author: PER CURIAM. LEMMON, Justice,

text:
    STATE of Louisiana v. Emerson WALTERS.
    No. 81-KA-2225.
    Supreme Court of Louisiana.
    April 16, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Herman Lawson, Asst. Dist. Attys., for plaintiff-appel-lee.

      Claude R. Sledge of Office Of The Public Defender, Mansfield, for defendant-appellant.
   PER CURIAM.

On April 30, 1981 defendant Emerson Walters was charged by bill of information with attempted forgery, in violation of La. R.S. 14:72 and 14:27. The basis of the charge was an attempt by Walters to acquire funds from the savings account of another by tendering to a bank teller a withdrawal slip upon which he had forged the account holder’s name. At his arraignment on April 30th, 1981, Walters entered a plea of guilty and was subsequently sentenced by the trial court on June 24th, 1981 to serve three years at hard labor. Walters has appealed his sentence, contending that it is excessive in violation of La.Const. Art. 1, § 20 (1974). While reserving judgment upon the merit of Walters’ excessiveness claim, we find that the trial court failed to comply properly with the mandate of C.Cr.P. Art. 894.1. Accordingly, we vacate defendant’s sentence and remand for resen-tencing.

While the record reveals that the trial court took notice of the sentencing considerations of C.Cr.P. Art. 894.1, little appears beyond a brief recitation of statutory language and references to Walters’ juvenile record and his “fairly unstable employment history.” Walters’ pre-sentence investigation report does not reveal the nature or extent of defendant’s juvenile record. Moreover, the trial court found without explanation that no mitigating factors or considerations existed in Walters’ case.

The cursory recitation of statutory language unsupported by a factual basis in the record is no substitute for a reasoned and thoughtful statement by the trial court explaining the imposition of a particular defendant’s sentence. State v. Sepulvado, 367 So.2d 762 (La.1979). Furthermore, in the instant case, the record itself fails to reveal adequate support independent of the trial court’s Art. 894.1 considerations as to “illumine the trial court’s sentencing choice.” State v. Green, 409 So.2d 563 (La.1982); State v. Martin, 400 So.2d 1063 (La.1981); State v. Williams, 397 So.2d 1287 (La.1981).

Because the trial court has failed to provide an adequate record of its sentencing considerations and the factual basis therefor and because the sentence may be excessive as applied to the particular defendant and this particular crime, we vacate the sentence imposed and remand for resen-tencing in accordance with the law.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.

LEMMON, Justice,

concurring.

The trial judge apparently accepted the assertion in the pre-sentence investigation report that defendant had an extensive juvenile record, but the juvenile record is not in the record in this case, and the trial judge did not indicate the nature or extent of the defendant’s juvenile record.


source: Caselaw Access Project

author: BYRNES, Judge.

license: Public Domain

text:
    Mary Helen CLAY Wife of Joseph Clay, Sr., Individually and as Administrator of the Estate of Their Deceased Son Tyrone Domonick Clark v. SOUTHERN SCRAP MATERIAL CO., and its Executive Officers, Stanley Diefenthal, Jim Diefenthal, Ned Diefenthal, Bill Buckner and Illinois Central Gulf Railroad Co.
    No. 12828.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 8, 1982.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Jack C. Benjamin, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for defendants-appellees.
    Before REDMANN, BYRNES and GARRISON, JJ.
   BYRNES, Judge.

Plaintiff’s deceased son, a nineteen (19) year old unmarried male, died approximately five (5) hours after sustaining a crushing injury occasioned while he was working for Southern Scrap Material Company, Ltd., in their Florida Avenue yard. The accident occurred when young Clay was riding atop a gondola car used by Southern Scrap to haul scrap metal. The car was filled with metal and Clay was perched atop the side of the car with his legs dangling inside the car. The car jolted suddenly while coupling with another car and Clay fell into the car. The metal shifted, crushing Clay and he died approximately five (5) hours later. Suit was filed timely by his parents naming Southern Scrap and its officers as defendants as well as Illinois Central Gulf Railroad Company, owner of the car. Motions for summary judgment followed and were granted in favor of all defendants. Plaintiff has appealed all summary judgments except the summary judgment in favor of Illinois Central Gulf Railroad Company which is now final.

We affirm the lower court decision.

In their memorandum in favor of summary judgment appellees rely on Louisiana Revised Statute 23:1032, whereby absent certain exceptions an injured worker’s sole remedy against his employer is workmen’s compensation. Further, supporting this contention is the recent case of Bazley v. Tortorich, 397 So.2d 475 (La.1981) in which the Supreme Court held that Louisiana Revised Statute 23:1032, as amended, prevents an injured employee from seeking recovery in tort for a work related injury even if it is known to have been negligently caused by his employer and/or employee. The only exception to this immunity is if the negligent act or acts were intentional.

Plaintiff maintains that the granting of summary judgment by the trial court was against the weight of law and evidence and that it should not have been granted because there were disputed questions of law and fact. In its latest pronouncement on summary judgment, the Supreme Court, in Thompson v. South Central Bell Telephone Co., 411 So.2d 26 (La.1982) stated:

“Summary judgment under La.C.C.P. arts. 966-969 is based on Federal Rule 56. Although it is an extremely useful device for putting an end to unnecessary litigation, it must be used with caution. ‘Summary Judgment procedure is not a catchpenny contrivance to take unwary litigants into its toils and deprive them of a trial.’ Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940). Rather, it is available only when “the pleadings depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law”. La.C.C.P. Art. 966; Dixie Campers, Inc., v. Vesely Co., 398 So.2d 1087 (La.1981); Chaisson v. Dominque, 372 So.2d 1225 (La.1979). Whenever there remain factual issues in dispute, a court should not grant summary judgment but should set the case for trial”.

A most liberal reading of the record leads this court to conclude that there are no material disputed issues of fact. Numerous uncontroverted affidavits were presented by defendant which alleged among other things that young Clay was riding while seated atop the gondola car with his legs hanging on the inside, in violation of his instructions and company rules, and that young Clay had been warned not to do this on previous occasions. Plaintiff has done nothing to controvert these allegations other than to state that the company could have done more to protect its employees. Defendant maintains that this in itself constitutes an intentional act or omission as per the wording of La.R.S. 23:1032. We find no support for this allegation in the record. We do concede that an employer does have knowledge that no matter how comprehensive his safety programs are, there will always be occasions where an employee will circumvent such programs and place himself in a dangerous position. This knowledge does not require the employer to become an absolute insurer of the employees’ safety, by having a comprehensive safety program to cover all circumstances, no matter how remote, in order for the employer not to become liable in tort under the exception enumerated in Louisiana Revised Statute 23:1032. For these reasons we find no merit in plaintiffs argument that the employer could have done more to protect the deceased.

We therefore affirm the lower courts decision dismissing plaintiffs case and assess all costs of this appeal to plaintiff-appellants.

AFFIRMED.

      . The Statute States:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principle or any officer, director, stockholder, partner or employee of such employer or principle, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principle” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall effect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principle to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1.) any officer, director, stockholder, partner or employee of such employer or principle who is not engaged at the time of the injury in the normal course and scope of his employment: and 2.) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.” [Amended by Acts 1976, No. 147, § 1]


author: ADKINS, Justice.

text:
    COFFMAN REALTY, INC., a Florida corporation, et al., Petitioners, v. TOSOHATCHEE GAME PRESERVE, INC., Respondent.
    No. 59273.
    Supreme Court of Florida.
    Feb. 25, 1982.
    Rehearing Denied April 27, 1982.
    Michael D. Jones of Jones, Morrison & Stalnaker, Altamonte Springs, for petitioners.
    Geo. A. Speer, Jr., of Speer & Speer, Sandord, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Fifth District, Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980), wherein the court disagreed with Hatmaker v. Advance Mortgage Corp., 351 So.2d 728 (Fla. 4th DCA 1977), cert. denied, 362 So.2d 1050 (Fla.1978), insofar as the latter case held it an abuse of discretion for a trial judge to refuse to admit affidavits filed with a motion to rehear the granting of a summary judgment.

We approve the opinion of the district court of appeal in the case sub judice and adopt it as our own.

It is so ordered.

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


author: PER CURIAM. SUNDBERG, Chief Justice,

text:
    McArthur BREEDLOVE, a/k/a McArthur Jenkins, Appellant, v. STATE of Florida, Appellee.
    No. 56811.
    Supreme Court of Florida.
    March 4, 1982.
    Rehearing Denied May 19, 1982.

      Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., Miami, for appellee.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker and Karen M. Gott-lieb, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for appellant.
   PER CURIAM.

McArthur Breedlove appeals his conviction of first-degree murder and sentence of death. We have jurisdiction and affirm the results of his trial.

A five-count indictment charged Breed-love with first-degree murder, attempted first-degree murder, burglary, grand theft, and petit theft. The charges stemmed from the stabbing death of one victim and the wounding of another which occurred during the burglary of their dwelling. The jury acquitted Breedlove of attempted murder, but convicted him of the other charges. Concurring in the jury’s recommendation, the trial court imposed the death sentence for the murder conviction. The court also imposed consecutive sentences of life imprisonment for burglary, five years for grand theft, and sixty days for petit theft.

Breedlove presents six points on appeal: 1) Brady violation; 2) denial of motion to suppress; 3) improper admission of hearsay; 4) improper remarks by prosecutor during closing argument; 5) conviction and sentence for burglary violate double jeopardy clause; and 6) impropriety of death sentence.

In four motions defense counsel requested the production of police reports made by six police officers and detectives and of field investigation cards filed on “suspicious” persons. The trial court denied all four motions without recorded comment. The requested material, along with other unrequested reports, was deposited with the judge who examined it in camera and ordered portions of the material released to defense counsel. All formal statements of persons connected with the case were also furnished to the defense.

On appeal Breedlove claims that the state violated the admonition of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), that

suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment irrespective of the good faith or bad faith of the prosecution.

In making this claim, Breedlove relies on unfurnished portions of a Detective McEl-veen’s report. This report reflects the substance of a conversation that McElveen had with Breedlove’s mother, Mary Gibson, and his brother, Elisha Gibson, to the effect that the mother had not seen several items stolen from the victims’ residence in Breed-love’s possession and that Breedlove had returned home around 2:30 a.m. (the approximate time of the murder) and had left again between 4:00 and 4:30 a.m. This report also states that both the mother and brother referred to blood on Breedlove’s clothes and that the brother described items, later established to have been taken from the victims’ residence, which he saw in Breedlove’s possession on his return home at approximately 2:30 a.m.

Breedlove’s argument on this point, however, ignores, except for one accord reference, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). In Agars, the Supreme Court identified three discovery situations: 1) undisclosed evidence demonstrates the prosecution’s use of perjured testimony; 2) a pretrial request for specific evidence (Brady); and 3) a general request for “Brady material” (Agars). McElveen’s report falls within the third category, and Agars is controlling on this point.

The state provided two lists of witnesses in which the names of sixteen law enforcement persons appear. These include officers, detectives, technicians, and a stenographer.) Although McElveen’s name is on the first list, he was not included in the motions for production which specified the reports of six officers and detectives by name. The record reflects no formal request for all “Brady material,” but we believe that McElveen’s report, as well as those of the other unspecified law enforcement personnel, is within Agurs’ third situation.

Brady's broad holding has been limited somewhat by Agars:

[T]o reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.

427 U.S. at 108, 96 S.Ct. at 2399, 49 L.Ed.2d 342. Furthermore, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Id. at 109-10, 96 S.Ct. at 2400. In response to claims very similar to Breedlove’s, this Court recently stated that “[disclosure requirements for the prosecution principally concern those matters not accessible to the defense in the course of reasonably diligent preparation.” Perry v. State, 395 So.2d 170, 174 (Fla.1980). The record shows that the trial court carefully observed Breedlove’s discovery rights. Breedlove has failed to demonstrate that the material contained in McElveen’s report could not have been found through reasonably diligent preparation or that nonproduction of this report prejudiced him.

Breedlove also claims that the police reports are discoverable per se as “statements.” Florida Rule of Criminal Procedure 3.220 covers statements which are discoverable and defines a “statement” as

a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement. ...

Fla.R.Crim.P. 3.220(a)(1)(h). The courts of this state have generally held that police reports are not “statements,” except of the officers making them, and that generally they are not discoverable per se as statements of those officers. See State v. Johnson, 284 So.2d 198 (Fla.1973); Lockhart v. State, 384 So.2d 289 (Fla. 4th DCA 1980); Black v. State, 383 So.2d 295 (Fla. 1st DCA 1980); Damas v. State, 363 So.2d 568 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979); Pitts v. State, 362 So.2d 147 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1372 (Fla.1979); Miller v. State, 360 So.2d 46 (Fla. 2d DCA 1978); State v. Latimore, 284 So.2d 423 (Fla. 3d DCA 1973), cert. denied, 291 So.2d 7 (Fla.1974); State v. Gillespie, 227 So.2d 550 (Fla. 2d DCA 1969). The material in the instant reports does not comprise “statements” because the reports have not been signed, adopted, or approved by the persons (other than the officers) to whom they have been attributed, they do not appear to be substantially verbatim, and they were not recorded contemporaneously with their making. We do not find that these reports are discoverable as “statements” as set out in rule 3.220.

The motions to suppress filed by Breed-love’s attorneys sought exclusion of any statements by Breedlove, of evidence found at his mother’s home, and of evidence found on his person. On appeal Breedlove only alleges error regarding admission of his statement of November 21, 1978. In that statement Breedlove admitted breaking into a dwelling, taking numerous items, stabbing a man, who had been asleep in a bedroom, with a butcher knife that Breed-love had taken off a table in the living room, and stealing a bicycle to make his getaway. Breedlove alleges that the police violated his fifth amendment rights in obtaining that statement.

Upon learning that Breedlove was in custody, a Detective Nagle of the Hallandale Police Department requested permission to interview him concerning a murder that had occurred in Hallandale several years earlier. Detective Zatrapalek of the North Miami Beach Police Department, lead officer on Breedlove’s case, had Breedlove brought over from the county jail. Robert Shultz, a counselor at the jail, escorted Breedlove downstairs and turned him over to two officers.

At the suppression hearing, Shultz testified that Breedlove had said something like “They had better be the people I want to talk to” or “I don’t want to talk to certain detectives.” He also stated that, on seeing the officers, Breedlove said, “I am not talking to them,” and the officers “said something to the effect that ‘Eventually you will talk to us.’ ” On appeal Breedlove claims that these statements show that he tried to exercise his right to remain silent and that his subsequent statement is invalid because the police did not “scrupulously honor” (Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975)) his refusal to talk to them.

Shultz also testified that it was his duty to report any improper police behavior but that he had not observed any improper behavior regarding Breedlove. Shultz had known Breedlove since his incarceration and testified that he had never noticed signs of Breedlove’s being physically abused and that Breedlove had never complained to him about being abused. Shultz also said that prisoners could refuse to leave their cells in order to avoid being interrogated, but that Breedlove had never done so.

After arriving at the station, Detective Zatrepalek read Breedlove his Miranda rights and Breedlove signed the rights form. Breedlove then asked to speak with his mother and was not questioned during the hour or so before she arrived. He spoke with her in private and then asked her to tell Zatrepalek that he would make a statement. After speaking with the detectives, Breedlove was again read his rights, signed another card, and made a formal statement. Zatrepalek testified that he had never beaten Breedlove and that, when interviewed by Detective Nagle on the following day, Breedlove asked Zatrapalek to stay with him.

Breedlove, on the other hand, testified that Detectives Zatrepalek and Ojeda had beaten him on November 9, that he refused to go with the officers on the 21st, and after being threatened on the 21st he confessed in order to avoid another beating. The judge found that Breedlove understood his rights on both the 9th and 21st of November and that he freely and voluntarily waived those rights.

Breedlove now claims that the statement, “eventually you will talk to us,” was an implied threat constituting coercion and tainting the ensuing statement so that no proper waiver occurred. From the totality of the circumstances, it does not appear that the statement was coerced. Rather, Breedlove chose not to exercise his right to remain silent or to have counsel present, making the damaging statement after talking with his mother. The judge properly concluded that he freely and voluntarily made the statement.

At trial Detectives Ojeda and Zatrepalek testified regarding Breedlove’s statement of the 21st. In relating what he said to them, both recited or alluded to the substance of a conversation they had with Breedlove’s mother and brother. Neither the mother nor the brother testified at trial, and Breed-love now claims improper introduction of hearsay and violation of the confrontation clause.

Hearsay is an out-of-court statement, other than one made by a declarant who testifies at the trial or hearing, offered in court to prove the truth of the matter contained in the statement. Lombardi v. Flaming Fountain, Inc., 327 So.2d 39 (Fla. 2d DCA 1976). Hearsay is inadmissible for three reasons: 1) the declarant does not testify under oath; 2) the trier of fact cannot observe the declarant’s demeanor; and 3) the declarant is not subject to cross-examination. State v. Freber, 366 So.2d 426 (Fla.1978). “The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements.” Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). In Dutton the Court went on to say that “the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936.” 400 U.S. at 89, 91 S.Ct. at 219. On the other hand, “[o]ut-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.” Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). Merely because a statement is not admissible for one purpose does not mean it is inadmissible for another purpose. Hunt v. Seaboard Coast Line Railroad Co., 327 So.2d 193 (Fla.1976); Williams v. State, 338 So.2d 251 (Fla. 3d DCA 1976). The hearsay objection is unavailing when the inquiry is not directed to the truth of the words spoken, but, rather, to whether they were in fact spoken. Id.

In the examination of Detective Ojeda the court sustained defense counsel’s objection to his relating what Breedlove’s mother said at her residence. Ojeda went on to testify that in talking with Breedlove on the 21st he told Breedlove what his brother had said about the bicycle. The court overruled the defense objection to this, stating that “it is not being offered for the truth of what was said." Other comments made by the mother and brother came in the same way; objections were overruled or sustained as needed. A side bar conference on hearsay was held, following which the judge gave the jury a cautionary instruction on Ojeda’s testimony. Prior to cross-examination another side bar conference was held, wherein the defense said it would go into the Gibsons’ statements because they had been received for an impermissible purpose. The court cautioned that defense would have to live with what this approach elicited. A similar course of events occurred during Detective Zatrepalek’s testimony.

In closing argument, defense counsel brought up the Gibsons’ comments and wondered why they had not been called to testify. The state also brought up these comments, referred to their sworn statements (not introduced at trial), said that they told the truth in those statements, and then tied their formal statements to the detectives’ testimony.

Defense counsel used these statements by the prosecutor to move for a mistrial because of “putting the truth of Elijah and Mary Gibson’s statements in issue,” and also asked that the jury be told to disregard the detectives’ testimony regarding what the Gibsons had said or else be given another cautionary instruction. Defense counsel also asked that the jury be told to disregard the state’s closing argument. The court found the state’s argument proper and refused to reinstruct, referring to his earlier cautionary instruction. Defense again referred to the mother and brother in its final argument.

The court properly admitted the detectives’ testimony about what the Gibsons said because it came in to show the effect on Breedlove rather than for the truth of those comments. The informal statements, therefore, were not hearsay and could be admitted into evidence. The judge cautioned the jury on how to use this testimony.

In their last motion for a new trial defense counsel cited the prosecutor’s argument, alleging prejudicial error. The court denied the motion. A mistrial should be declared for prejudicial error which will vitiate the trial’s result. Perry v. State, 146 Fla. 187, 200 So. 525 (1941). If the alleged error does no substantial harm and causes no material prejudice, a mistrial should not be declared. Id. Improper remarks can be cured by ordering the jury to ignore them unless they are so objectionable that such instruction would be unavailing.

The judge refused to renew his cautionary instruction regarding the use of testimony referring to the Gibsons’ statements and included no such instruction in those given before the jury retired to deliberate. The questions, therefore, are whether the prosecutor’s comments transformed the nonhearsay material into hearsay and whether those comments were so prejudicial that this Court cannot say beyond a reasonable doubt that they had no effect on the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

It appears that the prosecutor’s remarks were improper. These remarks, however, were no worse than, and possibly not as harmful as, defense counsel’s remarks concerning the Gibsons’ statements. On rebuttal defense counsel mentioned the stolen bicycle being found at the Gibson home. He went on to say that the bicycle

could have been ridden by the other four adults in that house, and what about those people? What did they do? They pointed the finger at my client.
Sure it is his mother and brother. I do not like mothers and brothers testifying like that against my client. They said, “He did it. He is the one.”
Mr. Godwin would have you believe we can call people like that.

(Emphasis added.) It appears that defense counsel admitted that those statements were true. Considering the totality of the circumstances, we find the prosecutor’s statements not so prejudicial as to require a new trial.

On appeal Breedlove alleges that the prosecutor made improper arguments to the jury, thereby violating Breedlove’s right to a fair trial. Besides use of the Gibsons’ statements, he points to three other prejudicial or inflammatory remarks: 1) allegations of other criminal acts (rape); 2) “vituperative” characterization (referring to Breedlove as an animal); 3) appeal to community prejudice (violence in Dade County).

Wide latitude is permitted in arguing to a jury. Thomas v. State, 326 So.2d 413 (Fla.1975); Spencer v. State, 133 So.2d 729 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962), cert. denied, 372 U.S. 904, 83 S.Ct. 742, 9 L.Ed.2d 730 (1963). Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments. Spencer. The control of comments is within the trial court’s discretion, and an appellate court will not interfere unless an abuse of such discretion is shown. Thomas; Paramore v. State, 229 So.2d 855 (Fla.1969), modified, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972). A new trial should be granted when it is “reasonably evident that the remarks might have influenced the jury to reach a more severe verdict of guilt than it would have otherwise done.” Darden v. State, 329 So.2d 287, 289 (Fla.1976), cert. denied, 430 U.S. 704, 97 S.Ct. 308, 50 L.Ed.2d 282 (1977). Each case must be considered on its own merits, however, and within the circumstances surrounding the complained-of remarks. Id. Compare Paramore with Wilson v. State, 294 So.2d 327 (Fla.1974).

The judge refused to grant a mistrial, finding the state’s argument not prejudicial due to the context in which the objeeted-to remarks were made. Some of the remarks may have been improper, but we do not find them so prejudicial that a new trial is required.

Breedlove was convicted of both first-degree murder and burglary and received the death penalty for the former and a consecutive life sentence for the latter. On appeal he claims that Pinder v. State, 375 So.2d 836 (Fla.1979), mandates that the burglary conviction and sentence be vacated because the state proved only felony murder, not premeditated murder. The state, on the other hand, claims that it presented sufficient evidence of premeditation to warrant both convictions and sentences and also that Pinder should be rejected because of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Breedlove’s Pinder claim and the state’s Whalen argument have been disposed of in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We find, however, that Breedlove’s contention is not really an issue in this case because the state introduced sufficient evidence of premeditation. See Hegstrom. Because we find that the jury need not have convicted Breedlove of burglary in order to support the murder conviction, we affirm the convictions and sentences for both first-degree murder and burglary.

As his final point, Breedlove makes several attacks on the death sentence: simple felony murder as a basis for the death penalty violates the eighth and fourteenth amendments; improper aggravating circumstances; limited consideration of mitigating circumstances; and death penalty disproportionate in this ease.

Breedlove claims that death is an excessive punishment for a simple felony murder, based on Justice White’s concurring opinion in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Both the United States Supreme Court and this Court have found that the death penalty is not per se violative of either the federal or state constitution. Breedlove has presented nothing which would compel a different conclusion.

Breedlove states that “this Court has uniformly reversed death sentences in pure felony-murder cases, absent such a finding of an intent to kill” and cites numerous cases in support of this contention. While most of these cases deal with felony murder, all but one concern jury overrides. They are not applicable to the instant case and do not support the point that Breedlove tries to make.

The court found three circumstances in aggravation: previous conviction of violent felony; homicide committed during a burglary; and heinous, atrocious, and cruel. Breedlove argues that an underlying felony cannot be used in aggravation, but presents nothing which compels declaring the felony-murder aggravating circumstance unconstitutional. The trial court properly found the murder to be heinous, atrocious, and cruel. Although death resulted from a single stab wound, there was testimony that the victim suffered considerable pain and did not die immediately. While pain and suffering alone might not make this murder heinous, atrocious, and cruel, the attack occurred while the victim lay asleep in his bed. This is far different from the norm of capital felonies and sets this crime apart from murder committed in, for example, a street, a store, or other public place.

Breedlove also claims that the prosecutor improperly argued three nonstatuto-ry aggravating factors to the jury: that the jury would make a recommendation only (“passing the buck”); that Breedlove would be eligible for parole; and that Breedlove showed no remorse. While these remarks may have stretched the bounds of proper argument, Breedlove does not appear to have been prejudiced because the court did not find them in aggravation. Cf. Menendez v. State, 368 So.2d 1281 (Fla.1979) (improper aggravating circumstances found); Riley v. State, 366 So.2d 19 (Fla.1978) (same).

Breedlove also complains that the court limited the range of mitigating circumstances allowed to be considered and that the instructions gave inadequate guidance for consideration and weighing of these circumstances. The instructions, however, were proper and adequate, and the court did not limit presentation of mitigating evidence. Breedlove now claims that the court erred in failing to find the lack of intent to cause death and impaired mental capacity. Finding felony murder in aggravation was proper, and, after acknowledging the conflicting testimony regarding Breedlove’s mental capacity, the court chose to find his capacity not impaired or diminished. In the sentencing order the court stated:

[T]his Court, after weighing and considering the aggravating and mitigating circumstances, is of the opinion that no mitigating circumstances, either statutory, or by any testimony, facts or circumstances presented at the advisory proceeding, exist which outweigh the aggravating circumstances.

In the light of properly found aggravating circumstances, with nothing found in mitigation, imposition of the death penalty was proper.

We therefore affirm Breedlove’s convictions and sentences.

It is so ordered.

ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, Chief Justice,

dissents:

“Because I believe that the truth of the statements attributed to Elijah and Mary Gibson were put in issue by the prosecution such testimony by the state’s witnesses constituted prejudicial hearsay. Hence, I am compelled to reverse the conviction and remand for a new trial.”

      . Art. V, § 3(b)(1), Fla.Const.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      .After his in camera inspection, the trial judge sealed the police reports. Breedlove’s appellate counsel had access to the sealed reports after trial to assist in preparing this appeal. Only McElveen’s report is specifically referred to on appeal, and inspection of the reports reveals McElveen’s report to be the only one containing possibly favorable information which the defense might not have received in some fashion.

      . Gillespie contains an analysis of what is and is not Brady material.

      . Appellant’s brief states that Breedlove’s public defenders had visited him in jail prior to the 21st and that he had agreed not to speak to police without counsel present.

      . Breedlove’s original public defender, David Finger, testified that, although Breedlove told him prior to the 21st that he had been beaten, Finger saw no evidence of physical abuse, never reported Breedlove’s statements regarding the beating and later coercion on the 21st, and never investigated Breedlove’s claims.

      . We note that ch. 81-93, Laws of Fla., slightly modified the definition of hearsay as set out in § 90.801(l)(c), Fla.Stat. (1981).

      . In denying the motion for new trial the judge responded to defense’s objection to the state’s entire argument by saying: “I think the context in which the argument was made was not prejudicial in nature.”

      . Breedlove charges that the state implied that Breedlove wanted to rape the woman in the house he was burglarizing. In going through what had happened, the prosecutor said that because of the purse Breedlove knew that a woman lived there. This is a permissible inference. His next comment, however, is not supported by the evidence: “He went prowling through the house to find that woman.” Although Breedlove was a convicted mentally disordered sex offender (California), evidence concerning his past record and tendencies was not presented to the jury until the sentencing phase.

      . The prosecutor characterized the killing as a “savage and brutal and vicious and animalistic attack;” he did not refer to Breedlove as an “animal.”

      . The prosecutor said: “When we walk the streets we take our chances.” In response to an objection the court said: “Stay on the evidence in this case.” The prosecutor then said: “One place in the world where we ought to be free from this kind of violence, this kind of crime, is in our own home.” The court overruled an objection to this remark. These comments appear to reflect common knowledge and are probably the sentiments of a large number of people. They do not appear to be out of place.

      . This evidence includes, among other things, Breedlove’s arming himself with a butcher knife before entering the bedrooms and the defensive wounds suffered by both victims.

      . Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

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

      . Menendez v. State, 368 So.2d 1278 (Fla.1979), was remanded for resentencing because of improper consideration of aggravating circumstances.

      . No mitigating circumstances found.

      . Defense’s presentation consisted of witnesses who testified about Breedlove’s mental and emotional problems.


author: OVERTON, Justice. ADKINS, Justice,

text:
    James A. GARDNER, Appellant, v. The BRADENTON HERALD, INC., Appellee. John DOE, Appellant, v. The BRADENTON HERALD, INC., Appellee.
    Nos. 58761, 58735.
    Supreme Court of Florida.
    March 4, 1982.
    Rehearing Denied April 28, 1982.
    Jim Smith, Atty. Gen. and James A. Pur-dy, Asst. Atty. Gen., Tampa, for James A. Gardner.
    Edwin T. Mulock and Robert A. Farrance of Mulock & Farrance, Bradenton, for John Doe, Appellants.
    Larry K. Coleman of Knowles, Blalock, Coleman & Landers, Bradenton, for appel-lee.
   OVERTON, Justice.

This is an appeal from a trial court judgment holding section 934.091, Florida Statutes (1977), unconstitutional because it violates the freedom of the press provisions of the United States Constitution. The subject statutory section makes it a third-degree felony for any person to publish or broadcast in a newspaper, publication, or electronic medium the name of any person who is a party to an interception of wire or oral communications until that person has been indicted or informed against. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. (1972). We affirm.

This cause commenced when the Braden-ton Herald, a newspaper of general circulation, sought a declaratory judgment against State Attorney James Gardner as to the constitutional application of section 934.091. The Herald possessed and wished to publish the names of persons who were the subjects of a wire intercept, among them that of intervenor John Doe. The trial court granted the requested relief, finding the statutory prohibition “obviously unconstitutional, in part, on the basis of its vagueness and uncertainty.” The trial court further found the statute was an unconstitutional restriction on the freedom of the press.

The sole and limited issue for our determination concerns the authority of the state to direct without exception or procedural safeguards the criminal punishment of any person who truthfully publishes without malice the name of an unindicted subject of interceptions or wiretaps.

Section 934.091, Florida Statutes (1977), reads as follows:

(1) No person shall print, publish, or broadcast, or cause to be printed, published, or broadcasted, in any newspaper, magazine, periodical, or other publication, or from any television or radio broadcasting station, the name or identity of any person served with, or to be served with, an inventory or notification of interception of wire or oral communications pursuant to s. 934.09(7)(e) until said person has been indicted or informed against by the appropriate prosecuting authority.
(2) Whoever is convicted of the violation of the provisions of this section is guilty of a felony of the third degree, punishable as provided in s. 775.082 by a fine not to exceed $10,000, or as provided in s. 775.084.

In our opinion the statute, in its present format, is an unconstitutional restraint upon the freedom of the press guaranteed by the first and fourteenth amendments to the United States Constitution. The absolute terms of this statute effectively result in a prior restraint on the press. Prior restraints have always been accorded the most exacting judicial scrutiny. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). The United States Supreme Court has made it clear that the method of imposing restrictions on the press is not the critical factor:

Whether we view the statute as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive because even the latter action requires the highest form of state interest to sustain its validity.

Smith v. Daily Mail Publishing Co., 443 U.S. 97, 101-02, 99 S.Ct. 2667, 2669-70, 61 L.Ed.2d 399 (1979). The Supreme Court has recently defined the relevant constitutional standards in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), and then commented in Daily Mail that “state action to punish the publication of truthful information seldom can satisfy” such standards. 443 U.S. at 101-2, 99 S.Ct. at 2669-70.

In Landmark a newspaper was fined under a statute for truthfully publishing the identity of a judge under investigation by the Virginia Judicial Inquiry and Review Commission. The Court posed the issue as follows:

It can be assumed for purposes of decision that confidentiality of Commission proceedings serves legitimate state interests. The question, however, is whether these interests are sufficient to justify the encroachment on First Amendment guarantees which the imposition of criminal sanctions entails ....

435 U.S. at 841,98 S.Ct. at 1544. The Court concluded that the publication Virginia sought to punish lay “near the core of the First Amendment ...,” and reiterated the conclusion in Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966), that “a major purpose of that Amendment was to protect the free discussion of governmental affairs.” 435 U.S. at 838, 98 S.Ct. at 1541.

The Landmark issue is almost identical to that in the instant case. As in Landmark, the instant statute asserts through the means of criminal sanctions that the total confidentiality of a governmental activity is a legitimate state interest that must be preserved even at the cost of restraint upon the press. Also as in Landmark, the state in the instant case generally asserted that absent criminal sanctions the objectives of the statutory scheme would be seriously undermined. While not dispositive, we note that although most of chapter 934 tracks the federal wiretap law contained in 18 U.S.C. §§ 2510-2520 (1976), there is no provision in the federal statute which corresponds to section 934.091.

Clearly, there is no meaningful way under the statute to balance the asserted overriding governmental interest allegedly inherent in the confidentiality sought here with the restraint on the first amendment rights of the appellee newspaper. The statute as written is thus clearly unconstitutional.

We do not minimize the asserted state interests which could be affected by the contemplated publication. We believe it is important to recognize that we are not faced in this cause with a narrowly drawn statute closely tailored to interests such as protecting the national security, protecting the safety of undercover officers, preserving an ongoing investigation, protecting the life of a kidnap victim, or ensuring a fair trial. Nor are we faced with a statute incorporating adequate procedural safeguards such as a prior hearing before a court of competent jurisdiction, which would allow a balancing of interests. Finally, we emphasize that this case does not involve any question of access of the press to the identities of persons whose communications have been intercepted under chapter 934.

We also do not have before us, nor do we reach, any question concerning the possible private cause of action that John Doe or similarly situated persons might have for libel or invasion of privacy against any news medium. We decline appellant Gardner’s invitation at oral argument to retroactively apply our newly approved constitutional right of privacy to sustain the constitutionality of section 934.091. The state in the person of the state attorney has no standing in this proceeding to assert the privacy rights of those persons it has wiretapped.

The judgment below is affirmed.

It is so ordered.

SUNDBERG, C. J., and BOYD, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

The Bradenton Herald, Inc., hereinafter referred to as the Herald, filed an action seeking a declaratory judgment as to the constitutional application of section 934.091, Florida Statutes (1977), by James A. Gardner as state attorney. The Herald alleged that it had the name and identity of persons neither indicted nor informed against by Gardner, which persons had not been served with an inventory or notification of interception of wire or oral communications pursuant to section 934.09(7), Florida Statutes (1977). The Herald alleged that it intended to publish the names of these individuals, which publication is prohibited by the provisions of section 934.091, Florida Statutes. The plaintiff alleged that the statute was unconstitutional on its face, was overbroad, was an unreasonable restraint on the freedom of press and publication enjoyed by the Herald; and had a chilling effect on the publication by the Herald.

John Doe was allowed to intervene when he filed his petition alleging that the publication of the identity of persons who have had their telephones tapped, and persons who have been intercepted on tapped telephones, would be a violation of their right of privacy protected by the United States Constitution and the Florida Constitution, and that this right is paramount to any claim of freedom of press and publication. Doe alleged that he was one of the “unnamed persons” referred to in the Herald’s complaint who has neither been indicted nor informed against and had not been served with an inventory or notification of interception of wire or oral communication.

The question of the right of privacy of John Doe is at issue because of the implication of a published article involving a large-scale drug investigation which specifically names John Doe as being interested, thus placing that individual in an improper, unlawful, or fraudulent light.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court pointed out that the protection of a person’s general right to privacy is, like the protection of his property and of his very life, left largely to the law of the individual states, but that various provisions of the federal constitution protect personal privacy from governmental invasion. The law of Florida recognizes this right to privacy in section 934.01, Florida Statutes (1977), which reads as follows:

Legislative findings. — On the basis of its own investigations and of published studies, the legislature makes the following findings:
* * * * * *
(2)In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of intrastate commerce, it is necessary for the legislature to define the circumstances and conditions under which the interception of wire and oral communications may be authorized and to prohibit any unauthorized interception of such communications and the use of the contents thereof in evidence in courts and administrative proceedings.
(3) Organized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice.
(4) To safeguard the privacy of innocent persons, the interception of wire or oral communications when none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurance that the interception is justified and that the information obtained thereby will not be misused.

Chapter 934 presents a comprehensive plan for the use of wire and oral communications. It provides protection to the individual from unreasonable seizure of such communications as well as the right of state police agencies to intercept and use such communications in criminal investigations and as evidence when based upon probable cause. A fine balance has been struck between the rights of individuals and the interest of law enforcement.

Before a wiretap order can be issued, it must be shown that the law enforcement agency has reasonably exhausted other investigative techniques, or that other available techniques are unlikely to succeed or are too dangerous. As such, a wiretap is virtually a last resort device, the success of which depends exclusively upon the fact that the parties being intercepted have absolutely no knowledge of the wiretap.

There can be no doubt that the protection of an ongoing criminal investigation is the compelling governmental interest of the highest order, which is rendered useless when a subject reads in a newspaper or sees a report on television that his phone is presently being wiretapped in connection with a criminal investigation. The injury does not stop there. Whenever a wiretap order is issued, there has to be probable cause to believe communications concerning an offense will be intercepted. This presupposes that more than one individual is involved in the crime. Therefore, if but one person’s name is published, an entire investigation into the criminal activities of numerous individuals is destroyed. This is particularly true in investigations concerning narcotic or other dangerous drugs, gambling, dealing in stolen property, Florida anti-fencing act violations, and criminal conspiracies to commit such acts. Such a disclosure can also endanger the life of an individual, as in kidnapping cases.

The exhaustive showing which is required to be made prior to its approval assures that a wiretap is necessary, that other investigative techniques have failed or will fail, and that absolute secrecy is a necessity. Having succeeded in meeting such a burden in initially procuring a wiretap order, it should not be necessary to go through a repetitious procedural hearing which would fail to prove anything that has not already been shown. Procedural rules in section 934.091 would be a mere charade, accomplishing nothing and complicating much.

The nature of a wiretap, i.e. that it cannot be successful unless it is secret, and the heavy burden met in justifying the same, combine to obviate the need for procedural safeguards in this statute. That the government succeeded in having the instant wiretap approved demonstrates, without more, that the names involved should not be published prior to completion of the operation. A statute recognizing such is not unconstitutional.

There are, therefore, two compelling state interests involved: the first is the protection of the integrity of an ongoing criminal investigation; the second is the right to privacy of the individual who is the subject of the wiretap, as well as the innocent individuals who happen to make a telephone call to the phone which is being wiretapped. The limited infringement caused by this statute upon the Herald’s right to print the name of a wiretap subject is neither unreasonable nor unconstitutional. The destructive impact of such a disclosure could have on an ongoing criminal investigation is enormous.

The determination of issues pitting the first amendment rights against privacy rights demands a delicate balancing because in the sphere of collision between claims of privacy and those of free speech, the interests of both sides are plainly rooted in the traditions and significant concerns of the American society. In accordance with the principles announced in Katz v. United States, the legislature of Florida by section 934.01, Florida Statutes (1977), safeguarded the privacy of innocent persons during the interception of wire or oral communications. Section 934.091 only abridges publication of the name or identity of the person served with or to be served with an inventory or notification of interception until that person has been indicted or informed against. In other words, only for that crucial period of time during a criminal investigation when the subject does not know he has been wiretapped is the press in any way abridged. At the point where the secrecy of the investigation is no longer imperative, the statute allows publication.

The use of wire interceptions is a necessary tool in fighting organized crime. The state interests and this statute are of the highest form and, when balanced against the very limited intrusion into the first amendment, the results indicate that the statute passes constitutional muster.

The majority declines to retroactively apply our newly approved constitutional right of privacy amendment to sustain the constitutionality of section 934.091, Florida Statutes (1977). The publication has not yet been made, so John Doe should have the right to invoke his constitutional privilege of privacy when the publication is eventually made after the majority opinion is filed. Only then will his privacy rights be invaded. If section 934.01, Florida Statutes (1977), quoted above, was not sufficient to tip the scales in favor of the right of privacy, then certainly the constitutional amendment would have that effect.

In my opinion the judgment of the trial court should be reversed.

      . Section 23 of article I of the Florida Constitution, approved by the electorate in November of 1980, provides:
      SECTION 23. Right of privacy. — Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Peter S. PENROSE, Respondent.
    Nos. 60380, 61131.
    Supreme Court of Florida.
    March 11, 1982.
    Rehearing Denied May 19, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Jacquelyn Plasner Needelman, Bar Counsel and Walter G. Campbell, Jr., Chairman and Dale R. Sanders, Vice-Chairman, Seventeenth Judicial Circuit Grievance Committee “E”, Fort Lauderdale, of The Florida Bar, for complainant.
    William L. Penrose of Harris, Barrett & Dew, St. Petersburg, for respondent.
   PER CURIAM.

This is a disciplinary proceeding brought by the Florida Bar. An evidentiary hearing before the referee resulted in a recommendation that the respondent be disbarred. The record supports the findings of the referee that the respondent (1) abandoned his law practice, leaving all files unattended and in the possession of a nonlawyer; (2) pled guilty to violating 21 U.S.C. § 844 (1977) (possession of marijuana); (3) failed to conclude a dissolution after accepting a fee to do so; (4) was involved in a conspiracy to purchase and distribute marijuana; and (5) was guilty of extortion. We approve and concur with these findings.

The composite conduct of this person is gross and clearly warrants disbarment. The legal profession cannot tolerate such conduct. Peter S. Penrose is hereby disbarred from the practice of law. Costs in the amount of $3,998.12 are assessed against him.

It is so ordered.

ADKINS, Acting Chief Justice, and BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.


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

text:
    Thomas (Fred Phillip) ROUSH, Petitioner, v. STATE of Florida, Respondent.
    No. 57241.
    Supreme Court of Florida.
    April 8, 1982.

      Franklin R. Harrison of Davenport, Johnston, Harris, Gerde, Harrison & Nabors, Panama City, for petitioner.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, and Edward A. Miller, Chief Asst. State Atty. and William L. Wright, Asst. State Atty., Fourteenth Judicial Circuit, Panama City, for respondent.
   PER CURIAM.

This cause is before the Court on petition for certiorari to review two interlocutory orders of the Circuit Court of the Fourteenth Judicial Circuit, Bay County. In issuing the orders, the court passed upon the constitutionality of a state statute. Therefore, a final judgment in the cause, under the jurisdictional provisions in effect at the time the notice of certiorari was filed, would have been appealable to this Court. We have jurisdiction, article V, section 3(b)(3), Florida Constitution (1972), and uphold the constitutionality of section 812.-035, Florida Statutes (1977), and approve the action of the court below.

In response to numerous consumer complaints that petitioner Thomas Roush’s Guaranteed Transmission Service was involved in a continuing scheme of fabricating or escalating transmission repair costs, law enforcement officers in Bay County initiated a secret investigation to determine whether Roush’s business was perpetrating a fraud upon the public. During the investigation, an undercover agent, driving a vehicle with a nondefective transmission, left the car with Roush’s business and requested the advertised “$9.95 Special” transmission tune-up. When the agent later called to learn whether the car had been serviced, she was told that unexpected problems in the transmission had been discovered and that the necessary repairs would require an additional payment of $39.95, plus parts. The agent agreed to the repair, but, on the following day, she was informed that the problems were more serious than originally suspected and that the estimated cost of the required service would be approximately $289.50. After giving her permission to have the necessary work performed — the cost of which finally amounted to $314.42 — the agent retrieved the vehicle and turned it over to an expert transmission mechanic for inspection. The expert later testified that he could find no indication that any internal transmission repairs had in fact been made. Based on evidence gathered during the investigation, the employee who had dealt with the agent was arrested and charged with grand theft in violation of section 812.014, Florida Statutes (Supp.1978), which defines and prohibits “theft.”

Subsequently, on Friday, June 22, 1979, the state attorney, pursuant to section 812.-035, filed a motion for equitable relief with the circuit court seeking to enjoin the operation of Roush’s transmission repair business, to suspend his local business license, and to seize the property used in the business. At 12:50 p. m. that day Roush was served with the motion along with a summons and notice of hearing to be held at 3:00 p. m. the following Monday, June 25, 1979.

At the hearing Roush appeared with counsel and moved for a continuance, arguing that he had not been allowed adequate time to prepare a response to the state attorney’s petition. The court denied the motion and proceeded with the hearing. The state then presented a number of witnesses who testified about the seemingly fraudulent activities of Roush’s business. Among those testifying were several former customers who believed that they had paid for unnecessary and unsatisfactory transmission repairs under conditions similar to those discovered during the undercover operation. Roush offered no evidence. At the conclusion of the hearing, the court enjoined Roush from operating his transmission business until further order and ordered the seizure of all real and personal property used in the business.

By motion for rehearing, Roush raised the issues of the constitutionality of section 812.035 and the adequacy, under due process principles, of the notice provided him in this case. The court upheld the statute and held that the notice comported with due process. Roush contends these two rulings were in error.

At the outset, it should be noted that the instant case presents this Court with no problem of statutory construction. To buttress this conclusion, several observations are in order relative to the scope of the Florida Anti-Fencing Act, sections 812-005-812.037, Florida Statutes (1977 & Supp. 1978), and its applicability to' Roush’s conduct, as well as to the actions of the state and circuit court.

Doubtless, some would argue that the statute’s short title, “The Florida Anti-Fencing Act,” implies some intent on the part of the legislature to limit the scope of the act to fencing activities, thus removing Roush’s alleged consumer fraud from the act’s coverage. As this Court stated in King Kole, Inc. v. Bryant, 178 So.2d 2, 4 (Fla.1965), however, a “title need not be an index to the contents. It is not necessary that it delineate in detail the substance of the statute.” Further, in the presence of language as unequivocal as that embodied in the act, “[wjhere the words selected by the Legislature are clear and unambiguous, . . . judicial interpretation is not appropriate to displace the expressed intent.” He- redia v. Allstate Insurance Co., 358 So.2d 1353, 1355 (Fla.1978) (emphasis supplied).

An examination of the Florida Anti-Fencing Act clearly reveals that, despite its narrow title, the act encompasses a range of activities far broader than trafficking in stolen property. One such activity embraced by the statute is theft. Section 812.-014 provides that:

(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent:
(a) To deprive the other person of a right to the property or a benefit therefrom.
(b) To appropriate the property to his own use or to the use of any person not entitled thereto.

Subsection 812.012(2)(d)(l) defines “obtains or uses” to mean any manner of “[ejonduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception.” (Emphasis supplied.) Although the act expands the common law notion of theft, it is undisput-ably within the legislature’s power to provide that statutory expansion.

Since the language pertaining to theft is of such a clear and concise nature, this Court is guided by the rule that “unambiguous statutory language must be accorded its plain meaning.” Carson v. Miller, 370 So.2d 10, 11 (Fla.1979). Applying this rule to the facts of the instant case, it is clear that the alleged fraudulent and deceptive trade practices conducted by Roush’s business constituted theft pursuant to the act and rendered Roush subject to the sanctions authorized by the act.

Unlike many criminal statutes, the Florida Anti-Fencing Act provides civil remedies, as well as criminal penalties, for violations of the act. Subsection 812.035(5) specifically confers upon any state attorney the authority to institute civil proceedings in response to violations of the act. Accordingly, in the instant case the Bay County State Attorney, armed with convincing evidence of Roush’s fraudulent scheme, filed a motion for equitable relief with the circuit court, seeking imposition of the civil remedies provided by the act. In conducting a hearing on the Monday immediately following Roush’s Friday receipt of service, the circuit court adhered to the dictate contained in subsection 812.035(5) that “the circuit court shall proceed as soon as practicable to the hearing” of actions brought under the section. (Emphasis supplied.) Although a weekend intervened between the service and hearing, the fact remains that the court followed the clear command of the section. And, just as the court’s timing of its adjudication complied with the act, so too did the court’s imposition of civil remedies.

Subsection 812.035(5) provides that “[pjending final determination, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, ... as the court may deem proper.” Further, the court may order the seizure of all property subject to forfeiture under section 812.035. § 812.-035(3), Fla.Stat. (1977). Subject to forfeiture is “[a]ll property .. . used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation” of the act. § 812.035(2), Fla. Stat. (1977). Consequently, “after making due provisions for the rights of innocent persons” (subsection 812.035(1)), the circuit court had at its disposal a wide range of civil remedies with which it could prevent further violations of the act by Roush. In ordering the seizure of Roush’s business property and temporarily restraining the conduct of his business activities, the court acted squarely within the bounds of its legislatively given authority. Thus, it is clear that the conduct of Roush’s business was of a nature sufficient to bring it within the scope of the act. Likewise, the statute sanctioned the actions taken by the state and circuit court.

While any question relative to the applicability of the act here is easily resolved, a more difficult question is posed by the contention that enforcement of the civil remedies section of the act resulted in violations of Roush’s procedural and substantive due process rights. We find, however, no merit to this claim.

Roush alleges that the speedy fashion in which the circuit court adjudicated his case deprived him of reasonable notice and the time to mount an adequate defense to the charges facing him, deprivations tantamount to infringements on his procedural due process guarantees. As noted, however, the court’s timing of its hearing was in response to the directive contained in subsection 812.035(5) that actions brought under the section “shall proceed as soon as practicable.” Given the remedial nature of the act (section 812.037), we find nothing unreasonable about this directive and believe the circuit court was justified in conducting the hearing at the earliest possible opportunity in an effort to prevent further harm. The state presented ample evidence of the continuing nature of Roush’s alleged wrongdoing, and, had the court not acted as and when it did, additional consumers could well have been bilked. Militating further against Roush’s procedural argument is the fact that, at the hearing, he was represented by counsel. Obviously, had he chosen to do so, Roush could have countered the state’s evidence through a declaration of innocence or by a proffer of mitigating or extenuating circumstances. That he instead chose to remain silent at the hearing was an informed, though consequence-laden decision. It can be surmised that, had Roush offered some defense, the lower court might well have been disposed to favorably entertain his later request for a continuance. In any event, there is nothing in the record to indicate that the court took any action violative of Roush’s procedural rights, and we affirm the court’s denial of the motion for continuance and rehearing.

Having disposed of Roush’s procedural argument, we turn to the issue of whether the civil remedies imposed by the court in any way violated his substantive due process rights. As noted, section 812.035 gives the circuit court the discretionary power to order a number of harsh civil remedies, including injunctions, divestitures, restraining orders, forfeitures and seizures — all of which can be imposed in the absence of a criminal conviction. As with any discretionary power, the possibility of abuse is ever present. Clearly, a court must be extremely cautious and circumspect in exercising the broad powers conferred by the act. As dictated by subsection 812.035(1), however, a circuit court may act only “after making due provisions for the rights of innocent persons.” As earlier demonstrated, the circuit court gave Roush every opportunity to establish his innocence at the hearing. Further, in light of the facts of this case, the court acted in a reasonable manner calculated to prevent future public harm. In no way can it be said that the court abused its discretion.

Nor can it be said that the sanctions imposed by the court were unreasonable or unconstitutional. Although the constitutionality of the civil remedies section of the act is one of first impression for this Court, federal courts have determined that the nearly identical civil remedies provision contained in the Organized Crime Control Act of 1970 (18 U.S.C. § 1964 (1976)) in no way deviates from constitutional requirements. In the leading federal case the court in United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974), upheld the constitutionality of 18 U.S.C. § 1964 and stated:

Section 1964 provides for a civil action in which only equitable relief can be granted. The relief authorized by that section is remedial not punitive and is of a type traditionally granted by courts of equity. It is the same kind of equitable relief that federal courts have been granting for generations in civil actions under Section 4 of the Sherman Act and Section 15 of the Clayton Act, 15 U.S.C. §§ 4 and 25.

Id. at 1357. Further, the court found that Congress had the power to provide both criminal and civil remedies for violations of the statute and stated:

It has thus been settled ... that acts which may be prohibited by Congress may be made the subject of both criminal and civil proceedings, and the prosecuting arm of the government may be authorized to elect whether to bring a civil or criminal action, or both. A civil proceeding to enjoin those acts is not rendered criminal in character by the fact that the acts also are punishable as crimes.

Id. Additionally, the court made clear that equitable principles govern the granting of relief pursuant to section 1964 and stated:

Whether equitable relief is appropriate depends, as it does in other cases in equity, on whether a preponderance of the evidence shows a likelihood that the defendants will commit wrongful acts in the future, a likelihood which is frequently established by inferences drawn from past conduct.

Id. at 1358. Accordingly, Cappetto upheld the lower court’s injunction restraining the defendants from continuing their alleged gambling activities, even though they had not been convicted of a criminal offense.

Cappetto’s interpretation of the civil remedies section of the federal act was extended in Farmers Bank v. Bell Mortgage Corp., 452 F.Supp. 1278 (D.Del.1978). In Farmers Bank the federal district court expressly rejected the argument that, absent conviction of a violation of the act, a defendant cannot be subject to the civil remedies of the act. Instead, the court held that the civil remedies section of the act “does not condition that [civil] cause of action in any way upon a previous conviction under the criminal provisions of the Statute.” Id. at 1280.

These federal cases represent a reasoned and sound analysis of the issue. In line with these cases, we hold that it was indeed within the power of our legislature to provide civil remedies for violations of the Florida Anti-Fencing Act and that the imposition of those remedies is in no way dependent upon an adjudication of guilt. Further, we find that the civil sanctions imposed by the circuit court, although stringent, were justified by the act, were responsive to the remedial goals of the act, and in no way violated Roush’s constitutional rights. By seizing Roush’s property and temporarily suspending his business operations, the circuit court effectively inhibited future fraudulent conduct and protected the consuming public from further harm.

Of special significance in this case is the fact that the actions taken by the circuit court were of a temporary nature, designed to prevent continuing harm. The record offers no evidence that the court took steps to impose forfeiture, the strictest civil remedy provided by the act, and we have no occasion to consider the constitutional ramifications had the court chosen to order forfeiture.

We find nothing unconstitutional about section 812.035. Certainly, the civil remedies provided therein can be considered stringent. Certainly, the court that imposes those remedies upon one who has not been criminally convicted must be careful in exercising its discretionary power. But just as certainly, the section represents a purposeful and meaningful legislative effort to combat theft and theft-related criminal activities. The authorized civil sanctions provide the state with an effective tool to halt the continuing harmful effects of those activities. Further, the civil remedies benefit aggrieved citizens, affording them the incentive to pursue claims for loss caused by various forms of theft. Accordingly, we hold that section 812.035, Florida Statutes (1977), is constitutional both on its face and as applied in this case, and we affirm the action of the circuit court.

It is so ordered.

SUNDBERG, C. J., and ADKINS, ALDERMAN and McDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

OVERTON, Justice,

dissenting:

I do not find the legislature had any intent to have this criminal Anti-Fencing Act construed to provide civil consumer protection remedies.

BOYD, Justice,

dissenting.

I dissent for several reasons. The first ground, which I discuss first because we should if possible avoid a statutory construction requiring a holding of unconstitutionality, is that the Court errs in giving effect to the literal words of section 812.035 when such effect is clearly at variance with the legislative intent.

The face of the statute demonstrates an ambiguity requiring judicial construction. While the literal language of the statute is susceptible of application to all forms of the new broadly defined crime of theft, the act of which section 812.035 is a part is denominated “The Florida Anti-Fencing Act.” § 812.005, Fla.Stat. (1977). Since we know that “fencing” refers to the marketing of stolen goods, and since sections 812.012-812.037 deal with theft, trafficking in stolen property, and related offenses, we must recognize the difficulty involved in applying the act to the situation of alleged fraud in the auto repair business. “In construing a statute, this Court is committed to the proposition that a statute should be construed and applied so as to give effect to the evident legislative intent, regardless of whether such construction varies from the statute’s literal meaning.” Griffis v. State, 356 So.2d 297, 299 (Fla.1978). The legislative history of the act finally resolves the ambiguity and demonstrates that the civil remedies provided for were intended to be used against the problem of trafficking in stolen property.

Second, even if the legislature intended for the statute to be applied in cases such as this, the Court errs further in failing to see the unconstitutionality of the legislative scheme. Petitioner’s business was closed and his property seized without proof of wrongdoing on his part. He has suffered deprivation of property without due process of law.

The statute in question declares certain conduct to be against public policy and prohibits such conduct. The statute seeks to deter such conduct by punishing violations. The statute therefore is penal in nature, even though the penalties provided for are denominated “civil remedies.” A penal sanction is no less penal simply because we call it a “civil” rather than a “criminal” penalty.

The Court observes and relies upon the fact that petitioner was given an opportunity to prove his innocence. When the state seeks to close a business and seize business property, it should be required to prove that the defendant violated the law. Under our constitution, the process of imposing penalties on offenders is accusatorial and not inquisitorial. The accused is not required to prove anything but is presumed innocent. The Court’s shifting of the normal constitutionally-based burden of proof is sought to be justified on the basis of the distinction between “criminal” and “civil” penalties. In light of the harsh penalties authorized by the statute and imposed upon the petitioner in this case, I find the distinction artificial.

Third, even if it could be said that the exigencies of our times demand that under certain circumstances we dispense with the necessity for a trial as traditionally understood in our jurisprudence, still the procedure followed in the present case would not comport even minimally with due process standards. That is, even if it were constitutional to require the accused to prove his innocence or else lose his livelihood and property, it still would not be constitutional to require him to prove his innocence on Monday after being served notice on Friday afternoon. Even if the majority were correct in holding that the statute is not oppressive in substance, we should still hold that it is oppressive in procedure.

The concept of due process, the presumption of innocence, the requirement that only those shown to have violated published laws may be subjected to penal sanctions — these are principles that the founders of this Republic found so important that they insisted on their being written into the basic charter as the Bill of Rights. They were intended as protections against arbitrary and oppressive governmental action. The framers of the Bill of Rights knew from history and from personal experience that without such protections, the rights of individuals are commonly trampled upon by kings and governments as they go about the business of promulgating and enforcing “public policy.” The history of our Republic shows that the wisdom of the founding fathers has been expanded upon through the recognition that the states, and not just the national government, are also prohibited from the arbitrary infliction of punishments and deprivations.

The Court’s construction of the statute may have far-reaching effects; small businesses circumstantially linked to fraud on customers are not the only concerns that may be affected. A private firm with millions of dollars worth of assets could have its property confiscated by the state because one dishonest employee has cheated some customers even without the knowledge of the managers or owners. I do not think the legislature intended such results, but if it did then the statute is clearly unconstitutional.

       812.035 Civil remedies; limitation on civil and criminal actions.—
      (1) Any circuit court may, after making due provisions for the rights of innocent persons, enjoin violations of the provisions of ss. 812.012-812.037 by issuing appropriate orders and judgments, including, but not limited to:
      (a) Ordering any defendant to divest himself of any interest in any enterprise, including real estate.
      (b) Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which he was engaged in violation of the provisions of ss. 812.012-812.037.
      (c) Ordering the dissolution or reorganization of any enterprise.
      (d) Ordering the suspension or revocation of any license, permit, or prior approval granted to any enterprise by any department or agency of the state.
      (e) Ordering the forfeiture of the charter of a corporation organized under the laws of the state or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of ss. 812.012-812.037 and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked.
      (2) All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of a provision of ss. 812.012-812.037 is subject to civil forfeiture to the state. The state shall dispose of all forfeited property as soon as commercially feasible. If property is not exercisable or transferable for value by the state, it shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons.
      (3) Property subject to forfeiture under this section may be seized by a law enforcement officer upon court process. Seizure without process may be made if:
      (a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant.
      (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section.
      (c) The law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to the [public] health or safety.
      (d) The law enforcement officer has probable cause to believe that the property is otherwise subject to forfeiture under this section.
      (4) In the event of a seizure under subsection (3), a forfeiture proceeding shall be instituted promptly. When property is seized under this section, pending forfeiture and final disposition, the law enforcement officer may:
      (a) Place the property under seal.
      (b) Remove the property to a place designated by the court.
      (c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.
      (5) The Department of Legal Affairs, any State Attorney, or any state agency having jurisdiction over conduct in violation of a provision of ss. 812.012-812.037 may institute civil proceedings under this section. In any action brought under this section, the circuit court shall proceed as soon as practicable to the hearing and determination. Pending final determination, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court may deem proper.
      (6) Any aggrieved person may institute a proceeding under subsection (1). In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Upon the execution of proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order and a preliminary injunction may be issued in any such action before a final determination on the merits.
      (7) Any person who is injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 shall have a cause of action for three-fold the actual damages sustained and, when appropriate, punitive damages. Such person shall also recover attorneys’ fees in the trial and appellate courts and costs of investigation and litigation.
      (8) A final judgment or decree rendered in favor of the state in any criminal proceeding under ss. 812.012-812.037 shall estop the defendant in any subsequent civil action or proceeding as to all matters [as to] which such judgment or decree would be an estoppel as between the parties.
      (9) The Department of Legal Affairs may, upon timely application, intervene in any civil action or proceeding brought under subsection (6) or subsection (7) if he certifies that, in his opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the Department of Legal Affairs had instituted this action or proceeding.
      (10) Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss. 812.012-812.037 may be commenced [at any time within] 5 years after the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent, or restrain any violation of the provisions of ss. 812.012-812.037, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (6) or subsection (7) which is based in whole or in part upon any matter complained of in any such prosecution, action, or proceeding shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination.
      (11) The application of one civil remedy under any provision of ss. 812.012-812.037 shall not preclude the application of any other remedy, civil or criminal, under ss. 812.-012-812.037 or any other section of the Florida Statutes.

      . The designation, “Florida Anti-Fencing Act” is not a statutory “title” as that term is used in article III, section 6, Florida Constitution. Therefore, King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965), cited by the Court, is inapposite. The designation is, however, part of the statute and is one of the things we must look at in determining legislative intent.

      . Section 812.035 was enacted when the 1977 legislature passed and the governor approved the Committee Substitute for Senate Bill No. 1431. Ch. 77-342, Laws of Fla. The history of the bill demonstrates the intent that the civil remedies were designed for use against persons trafficking in stolen property.
      The bill creates two new classes of crime: the first trafficking in stolen property, and the second and more severe crime, theft and trafficking in stolen property. The bill codifies existing law with respect to evidence of dealing in stolen property and precludes certain defenses. The bill provides for a fine and civil remedies, and provides for the rights of innocent parties.
      Staff Analysis and Economic Statement, SB 1431 (1977) (emphasis in original). The analysis also explained that the language was borrowed from the civil remedies section of the Florida Racketeer Influenced and Corrupt Organizations Act. See § 943.464, Fla.Stat. (1979). The civil remedies section was adopted because of the difficulties law enforcement officials face in apprehending and prosecuting distributors of stolen property. See Blakely and Goldstein, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 U.Miami L.Rev. 1512, 1601-11 (1976).


text:
    Brett Wesley GREENWAY, Appellant, v. STATE of Florida, Appellee.
    No. 58923.
    Supreme Court of Florida.
    April 8, 1982.
    Shon A. Saxon, Asst. Public Defender, Eighth Judicial Circuit, Starke, for appellant.
    Jim Smith, Atty. Gen. and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

By direct appeal appellant challenges the constitutionality of section 944.47, Florida Statutes (Supp.1978). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Counsel for appellant has adopted the arguments and briefs presented in Wells v. State, 402 So.2d 402 (Fla.1981), and, in fact, submits that Wells is determinative of the issues in the instant case. In light of the decisions in both Wells and Clark v. State, 395 So.2d 525 (Fla.1981), we agree and again uphold the constitutionality of section 944.47 and the appellant’s conviction thereunder.

Appellant may challenge only those portions of section 944.47 with which he is charged since he is unaffected by other provisions. State v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947). Thus, appellant’s only remaining constitutional challenge is that section 944.47 is vague as applied to his conduct.

Appellant, an employee of the Florida State Prison, attempted to smuggle two marijuana cigarettes into the prison. He was convicted, pursuant to section 944.47, Florida Statutes (Supp.1978), of introducing contraband into the prison and received a sentence of six months incarceration and three years probation. Wells and Clark arise out of similar facts and are dispositive of this case.

“To perceive that smuggling drugs into a prison is prohibited activity requires only a minimum of common understanding. As applied to Wells’ conduct, section 944.47 gave fair notice that her particular behavior was illegal.” Wells v. State, 402 So.2d at 406. “When appellant brought marijuana into the prison, his conduct was clearly illegal and proscribed in understandable terms.” Clark v. State, 395 So.2d at 527.

Appellant engaged in essentially the same illegal acts as those held clear and understandable in both Wells and Clark. Section 944.47 is not unconstitutionally vague as applied to Greenway and so we affirm his conviction.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.