, 288 So.2d 866 (Miss.1974); Ross v. State, 234 Miss. 309, 106 So.2d 56 (1958).

With regard to the failure of the trial judge to direct a verdict at the conclusion of the defendant’s case, we stated in Roberson v. State, 257 So.2d 505 (Miss.1972):

We have repeatedly pointed out that the trial judge in passing upon a motion for a directed verdict or peremptory instruction must assume that all evidence for the state is true, and must assume that all reasonable inferences that may be drawn from the evidence by the jury of reasonable men, is true, and if from all the testimony, there is enough in the record to support a verdict, the motion for a peremptory instruction should be overruled. Redwine v. State, 149 Miss. 741, 115 So. 889 (1928). (257 So.2d at 507).

Clearly, the evidence introduced by the state presented a prima facie case of burglary, after which the issue of defendant’s guilt was properly presented to the jury.

Appellant next contends that the verdict of the jury was contrary to the overwhelming weight of the evidence and based upon the uncorroborated testimony of accomplices which should be viewed with caution and suspicion particularly in light of appellant’s alleged alibi. However, the testimony of each accomplice supported the other. Furthermore, the testimony with regard to division of the drugs after the burglary was supported by another witness, the mother of one of the other accomplices. We have held numerous times that although testimony of accomplices should be viewed with caution and suspicion, a conviction may rest on the uncorroborated testimony of an accomplice, if such testimony is not unreasonable, improbable or self-contradictory. Moore v. State, 291 So.2d 187 (Miss.1974), and Larry v. State, 211 Miss. 563, 52 So.2d 292 (1951). Merely because the jury refused to believe defendant’s alibi does not warrant a finding that the testimony of the accomplices was unreasonable or that the verdict was contrary to the overwhelming weight of the evidence. Ladnier v. State, 273 So.2d 169 (Miss.1973).

The record in this case reveals that the crime for which the appellant was convicted was committed, and the evidence fully supports the verdict of the jury. Accordingly, for the reasons stated, this case must be and is affirmed.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.


text:
    Elisha BUCKLEY v. STATE of Mississippi.
    No. 48745.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Rehearing Denied Dec. 8, 1975.
    W. Roberts Wilson, Jr., Robert P. Krebs, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


author: BROOM, Justice.

text:
    BIGLANE OPERATING COMPANY et al. v. R. H. BROWN et ux.
    No. 48358.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    Rehearing Denied Dec. 8, 1975.

      Heidelberg, Woodliff & Franks, Luther M. Thompson, A. F. Summer, Atty. Gen., by Martin R. McLendon and P. L. Douglas, Asst. Attys. Gen., Jackson, for appellants.
    Roach & McMillan, John Gordon Roach, Jr., McComb, for appellees.
    Before RODGERS, SUGG and BROOM, JJ.
   BROOM, Justice.

Temporary special field rules allowing an eighty acre spacing pattern for oil wells in the Johnston Station Field in Pike and Lincoln Counties were adopted by the Oil and Gas Board Order No. 147-73 (Docket No. 67-73-161) dated June 28, 1973, upon petition of appellant Biglane. Upon separate concurrent petition of Biglane of same date, the Board by Order No. 148-73 (Docket No. 68-73-161) reformed the drilling unit for the Gall-Brown Well from an original forty acre drilling unit to an eighty acre drilling unit to comply with the temporary special field rules which established the eighty acre spacing. On appeal, the Circuit Court of the First Judicial District, Hinds County, reversed the Board’s Order No. 148-73 which reformed the Gall-Brown Well unit to an eighty acre permit to comply with the temporary special field rules, but the court declined to rule upon whether Order No. 147-73 (which established the eighty acre spacing pattern) was valid. The circuit judge stated in his opinion that the question was moot as to the eighty acre temporary special field rules because the Board’s order establishing such rules expired in March 1974. The circuit judge’s order further provided that his remand to the Board was temporary until March 20, 1975.

We hold that the issue with reference to the special field rules was not mooted and that the circuit court to which the matter had been appealed should have ruled upon that portion of the cause as well as .all justiciable issues properly presented. To hold otherwise would provide a means whereby the judiciary could be effectively deprived of its duty and responsibility to review adjudications or orders of administrative tribunals simply because they are fixed so as to expire before an appeal can be prosecuted to completion.

As indicated in the briefs on file herein, the parties experienced difficulty in deciphering the meaning of the judge’s opinion incorporated by reference into his final judgment which stated that the Board’s Order No. 147-73 “is affirmed as of March 20, 1974,” and then stated: “This does not necessarily mean” that the “court affirms” the Board’s order of June 28, 1973. The quoted language of the opinion of the circuit judge causes the matter to be determined here uncertain and accordingly we remand. Miss.Code Ann. § 11-3-7 (1972); Woods-Tucker Financial Corp. v. Kirkland, d/b/a Carpet Cleaners of Mississippi, 276 So.2d 694 (Miss.1973).

Therefore, this entire cause is remanded to the circuit court which shall decide each justiciable issue presented, including but not limited to:

1. Whether the special field rules (establishing eighty acre spacing pattern in Johnston Station Field) were within the authority of the Oil and Gas Board to make, thereby amending- statewide Rule 7 on spacing;

2. Whether the special field rules created island acreage in violation of statewide Rule 7(b);

3. Whether the evidence revealed by the record which was heard by the Board supported ordering and promulgation of the special field rules.

Therefore, this cause is remanded for further proceedings by the circuit court which shall make more definitive findings and orders consistent with this opinion.

Remanded with directions.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON, and WALKER, J J., concur.


author: OVERTON, Judge.

text:
    Johnny C. BENYARD, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 46506.
    Supreme Court of Florida.
    Oct. 29, 1975.

      Johnny C. Benyard, in pro per.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   OVERTON, Judge.

Petitioning prisoner, by mandamus, seeks recalculation of his release date. We issued our alternative writ of mandamus.

The chronology of the criminal proceedings applicable to the petitioner is as follows :

(1) On February 24, 1967, petitioner was sentenced to a term of six months to ten years for the offense of manslaughter.

(2) On June 9, 1970, petitioner was paroled.

(3) On February 24, 1972, petitioner was sentenced to a term of six months to five years for breaking and entering with intent to commit a felony. The trial court was silent on whether the sentence was to be consecutive or concurrent to the existing manslaughter sentence.

(4) On March 27, 1972, the petitioner’s parole was revoked by reason of the aforementioned breaking and entering conviction. The effective date of said parole revocation was deferred by the Commission’s order until the petitioner completed the sentence for the breaking and entering offense.

Petitioner contends the manner of computation of his sentence violates the principles of Brumit v. Wainwright, 290 So.2d 39 (Fla.1974), and Voulo v. Wainwright, 290 So.2d 58 (Fla.1974). These cases hold that the Commission is prohibited from delaying the effective date of a parole revocation until the completion of the new sentence for the offense causing the revocation. They require that the first sentence imposed must be the first served. The petitioner further contends he is entitled to a recomputation of his release date in a manner that allows both sentences to be served concurrently.

The respondent, on the other hand, contends Brumit should be applied prospectively and not retroactively.

Numerous petitions have been filed with this Court for mandamus or habeas corpus to require a recomputation of a prisoner’s sentence in accordance with the principles of Brumit v. Wainwright and Voulo v. Wainwright, supra. We have previously rendered decisions applying those principles. See Joseph v. State, 301 So.2d 772 (Fla.1974), and Segal v. Wainwright, 304 So.2d 446 (Fla.1974).

It is necessary that we clearly set down principles applicable to computation of sentence concerning (1) the prospective or retroactive application of the rule adopted in Brumit v. Wainwright, supra, and (2) where the sentencing court is silent, whether the sentence is consecutive or concurrent to a previously imposed sentence.

We recognize that retroactive application is not constitutionally required and that this Court has the sole power to determine whether our decision should be prospective or retroactive in application. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). It is our opinion that the formula for computation of a prisoner’s sentence should be the same for all prisoners. Therefore, the principle of Brumit prohibiting a deferred effective date for a parole revocation and requiring the first sentence imposed to be the first served shall be applied retroactively.

In so holding, we emphasize that this determination does not affect sentence computations where there is no prejudicial effect on the release date nor does it affect the legislative grant of authority to the judiciary to impose concurrent or consecutive sentences. The legislature has authorized concurrent and consecutive sentences in accordance with the provisions of Section 921.16, Florida Statutes (1973). The statute reads as follows:

“When sentences to be concurrent and when consecutive. — A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, in-formations, or affidavits, shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively. Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently.”

[Emphasis supplied]

Pursuant to this statute, a sentence for a separate offense not charged in the indictment or information is consecutive to a previously imposed sentence when the sentencing court is silent.

We recognize direct conflict exists between Rule of Criminal Procedure 3.722, adopted February 1, 1973, and Section 921.16, Florida Statutes (1973). Our Rule of Criminal Procedure 3.722 directs that sentences are concurrent unless affirmatively designated as consecutive by the sentencing court. In our opinion, the statute must prevail over our rule because the subject is substantive law.

Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions. Procedural law concerns the means and method to apply and enforce those duties and rights. Procedural rules concerning the judicial branch are the responsibility of this Court, subject to repeal by the legislature in accordance with our constitutional provisions. See In re Clarification of Florida Rides of Practice and Procedure, 281 So.2d 204 (Fla.1973); In re Florida Rules of Criminal Procedure, 272 So.2d 65, amended 272 So.2d 513 (Fla.1973).

The prescribed punishment for a criminal offense is clearly substantive law. State v. Garcia, 229 So.2d 236 (Fla.1969). An argument can be made that the manner of the imposition of the sentence is procedural ; however, it is our opinion that whether a sentence is consecutive or concurrent directly affects the length of time spent in prison and, therefore, rights are involved, not procedure. A judge should affirmatively state whether a sentence is consecutive or concurrent; when he fails to do so, it necessarily follows that the legislature has the primary authority to determine if the sentence should be consecutive or served concurrently with another sentence.

We recognize that it can be contended that Rule 3.722 does not control the situation in the instant case since the second sentence was imposed one year prior to its effective date. We have previously determined in this cause that there should be one formula for the computation of prison sentences, and we have applied Brumit retroactively in order to accomplish that purpose. Leaving Rule 3.722 in force would result in confusion and two alternative means of sentence computation because of the contention that it repealed Section 921.16 effective February 1, 1973. Our Rule of Criminal Procedure 3.722 is not controlling because of its substantive nature and must be revoked or amended to conform with the statute.

In the instant case petitioner contends that the two sentences should be served concurrently. This contention is without merit. From the record before us, the sentences in issue were for offenses not charged in the same indictment or information and the sentencing court did not direct that they be served concurrently. Under these facts, the provisions of Section 921.16, Florida Statutes (1973), require the sentence for breaking and entering to be consecutive to the sentence imposed for manslaughter. Because the second sentence is properly considered consecutive, the failure of the respondent to apply the Brumit rule would appear to have no prejudicial effect on the release date of the petitioner. The mathematical computation should be the' same. We suggest, however, that the respondent review the entire record of this petitioner and recalculate his release date in accordance with the provisions of this opinion to ensure that he has not been denied proper credit for each day spent in jail subsequent to his initial conviction and sentence.

Petition is denied.

It is so ordered.

ADKINS, C. J., and ROBERTS and ENGLAND, JJ., concur.

HATCHETT, J., concurs in the result of opinion.


text:
    Willie Lee SANDERS, Petitioner, v. Louie L. WAINWRIGHT, Director of the Florida Division of Corrections, Respondent.
    No. 46965.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Willie Lee Sanders, in pro per.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petition for mandamus reflected a prima facie Brumit v. Wainwright, 290 So.2d 39 (Fla.1974), violation which triggered the issuance of our writ herein. Respondent’s return concedes the Brumit violation occurring because of the old practice of making parole revocations effective at a future date after completion of an intervening sentence, which Brumit and its progeny no longer allow.

Respondent urges, however, that this inversion of sentences is “harmless” in the present circumstances where a recalculation would not give a different result in the time to be served, nor affect petitioner’s release date. In light of this fact and in accordance with our decision in Benyard v. Wainwright, 322 So.2d 473 (Fla.1975), the writ heretofore issued is

Discharged.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


author: OVERTON, Justice. BOYD, Justice

text:
    Catherine JENKINS, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent.
    No. 46077.
    Supreme Court of Florida.
    July 2, 1975.
    Charles R. Trulock, Jr., of the Law Offices of Howard S. Reiss, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for respondent.
   OVERTON, Justice.

Petitioner filed a petition for writ of ha-beas corpus and we required a return thereto. At present she is imprisoned under two convictions, one for possession of cannabis sativa and one for possession of a hallucinogenic drug. The trial court imposed judgment and consecutive sentences of five years on each count, for a total of ten years.

The post-conviction proceedings reflect a number of procedural errors, all to petitioner’s detriment by counsel initially appointed by the court to represent her. Different counsel now represents petitioner before this Court and was not responsible for the following procedural errors. Following ^ sentencing, petitioner moved to correct the two sentences imposed to a single sentence, which motion was denied. Petitioner appealed, but, on the- advice of the appointed assistant public defender, dismissed that appeal and filed in lieu thereof a motion to correct sentence pursuant to Criminal Procedure Rule 3.850. That motion was also denied by the trial court. Counsel for petitioner failed to file an appeal from this order on petitioner’s behalf but subsequently filed a petition for writ of habeas corpus with the District Court of Appeal, Fourth District, seeking leave to file a delayed appeal from the order denying the aforementioned motion, asserting that the failure to file was an oversight. This petition was filed over three months after the time for an appeal of the aforementioned order had expired. The District Court denied the petition for writ of habeas corpus on April 11, 1974, and no appeal was filed. A petition for writ of habeas corpus was then filed in this Court over four months after the District Court’s final ruling. The issue presented by all the prior motions and petitions filed by this petitioner concerns her sentencing for multiple offenses arising out of the same incident.

We strongly emphasize to the bar of this state that once a petitioner seeks relief in'a particular court by means of a petition for extraordinary writ, here habeas corpus, he has picked his forum. He is not entitled to a second or third opportunity for the same relief by the same writ in a different court. Once he has picked this forum, his remedy from an adverse decision is by the appropriate appellate process and not by another petition for an extraordinary writ. The extraordinary writ procedure is not a substitute for an appeal. This has long been the law. See, e. g., Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967); Sneed v. Mayo, 66 So.2d 865 (Fla.1953); Futch v. Johnson, 101 Fla. 328, 134 So. 791 (1931); State v. Logan, 87 Fla. 348, 100 So. 173 (1924); Dowling v. Lee, 68 Fla. 23, 66 So. 142 (1914); Ex Parte Bowen, 25 Fla. 214, 6 So. 65 (1889).

In the instant case we will consider the petition for writ of habeas corpus solely because there is now a new issue, specifically the lack of proper representation. We will consider the contents of the petition on its merits because of the clear failure of petitioner’s appointed counsel to file a timely appeal, not only from the trial court’s decision but also from the District Court’s decision on the petition for habeas corpus filed therein. Because of this failure, the merits of the issue were never presented on appeal. See Rahming v. Wainwright, 276 So.2d 474 (Fla.1973); State v. Wooden, 246 So.2d 755 (Fla.1971); Hollingshead v. Wainwright, supra. Absent this clear lack of proper representation by counsel, this Court would not have the authority to consider the merits of this petition. We could remand this cause to the District Court for its determination on the merits, but under the circumstances in this case, including an apparent conflict in District Court decisions, we believe we should dispose of this matter.

On the merits, the petitioner argues that the offenses for which she was convicted, possession of cannabis sativa and possession of a hallucinogenic drug as charged under separate counts of the information, are merely different facets of the same transaction. It is petitioner’s position that she should be discharged from custody, or, alternatively, since only a single sentence was authorized, that the case should be remanded for resentencing. To support this contention, she relies on Lietch v. State, 248 So.2d 203 (Fla.App. 4th 1971), cert. den. 253 So.2d 875 (Fla.1971), in which the Fourth District Court of Appeal held that a conviction on three counts of unlawful possession of a central nervous system stimulant and a barbiturate could only result in a single sentence where the possessions occurred at the same time and place. See also Edmond v. State, 280 So.2d 449 (Fla.App. 2d 1973), cert. den. 287 So.2d 690 (Fla.1973); Yost v. State, 243 So.2d 469 (Fla.App. 3d 1971). In addition, we note that previous decisions of this Court have been- cited as adopting the single transaction rule. E. g., Foster v. State, 286 So.2d 549 (Fla.1973); Cone v. State, 285 So.2d 12 (Fla. 1973); Williams v. State, 69 So.2d 766 (Fla.1954).

It is the respondent’s position that the trial court’s action in imposing two consecutive sentences is sustained by Parker v. State, 237 So.2d 253 (Fla.App. 1st 1970), which conflicts with the above-cited decisions of the Fourth and Second District Courts. In that case the defendant, Parker, was charged with (1) possession of marijuana; (2) possession of a barbiturate; and (3) delivering or causing to be delivered a barbiturate, to wit, seconal. The First District Court of Appeal held that these were three separate and distinct violations of law even though all arose from a single criminal transaction or incident.

This Court has previously held in Norwood v. Mayo, 74 So.2d 370 (Fla.1954), that the forging and uttering of a forged instrument are each separate offenses and approved the imposition of consecutive sentences. Further, in Estevez v. State, 313 So.2d 692 (Fla.1975), we held that breaking and entering with intent to commit grand larceny and grand larceny are each separate offenses for which separate sentences may be imposed. We specifically said that these offenses were not “facets of the same transaction” although they arose out of the same incident. We cited for authority our prior decision in Steele v. Mayo, 72 So.2d 386 (Fla.1954).

The United States Supreme Court, in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), approved the charging and sentencing of a defendant for three separate drug offenses arising out of the same incident. The defendant in Gore asserted the theory that the imposition of multiple sentences for multiple drug offenses arising out of the same incident was a violation of the double jeopardy provision of our constitution. The United States Supreme Court rejected that contention.

The facts in the instant case show that the petitioner had possession of two separate drug substances, each of which constitutes in and of itself a separate violation of law. If multiple sentences are proper as set forth in Steele v. Mayo, supra, Norwood v. Mayo, supra, and Estevez v. State, supra, they are proper in this instance, and we so hold. We recede from our decision in Foster v. State, supra, to the extent that it conflicts with this opinion.

We recognize that other states have mandated by statute that multiple or consecutive sentences are not to be imposed for offenses committed as part of a single transaction. E. g., California Penal Code § 654 (West 1970); Illinois Rev.Statute Ch. 38, § 1005-8-4(a) (1973); Minn.Statutes § 609.035 (1974). In the absence of a specific Florida statute, this Court adheres to the view expressed in its prior decisions in Steele v. Mayo, supra; Norwood v. Mayo, supra; and Estevez v. State, supra.

The petition for writ is discharged for the reasons expressed herein.

It is so ordered.

ROBERTS, J., and FERRIS, Circuit Judge, concur.

ADKINS, C. J., concurs in the conclusion and that portion of the opinion directed to the merits of the case.

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

BOYD, Justice

(dissenting).

I dissent. As in Lietch v. State, supra, the record sub judice shows Petitioner’s possession of the drugs occurred at the same time and place, thereby being different facets of the same criminal transaction, regardless of the fact that the State chose to charge Petitioner in separate counts of the information. This Court has held that, when an information contains more than one count but each is a facet or a phase of the same transaction, there can be only one sentence imposed. See Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942); Williams v. State, 69 So.2d 766 (1954); Cone v. State, 285 So.2d 12 (Fla.1973). While it is true that the State is at liberty to prosecute an individual under several different characterizations of essentially the same criminal episode, it is not at liberty to punish him cumulatively for what is essentially the same conduct variously described. See Benson v. State, 301 So.2d 503 (Fla.App.1974). Therefore, while I would affirm the adjudications of guilt, on the authority of Lietch, supra, I would remand the cause to the trial court to vacate the present sentences and to enter a single sentence as authorized by law.

Accordingly, I must dissent to the majority opinion.

McCAIN, J., concurs.


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Charles Edward KIRKLAND and James Robert Luke, Respondents.
    No. 46123.
    Supreme Court of Florida.
    Nov. 5, 1975.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for petitioner, cross-respondent.
    Richard W. Ervin, III, Public Defender, for respondents, cross-petitioners.
   OVERTON, Justice.

This is before us on petition for writ of certiorari to the First District Court of Appeal to review its decision reported at 299 So.2d 54 (Fla.App. 1st 1974). Conflict exists with our decisions in Steele v. Mayo, 72 So.2d 386 (Fla.1954); Estevez v. State, 313 So.2d 692 (Fla.1975); and Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975). We have jurisdiction.

The respondent was convicted of the following offenses arising from the same incident: (1) breaking and entering with intent to commit grand larceny; (2) petit larceny; and (3) possession of burglary tools. The First District concluded that the second and third offenses were but facets of the first, and vacated the sentences for those offenses through the application of the so-called single transaction rule.

We reverse. Our decisions in Steele v. Mayo, supra, Estevez v. State, supra, and Jenkins v. Wainwright, supra, dispose of all issues.

This cause is remanded to the First District Court of Appeal with directions to reinstate the sentences which it vacated.

It is so ordered.

ADKINS, C. J., ROBERTS and ENGLAND, JJ., and SIEGENDORF, Circuit Judge, concur.

      . Art. V, § 3(b) (3), Fla.Const. (1972).


author: CREWS, JOHN J., Circuit Judge.

text:
    Carl Ray SONGER, a/k/a Robert Berry, Appellant, v. STATE of Florida, Appellee.
    No. 45584.
    Supreme Court of Florida.
    Sept. 3, 1975.

      James A. Gardner, Public Defender, and Charles H. Livingston, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   CREWS, JOHN J., Circuit Judge.

This cause comes before this Court on direct appeal from a conviction of murder in the first degree and a sentence of death imposed on Appellant in the Circuit Court of Osceola County. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution. The facts of the cases are as follows.

At approximately 6:00 A.M. on the cold morning of December 23, 1973, hunters looking for dogs observed an automobile with its motor running, parked on a gravel road about fifty yards from U. S. Highway 19 near Crystal River, in Citrus County, Florida. They approached the car, knocked on the window of the passenger side and spoke to one, Ronald Jones, who raised up from a prone position on the front seat. The appellant was lying down on the rear seat with his face toward the front. Although he did not sit up or speak to them, Appellant’s eyes were opened and he appeared to be listening to the conversation about 'dogs going on between one of the hunters, in the presence of the other, with Jones.

Between 8:30 and 9:00 A.M. two other hunters were about thirty feet behind Trooper Ronald G. Smith of the Florida Highway Patrol when he stopped to check the parked vehicle. These hunters saw Smith approach the car, talk with Jones, search Jones at the rear of the auto, and return to the car with his hand, on his pistol. Thereupon Smith leaned into the car. Suddenly, a fusillade of shots occurred after which the officer was dead (death resulted from a loss of blood due to four bullet wounds in deceased’s upper body plus a wound in one knee). The Appellant came out of the back seat of the automobile, shot once toward the hunters, jumped back inside the car and with Jones driving, attempted to make his getaway.

One of the hunters, armed with a 308 semi-automatic rifle, shot certain tires out on the moving automobile causing it to stop. Its occupants attempted to escape by running, but after Jones was shot in the foot by one of the hunters, the Appellant advisedly surrendered, holding his hands with his pistol in one over his head and upon being so ordered, tossed the pistol over the car. The hunters then called for help on the Trooper’s radio.

Appellant testified at trial that, at the time of the shooting, he was under the influence of drugs and that he woke to find a “vision” — an arm that was pulling him, —so he rolled to the floor of the car where he got his single action gun and fired repeatedly at the vision. After the shooting, it was found that Appellant’s gun contained six empty cartridges, while all six cartridges in Trooper Smith’s pistol had also been fired.

At the jury trial which was held for the 23-year-old Appellant, a pathologist testified regarding the location of certain bullet wounds, and later, in his closing argument, the prosecutor referred to certain pathological evidence to convince the jury of Appellant’s guilt. The jury returned a verdict of guilty of premeditated murder with a recommendation that Appellant be executed. The trial court entered its written Findings of Fact in support of the death penalty and sentenced Appellant to be electrocuted. In its Findings of Fact, the court relied on a Presentence Investigation Report (PSI) which showed that Appellant had committed various non-violent crimes (two instances of auto theft and one forged check case) and concluded that there were aggravating, rather than mitigating, circumstances in this fatal shooting.

While Appellant admits that he is guilty to some degree of homicide, he questions the sufficiency of the circumstantial evidence sub judice to support a finding of premeditation. Appellant further concedes that the duration of the premeditation is immaterial so long as the murder results from a premeditated design existing at a definite time to murder a human being; nevertheless, he argues that the evidence shows that he was surprised when suddenly awakened by the trooper and that he was so intoxicated by drugs that he could not form the mental state required to premeditate the shooting. Based on this reasoning, Appellant concludes that the evidence is legally insufficient to support a jury verdict of first degree murder. We disagree. The record shows: that Appellant had absconded from the Oklahoma authorities, and, logically, could have been avoiding arrest; that the trooper leaned over the front seat to wake a supposedly sleeping person; that Appellant was sufficiently alert to accurately shoot the trooper four out of four shots from a single-action pistol which he had to “fan” for rapid fire —while lying on the floor of the back seat of the automobile; that the trooper suffered multiple wounds in such rapid succession that he did not have time to take defensive action until he had been shot at least once; and that there was testimony that contradicted Appellant’s contention that he was under the influence of drugs. This meets with criteria relating to premeditation that was suggested in Larry v. State Recognizing the established principle that, where a jury’s verdict is supported by competent substantial evidence, an appellate court should not substitute itself as the trier of the fact, we accept the jury’s evaluation of the evidence; in doing so, we specifically reject Appellant’s contention that a defendant’s interpretation of circumstantial evidence should be accepted completely unless it is specifically contradicted.

We also reject Appellant’s contention that remarks made by the prosecutor in closing argument constitute reversible error. Certain statements, though incorrectly attributed by the State Attorney to the pathologist, did have a basis in the trial record. Furthermore, Appellant is precluded from asserting this argument since he failed to object at trial to the allegedly improper prosecutorial comment. Moreover, the prosecutor’s possibly inappropriate use of medical terminology, and the conflicts concerning the angles of the wounds and size of neck wound are not such decisive factors that would justify, not to mention, require a finding of fundamental error by this Court.

When the death penalty has been imposed, this Court has a separate responsibility to determine independently whether the imposition of the ultimate penalty is warranted. An examination of the record in this case discloses the following aggravating circumstances as recognized by statute: (1) at the time he killed the patrolman, Appellant was under a three-year sentence of imprisonment for the larceny of an automobile; (2) while serving such sentence, Appellant escaped from the Oklahoma prison system and, at the time of the fatal shooting, was a fugitive from the law; (3) Appellant shot Trooper Smith while he was in uniform, on active duty, and making a routine inspection of an apparently abandoned vehicle, all of which was a lawful exercise of a governmental function. In relating the statutorily enumerated mitigating circumstances to the instant case, even Appellant admits that there are only three which possibly apply, i. e., youth, intoxication and insignificant prior history of criminal activity. We have supplied these standards to Appellant and have found them to be inapplicable: (1) youth: Appellant is 23 years old, and today one is considered an adult responsible for one’s own conduct at the age of 18 years; (2) intoxication: there is sufficient evidence to justify the jury’s finding that Appellant was not s.o intoxicated as to be unaware of what he was doing; and (3) Appellant’s three prior felony convictions which fall between the extremes mentioned in Dixon and which are not so insignificant as to ignore them. Thus, we agree with the trial court that there are no mitigating circumstances sub judice.

As for Appellant’s objection to the trial court’s consideration of the presen-tence investigation report, we find no error in that consideration, which in fact is authorized by Rule 3.710, Rules of Criminal Procedure, that supplements Section 921.-141, Florida Statutes. We observe that Appellant did not object to such consideration and that he received a copy of the PSI and had the opportunity to rebut it prior to sentencing. While it is true that Section 921.141, Florida Statutes, does not provide specifically for the consideration of a PSI report, it is our view that the statute should not be so strictly construed as to prevent the consideration of a document authorized by the Rules to be considered.

In his final point on appeal, Appellant requests this Court to reconsider its decision in Dixon on two grounds, i. e., that the procedure by which he was condemned to death is unconstitutionally discretionary and that the death penalty is per se cruel and unusual punishment and, therefore, unconstitutional. We disagree. In our view, the reasoning in Dixon answers these objections, and we find no cause for receding therefrom.

The Appellant having failed to demonstrate reversible error, his conviction for murder in the first degree and sentence of death are hereby affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS and OVER-TON, JJ., and LEE and McCRARY, Circuit Judges, concur.-

      . Hill v. State, 133 So.2d 68 (Fla.1961); Thompson v. State, 276 So.2d 218 (Fla.App.1973), cert. den., 281 So.2d 210.

      . Snipes v. State, 154 Fla. 262, 17 So.2d 93 (1944).

      . Britts v. State, 158 Fla. 839, 30 So.2d 363 (1947).

      . 104 So.2d 352 (Fla.1958).

      . Harrell v. State, 245 So.2d 302 (Fla.App.1971).

      . State v. Jones, 204 So.2d 515 (Fla.1967).

      . State v. Dixon, 283 So.2d 1 (Fla.1973), cert. den. in consolidated ease (Hunter), 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295.

      . Section 921.141(3), Florida Statutes, now Section 921.141(5), Florida Statutes.

      . Section 921.141(4), Florida Statutes, now Section 921.141(6), Florida Statutes.

      . See Note 7, supra.

      . Cf. Davis v. State, 297 So.2d 289 (Fla.1974).

      . See Note 7, supra.

      . Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 246 (1972).


author: BOYD, Justice. ROBERTS, J.,

text:
    Lloyd SWAN, Appellant, v. STATE of Florida, Appellee.
    No. 45452.
    Supreme Court of Florida.
    Sept. 3, 1975.

      Phillip A. Hubbart, Public Defender, and Roy S. Wood, Jr., Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   BOYD, Justice.

In this cause we are reviewing Appellant’s conviction of murder in the first degree and a sentence of death imposed by the Circuit Court of Dade County, as required both by the Florida Constitution and by statute.

The facts of the case are as follows.

Prior to leaving for Europe the occupants of a Dade County home employed the victim, one Honey Reh, to reside in and maintain the house during their absence. The victim was last seen alive and in her usual physical and mental health by a friend during the evening of May 29, 1973, when a neighbor left her alone in the home for the night. About 9 :30 a. m. the following morning two neighbors found Honey Reh in a semi-conscious condition on the floor of the home, badly bruised and beaten. Her hands, neck and left foot were tied so that any efforts she might have made to free herself could have choked her to death. She was tied with strips of cloth from a bedspread, and her mouth was gagged with a silk stocking. She never full regained consciousness and died in a hospital on June 6, 1973.

Both the testimony of a deputy medical examiner from his autopsy and the testimony of a treating physician, along with hospital records, gave sufficient proof for the jury to find that death resulted from the severe beating administered by Appellant and his co-defendant, who received a life sentence.

The purpose of the crime was robbery or burglary. A television set, money and other items of value were taken from the premises. Because the death occurred in connection with robbery or burglary the prosecution of Appellant was under the felony murder provision of Florida Statutes.

The forty-nine year old female victim was five feet and five inches tall and weighed 171 pounds. Medical and post mortem examinations showed she had previously suffered a heart attack, stroke, arteriosclerosis and, apparently, diabetes. At time of death, a week after her beating, she had a severe thrombosis which decreased blood flow to her brain, gangrene in her right foot, broken vertabrae near her skull, pneumonia, and septic shock.

The defense tried in vain to show death was caused by prior existing physical infirmities and not by the attack made by Appellant and his partner in crime. He tried indirectly to show that if Honey Reh had been in good physical condition she whould not have died from the trauma caused by the beating, binding, and gagging. The jury and court properly ignored this position as defense evidence and argument. Criminals take their victims as they find them. Appellant can not be excused from guilt and punishment because his victim was weak and could not survive the torture he administered. If the jury could have concluded reasonably that the wounds resulting from the beating administered by the Appellant and his co-defendant caused or materially contributed to the victim’s death, it was proper to find Appellant guilty.

Appellant further complains that pictures taken of the victim at the scene of the crime and at the medical examiner’s office after death should not have been admitted as evidence. He argues that they inflamed the passions, feelings and prejudices of the jury. This Court has examined the pictures and, indeed, they show gruesome scenes, especially while the victim was lying on the floor after the attack. This Court has previously held on several occasions, however, that gruesome and gory photographs may and should be admitted if they properly depict the factual conditions relating to the crime and if they are relevant in that they aid the court and jury in finding the truth. Photographs serving only to create passion should be rejected.

Appellant also attacked the constitutionality of Florida’s capital punishment statutes. In State v. Dixon, Chief Justice Adkins wrote a thorough opinion adopted by the majority of this Court holding these statutes valid and constitutional; no purpose is served here in reciting the conclusions reached therein.

All other matters raised have been carefully considered, and we find only one part of the court’s finding and judgment which should be modified.

As provided by statute, after its verdict of guilty the jury was convened to hear evidence of aggravating and mitigating circumstances upon which to base its recommendation for either a life or death sentence. The State offered nothing further to show the necessity for electrocution, and the only evidence offered by the Appellant was that he was nineteen years of age when the crime was committed. Shortly afterwards, although the jury recommended life sentences for Appellant and his co-defendant, who was sixteen years of age at the time of the crime, the trial judge imposed a life sentence on the other defendant but imposed a sentence of death upon the Appellant. The court conducted an independent investigation of other court records, finding that Appellant had entered a guilty plea to resisting arrest with violence on May 8, 1973, for which he was adjudicated guilty and sentenced to two years of imprisonment on June 19, 1973. The murder of Honey Reh was on May 29-30, 1973; therefore, the adjudication of guilt occurred after the murder. The trial judge reported this but stated that he could not consider it as a basis to impose a death sentence. After final discharge of the jury, the court held a hearing to receive testimony from a psychologist about a mental weakness of Appellant and also to examine a psychiatric report from a prior criminal hearing.

The Appellant contends that the Legislature did not intend for such evidence as the above or for presentence investigation reports (P.S.I.) to be considered by the trial judge in determining the sentence to be imposed. These contentions are without merit. Section 921.141(1) provides that in the proceeding to determine the sentence that

“ . . . evidence may be presented as to any matters that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in sub sections (6). and (7). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.” Fla. Stat. § 921.141(1). (Emphasis added)

As can be seen, the statute expressly permits the use of such evidence. Similarly, this Court expressly approved of the use of P.S.I. reports in such instances in Songer v. State, 322 So.2d 481 (Fla. opinion filed September 3, 1975).

P.S.I. reports are provided for in Fla.R.Cr.P. 3.710. Rule 3.710 vests the trial court with the discretionary power to request a P.S.I. report in cases wherein the trial court possesses discretion as to the imposition of sentence. Section 921.141, Florida Statutes, vests the trial court with the limited discretion to impose either the death penalty or life imprisonment even if the jury recommends to the contrary. Thus, the discretionary nature of Section 921.141 brings it within the ambit of Rule 3.710. Section 921.141 did not amend or repeal Rule 3.710, which was adopted by this Court pursuant to its constitutional authority. The Legislature may repeal such rules by a two-thirds vote. Article V, § 2(a), Fla. Const. However, the Legislature’s power to abrogate a court rule extends only to repeal and does not include the power of amendment. In re Clarification of the Florida Rules of Civil Procedure, 281 So.2d 204 (Fla.1973). See Carmel v. Carmel, 282 So.2d 9 (Fla.3d Dist.1973); Lyden v. State, 281 So.2d 591 (Fla.4th Dist. 1973). We must presume that the Legislature enacted Section 921.-141 with deliberation and with the full knowledge of the existence of this Court’s constitutional authority to adopt the rule, and of its (Legislature’s) power to repeal the rule by a two-thirds vote. See Tamiami Trail Tours, Inc. v. Lee, 142 Fla. 68, 194 So. 305 (1940). It must also be presumed that the Legislature would not attempt to repeal such an important rule without expressing the intent to do so. Tamiami Trail Tours, Inc. v. Tampa, 159 Fla. 287, 31 So.2d 468 (1947); Curry v. Lehman, 55 Fla. 847, 47 So. 18 (1908); DeConingh v. City of Daytona Beach, 103 So.2d 233 (Fla.1st Dist. 1958).

In imposing the death sentence sub judice, the trial court found that the aggravating circumstances outweighed those mitigating circumstances and that the crime was outrageously wicked, vile, atrocious, cruel and heinous. While we recognize that the statute leaves the sentencing to the trial court, there is a specific duty imposed on this Court to consider the record in order to assure that the punishment accorded a criminal will meet the standards prescribed in Furman v. Georgia. , Having considered the total record, we are of the opinion that there were insufficient aggravating circumstances to justify the imposition of the death penalty. We think the Court should have followed the jury’s recommendation for punishment.

For the above reasons we affirm the conviction, however we remand this cause to the trial court for reduction of the death sentence to life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

ADKINS, C. J., OVERTON, J., and DuVAL and HARTWELL, Circuit Judges, concur.

ROBERTS, J.,

concurs in part and dissents in part:

“I would affirm the trial court as to Judgment of Guilty and sentence.”

      . Article Y, Section 3(b)(1), Florida Constitution :
      “(b) Jurisdiction. — The supreme court:
      (1) Shall hear appeals from final judgments of trial courts imposing the death penalty . . . ; ”

      . Section 921.141(4), Florida Statutes:

        “Review Of Judgment And Sentence. — The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida within sixty (60) days after certification by the sentencing court of the entire record, unless the time is extended for an additional period not to exceed thirty (30) days by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be • heard in accordance with rules promulgated by the Supreme Court.”

      . Section 782.04(1) (a), Florida Statutes: “782.04 Murder

      “(l)(a) The unlawful killing of a human being . . . when committed by a person engaged in the perpetration of robbery, burglary . . . shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.082.” [i. e., “by life imprisonment and (defendant) ' shall be required to serve no less than twenty-five calendar years before becoming eligible for parole . . . (or) by death.”]

      . Baker v. State, 30 Fla. 41, 11 So. 492 (1892) [overruled in part on other grounds in Tipton v. State, 97 So.2d 277 (Fla.1957)].

      . Brinson v. State, 144 Fla. 228, 198 So. 15 (1940).

      . Brooks v. State, 117 So.2d 482 (Fla.1960); Blake v. State. 156 So.2d 511 (Fla.1963); Dillen v. State, 202 So.2d 904 (Fla.App.1967), oert. dism., 209 So.2d 674; Wasley v. State, 244 So.2d 418 (Fla.1971); State v. Wright, 265 So.2d 361 (Fla.1972); Bauldree v. State, 284 So.2d 196 (Fla.1973).

      . Reddish v. State, 167 So.2d 858 (Fla.1964); Calloway v. State, 189 So.2d 617 (Fla.1966).

      . Sections 775.082, 775.04 and 921.141, Florida Statutes, inter alia.

      . State v. Dixon, 283 So.2d 1 (Fla.1973), cert. den., 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295.

      . Section 921.141(5), Florida Statutes:
      “ (5) Aggravating Cirewmsta/nees. — Aggravating circumstances shall be limited to the following:
      (a) The capital felony was committed by a person under sentence of imprisonment.
      (b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
      (c) The defendant knowingly created a great risk of death to many persons.
      (d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.
      (e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
      (f) The capital felony was committed for pecuniary gain.
      (g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
      (h) The capital felony was especially heinous, atrocious, or cruel.”

      . Section 921.141(6), Florida Statutes:
      “(6) Mitigating Ciroumstamees. — Mitigating circumstances shall be the following:
      (a) The defendant has no significant history of prior criminal activity.
      (b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
      (c) The victim was a participant in the defendant’s conduct or consented to the act.
      (d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
      (e) The defendant acted under extreme duress or under the substantial domination of another person.
      (f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
      (g) The age of the defendant at the time of the crime.”

      . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).


text:
    Calvin MORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-428.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Phillip A. Hubbart, Public Defender, and Jesse J. McCrary, Jr., Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.

      Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant Calvin Morris and one Lloyd Swan were charged by indictment with the crime of first degree murder. Tried together before a jury, they were convicted. Morris was sentenced to imprisonment for life. Swan received a death sentence, and appealed to the Supreme Court, which affirmed the conviction of Swan, but remanded that cause to the trial court for reduction of the sentence to “life imprisonment without eligibility for parole for twenty five years”. Swan v. State, Fla.1975, 322 So.2d 485.

The two contentions of error presented and argued by Morris in his brief, likewise were presented and argued on behalf of the co-defendant in the latter’s appeal to the Supreme Court, and were there considered and held not to constitute grounds for reversal. On consideration thereof we agree with the conclusion reached by the Supreme Court and, on authority of Swan v. State, supra, the judgment and sentence rendered and imposed on the appellant Morris in this case, are affirmed.

Affirmed.


author: ENGLAND, Justice.

text:
    STATE of Florida, Petitioner, v. Stephen Allen LAISER, Respondent.
    No. 46276.
    Supreme Court of Florida.
    Oct. 29, 1975.
    See also Fla., 322 So.2d 493.

      Robert L. Shevin, Atty. Gen., C. Marie Bernard, Asst. Atty. Gen., and John Scaro-la, Asst. State Atty., for petitioner.
    Philip G. Butler, Jr., of Foley, Colton and Butler, West Palm Beach, for respondent.
   ENGLAND, Justice.

By petition for a writ of certiorari, we are asked to review a decision of the Fourth District Court of Appeal, reported at 299 So.2d 39, involving the custodial duties of law enforcement officials with respect to evidence seized under a valid search warrant. Jurisdiction for our review is conferred by Article V, Section 3(b)(3) of the Florida Constitution, in that the district court’s opinion affects all sheriffs of the state in the performance of their duties. Richardson v. State, 246 So.2d 771 (Fla.1971).

Laiser was charged with possession of marijuana in violation of Florida law, and timely moved to suppress incriminating evidence which was seized pursuant to a valid search warrant. Laiser’s motion suggested the invalidity of the warrant, in that it failed to command a return of the property to the issuing court as required by Florida law. The motion was denied by the trial court, but on appeal the district court held that denial of the motion was error. We disagree and hold that the warrant was valid on its face.

The search warrant issued in this case recited in relevant part that the appropriate state officials:

“Are hereby commanded ... in the name of the State of Florida . to enter the said premises hereinbefore specified, to there diligently search for ‘illegal narcotics and/or dangerous drugs’ and if the same, or any part thereof, shall be' found on said premises then you are authorized and commanded to seize and safely keep the same in your possession to be disposed of according to law, and to arrest the said ‘person/s unknown’ or any other person found violating the law in connection with the same, and to bring them before ‘the County 'Court of the 15th Judicial Circuit, Criminal Division’ or before any other Court having jurisdiction of the offense, to be dealt with according to law. . . . ”

Section 933.07, Florida Statutes (1973), states that search warrants shall command the searching officer to bring any seized property before the magistrate or some other court having jurisdiction of the offense. The State argues that the warrant in this case was in substantial compliance with the statute, since it commanded the searching officer “to bring them” (meaning the property seized and the individuals arrested) before the appropriate court. The State further suggests that the warrant’s other directives, taken as a whole, import the requisite statutory commands into the warrant.

The district court below, and Laiser here, state that a search warrant must conform strictly to the statute which authorizes its use, and that the imperative expressed in the statute is of constitutional significance when considered in the light of search and seizure provisions of the Federal and Florida Constitutions. It is relevant to note here that Laiser does not contend that the searching officer in this case failed to bring the seized property within the jurisdiction of the appropriate court. He suggests only that the officer was not required by the language of the warrant itself to bring the seized property to the judicial officer upon whose directive the search warrant was issued.

Recognizing that the erosion of constitutional rights is often effected in subtle ways by minute gradations, we have approached Laiser’s constitutional contentions with the delicacy and concern that our lore of jurisprudence directs. We find, however, that the problem in this case is statutory only, and not of constitutional dignity. The Florida Constitution specifically deals with the procedural aspects of search warrant issuance, in furtherance of the ban on unreasonable searches and seizures. The focus of constitutional concern is specificity and reliable justification for conducting the search.

“[Tjhere is no process known to the law, the execution of which is more distressing to the citizen or that actuates such intense feeling of resentment on account of its humiliating and degrading consequences. As thus enunciated the law is in line with and is no doubt the child of our Anglo-Saxon spirit of liberty which holds every man’s house or dwelling as his castle, and which declares that it must not be invaded or subjected to an uninvited search, except by a duly qualified officer, and then only in pursuance of a valid writ commanding it.”

The enumeration of pre-issuance requisites in Section 12, Article I of our Constitution, and the like demands of the Federal Constitution, clearly indicate that post-seizure protections for that which is seized are not of constitutional stature.

We turn then to the statute which governs the post-seizure conduct of law enforcement officers, to determine whether that legislation requires the same strict interpretation which we have imposed for pre-seizure protections. Obviously the statute was designed to insure that an accused can inspect that which was seized prior to arraignment or trial, that the evidence will not be altered or substituted 'in any way, and that the seized contraband remains within the jurisdiction of the circuit court at all times after its seizure. In light of these purposes for controlling post-seizure conduct, we conclude that substantial compliance is sufficient where no prejudice is shown.

The language of the warrant in this case substantially complied with the requirement of Section 933.07, Florida Statutes (1973). It was couched in terms sufficient to provide the safeguards necessary to insure that there was no prejudice to Laiser. We reject as unworkable and unnecessarily technical any suggestion that the statute requires a warrant to direct the physical return of evidence to the issuing magistrate himself in all cases. Laiser does not assert any prejudice in the handling or disposition of the seized evidence in this case.

The decision of the Fourth District Court of Appeal is quashed, and the trial court’s denial of Laiser’s motion to suppress evidence is affirmed.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

      . The district court relied on State v. Dawson, 276 So.2d 65 (1st DCA Fla.1973) and State v. Schectman, 291 So.2d 259 (4th DCA Fla.1974) both of which involved the return of persons, not property, to an appropriate court. Laiser here also urges reliance on Jackson v. State, 87 Fla. 262, 99 So. 548 (1924), reciting in general that search warrant statutes must be strictly construed.

      . U.S.Const. Amendment IV; Fla.Const. art. I, § 12 (1968).

      . See e. g., Jackson v. State, supra note 1.

      . Jackson v. State, 99 So. at 549 (Fla.1924).

      . The Constitution requires pre-issuance probable cause, supported by affidavit particularly describing the place to be searched, the things or persons to be seized, and the nature of the evidence to be obtained.

      . Cf., Evans v. United States, 242 F.2d 534, 536 (6th Cir.), cert. denied, 353 U.S. 976, 77 S.Ct. 1059, 1 L.Ed.2d 1137 (1957).

      . This same conclusion was reached in Nofs v. State, 295 So.2d 308 (2d DCA Fla.1974). That same court has applied a common sense and practical approach to this statute in Nichols v. State, 231 So.2d 526, 528-29 (2d DCA Fla.1974). See also Joyner v. Lakeland, 90 So.2d 118, 122 (Fla.1956).

      . Seized evidence may be so large or heavy as to be incapable of manual delivery to the magistrate’s custody. Constructive custody has always been adequate in these cases. Size, bulk or weight, of course, do not diminish the magistrate’s responsibility to retain that which is seized within the jurisdiction of the court or to protect the accused’s and the state’s rights to have the integrity of the evidence preserved.

      . We note that the decision below was relied upon and followed in State v. Jones, 307 So.2d 456 (1st DCA Fla.1975). Four days after that decision was entered, the State formally filed a declaration in circuit court that Jones would not be further prosecuted in state court on tiie allegations in the information originally filed against him. Nonetheless, the State requested from us both a writ of certiorari to review the district court’s decision, which we denied on June 26, and a rehearing on our denial. To prevent a seeming conflict between our opinion here and our action in that case, we have granted rehearing there in order to quash the district court’s decision.


text:
    STATE of Florida, Petitioner, v. John Paul JONES, Respondent.
    No. 46972.
    Supreme Court of Florida.
    June 26, 1975.
    On Rehearing Oct. 29, 1975.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for petitioner.
    Michael J. Minerva, Chief Asst. Public Defender, for respondent.
    ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.
   ON REHEARING

ENGLAND, Justice.

On June 26, 1975, we denied certiorari in this case without opinion. On July 1, the State requested that we reconsider our denial in light of the district court’s reliance in this case on State v. Laiser, 299 So.2d 39 (4th DCA Fla.1974). That case had also been brought to us for review, and on May 1 we had granted certiorari and scheduled oral argument for July 3. Simultaneously with the filing of this opinion, we have filed our opinion in State v. Laiser, 322 So.2d 489, reversing and quashing the decision of the Fourth District Court of Appeal. It is essential, therefore, that we reconcile the decisional law of this state by granting the State’s request for rehearing and quashing the decision of the First District Court of Appeal reported at 307 So.2d 456.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

       We note that the state attorney has, by formal filing in the circuit court, noticed his election not to prosecute respondent further under the information originally filed in this case. We do not now pass upon the State’s decision or right to proceed under a new information. Cf., Swanson v. Love, 290 So.2d 112 (2d DCA Fla.1974); Broward v. Roche, 21 Fla. 465, 477 (1885).


author: PER CURIAM. ENGLAND, Justice

text:
    In the Matter of THE FLORIDA BAR-PETITION TO AMEND THE INTEGRATION RULE CONCERNING THE DUES YEAR AND RELATED CHANGES.
    No. 47804.
    Supreme Court of Florida.
    Sept. 24, 1975.
    J. Rex Farrior, Jr., Tampa, Edward J. Atkins, Miami, James E. Cobb, Jacksonville, and Norman A. Faulkner, Tallahassee, for The Florida Bar, petitioner.
   PER CURIAM.

This matter is before us on petition of The Florida Bar to amend Article VIII of the Integration Rule relating to dues, Article IX of the Integration Rule relating to budgets and Article VIII of the By-Laws relating to dues.

The following amendments to the Integration Rule and the By-Laws proposed by The Florida Bar are approved:

Integration Rule, Article VIII, DUES:
1.On January 1, 1976, members of The Florida Bar shall pay six months dues in the amount of $37.50 as dues for the period January 1, 1976, through June 30,1976. On or before January i ef eaeh yeas? July 1, 1976 and on or before July 1 of each year thereafter, every active member of The Florida Bar shall pay annual dues to The Florida Bar in such an amount as shall be set at an annual meeting, and shall also file with the executive director a statement setting forth his business and residential addresses and any other information that may be required by the Board of Governors, provided that at no annual meeting shall the dues be fixed at more than $75.00 per annum.
2. When any member is in arrears in the payment of dues for «te month; 45 days, the executive director shall send written notice by registered or certified mail to such member at his last business address. Within 90 30 days after the posting of the notice, such member may pay his dues in full, together with a delinquency charge of $5r00 $25.00. Upon failure to make these payments within the 90 30 day period he shall become a delinquent member, entitled to none of the privileges of membership in The Florida Bar, and shall not practice law in this state. He may thereafter reinstate this membership upon petition to and approval by the Board of Governors and the payment of all fees and charges owing by him, including a reinstatement fee of $40:00 $50.00.
3. Dues shall not be payable until January Lst the dues payment date next following date of admission to The Florida Bar.
Integration Rule, Article IX, Paragraph 7 with present Paragraphs 7 through 12 to be renumbered accordingly:
7. ALTERNATIVE BUDGETS. When a dues increase is proposed by the Board of Governors subject to approval of the Court and the annual meeting, tentative and proposed budgets under the existing dues structure as well as alternative tentative and proposed budgets which shall apply if the dues increase is approved shall be prepared, considered and noticed as otherwise provided in this rule.
By-Laws, Article VIII, DUES:
SECTION 1. DUES. The annual dues provided for in Article VIII of the Integration Rule as amended shall be paid at the headquarters office on or before January Lst July 1st each year. Such annual dues shall be paid by every person admitted to practice law in Florida, except retired members, former members under disciplinary conviction and sentence, members adjudged insane or mentally incompetent, and members who have resigned pursuant to the provisions of Section 3 of Article II of the Integration Rule as amended. No person failing to make payment of his annual dues in compliance with Article VIII of the Integration Rule as amended shall engage in the practice of law, or be entitled to receive any of the privileges and benefits accorded to active members of The Florida Bar. Failure to receive notice or demand of payment of dues shall not relieve any person of the duty to comply with the requirements of the Integration Rule. The executive director shall issue to each member making payment of his dues an official membership card certifying that such member has paid annual dues for the current year, which membership card shall be evidence that the person named therein is an active member of The Florida Bar in good standing.

The proposal to amend Section 8, Article IX, Integration Rule of The Florida Bar, is approved to read as follows :

8. Amendment of the Budget. The Board of Governors, in their discretion from time to time, may amend the budget in order to provide funds for needed expenditures; provided, however, that the total of increases made in the items of the budget, including new items created by such amendments, shall not exceed five ten per cent of the total income of The Florida Bar for the current fiscal year as anticipated at the time of the amendment. If a proposed amendment shall cause the total of increases in items of the budget made by amendment to exceed such limitation, a hearing upon objections to any item or items therein shall be held by the Board of Governors in like manner as that provided for the proposed budget. The executive director shall publish a notice in The Florida Bar Journal or The Florida Bar News giving notice of a Board of Governors meeting to be held no earlier than the 15th day of the month succeeding the month in which the notice is published. Such notice shall contain the proposed amendment and shall advise that the proposed amendment shall become final unless written objections to any item or items therein shall be filed by members of The Florida Bar with the executive director on or before the tenth day of the month following the month of publication. If the proposed amendment is adopted by the Board of Governors in whole or in part, the amendment of the budget shall be filed with the Supreme Court within the month following the month in which the amendment is adopted.

provided, however, we construe the rule to authorize the variation of line items within the budget but not to increase the total to the extent of any deficit financing.

It is so ordered.

ROBERTS and OVERTON, JJ., SMITH, District Judge and SHOLTS, Circuit Judge, concur.

ENGLAND, J., concurs in part and dissents in part with an opinion, with which ADKINS, C. J., concurs.

ENGLAND, Justice

(concurring in part and dissenting in part).

I concur in the first three Integration Rule and By-Law amendments approved by the Court today, but I do not agree that the Board of Governors requires a 10% latitude for budget amendments. I recognize the need for flexibility in the administration of bar programs, and I acknowledge the existence of inflationary conditions which have exaggerated the normal errors inherent in budgetary planning. Nonetheless, I believe that a 5% latitude for the Board of Governors should be sufficient.

The budgetary process we have established for our integrated bar association preserves the right of Bar members to express their views on the Bar’s annual priorities before a budget is adopted. Amendments which would shift the Bar’s priorities must be resubmitted to all members of the Bar before adoption, except to the extent necessary to provide administrative flexibility for the elected Board of Governors. By raising the degree of flexibility from 5% to 10%, the Board is given more than emergency 1 practical flexibility. In my view, it is given power to substantially alter priorities for the budget year. I do not believe that so broad a power' is essential to the operation of the Board, so long as other mechanisms are available to meet the needs which arise during the course of any fiscal year.

It is suggested that the elected Board of Governors, being dedicated and honorable volunteers, will only amend budget priorities where a compelling need is shown. I do not contest the premise, but the suggestion proves too much. I would rather give the Board full latitude to do that which they deem essential, to the extent of 100% amendment capability, than leave the illusion that Bar members at large have the final word in the budget process beyond a necessary 'minimum (which I define as 5% or less).

The Board of Governors has lived with a 5% limit on their flexibility during the years when the budget was prepared 18 months in advance of the fiscal period for which it was adopted. Budgeting was a guess more than a science during those years. That problem has now been cured by our change in dues cycle from a calendar to a fiscal year. I would prefer to see the Board of Governors operate with a 5% limitation under the new 12-month cycle, at least until it can be shown to be unworkable.

ADKINS, C. J., concurs.

      . Fla.Bar Integr.Rule, art. IX, §§ 2, 3 and 5.

      . Fla.Bar Integr.Rule, art. IX, § 8.


author: MUSZYNSKI, Circuit Judge:

text:
    Pedro JARAMILLO, Appellant, v. CITY OF HOMESTEAD, Appellee.
    No. 45672.
    Supreme Court of Florida.
    Oct. 29, 1975.

      Paul D. MacAulay, Coconut Grove, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   MUSZYNSKI, Circuit Judge:

The appellant by direct appeal pursuant to Article , V, Sec. 3(b)(1), Fla.Const., seeks review of an order of the Municipal Court of the City of Homestead, purportedly holding Fla.Stat. Sec. 843.02 to be constitutional.

The appellant was arrested on charges of assault and battery and resisting arrest without violence which resulted respectively from the appellant’s throwing a bottle at a police officer and his attempt to flee after being informed that he was under arrest. The appellant was purportedly charged for violations of Sections 784.03 and 842.02, Florida Statutes, respectively. The appellant was adjudicated guilty of both charges in a non-jury trial in the municipal court of the City of Homestead and sentenced to thirty days in the municipal jail. The appellant’s motion for new trial was granted, and was once again found guilty of both charges. In its order denying the appellant’s amended motion for new trial which alleged the unconstitutionality of Fla.Stat. Sec. 843.02, the trial court held that:

“The charge of resisting arrest without violence lodged against the defendant and upon which said defendant was found guilty is constitutionally firm and not in violation of Article I, Section 9, of the Florida Constitution and the Fourteenth Amendment to the United States Constitution.”

At the time the appellant sought review by direct appeal, it appeared that this Court could properly assume jurisdiction. Subsequent to oral argument, the appellant filed a supplement to the record on appeal in response to an order of this Court. An examination of this supplemental record clearly reveals that the appellant was not charged under Fla.Stat. Sec. 843.03, but under a municipal ordinance enacted in 1952 which adopted all of the criminal misdemeanor laws of the State of Florida as municipal ordinances. Specifically, the ordinance provides that:

“It shall be unlawful to commit, within the limits of the City, any act which is or shall be recognized by the laws of the State of Florida as a misdemeanor, and the commission of such act is hereby forbidden.” Ord. No. 385, Ch. 2, Sec. 1, City of Homestead (1952).

A municipality may enact an ordinance which creates an offense against municipal law for the same act that constitutes an offense against State law. Orr v. Quigg, 135 Fla. 653, 185 So. 726 (1938); Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894). Similarly, a municipality by ordinance may adopt State misdemeanor statutes by specific reference or by the general reference contained in the above ordinance. Orr, supra.

Such an adoption by general reference as contained in the above ordinance permits subsequent amendments, revisions and repeals of the laws by the state legislature to apply to the municipal ordinances. Hecht v. Shaw, 112 Fla. 762, 151 So. 333 (1933); Williams v. State ex rel. Newberger, 100 Fla. 1567, 125 So. 358 (1930), different results reached on reh. on other grounds. 100 Fla. 1570, 131 So. 864 (1930).

Article V, Sec. 3(b)(1), Fla. Const., permits direct appeals to this Court from trial court orders which initially and directly pass on the validity of a state statute. This provision does not provide for jurisdiction of cases such as the instant cause wherein the appeal is from an order holding a municipal ordinance constitutional even though a state statute has been adopted as an ordinance. Article V, Sec. 5, Fla.Const., provides that the appellate jurisdiction of the circuit courts shall be provided by law. Section 26.012, Florida Statutes, provides that circuit courts shall have appellate jurisdiction of cases arising in county and municipal courts except wherein the appeal “may be taken directly to the supreme court”. Similarly, Section 924.41, Florida Statutes, vests jurisdiction in the circuit courts to hear appeals from criminal judgments of municipal courts. Thus, the circuit court is the proper forum in which this issue should be decided. Wade v. City of Cocoa, 145 So.2d 481 (Fla.1962); Dresner v. City of Tallahassee, 134 So.2d 228 (Fla.1961); Brown v. City of Jacksonville, 236 So.2d 1141 (Fla.App. 1st 1970), rev’d on other grounds, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). See Radford v. Town of Palm Beach Shores, 267 So.2d 36 (Fla.App. 4th 1972). Accordingly, this appeal is transferred sua sponte to the Circuit Court of Dade County.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.