author: PER CURIAM. McDONALD, Justice,

text:
    Askari Abdullah MUHAMMAD, formerly known as Thomas Knight, Appellant, v. STATE of Florida, Appellee.
    No. 61454.
    Supreme Court of Florida.
    Dec. 16, 1982.
    Rehearing Denied March 2, 1983.

      Susan Cary, Gainesville, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Askari Abdullah Muhammad, formerly known as Thomas Knight, appeals the denial without a hearing of his motion to vacate judgment and sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. Since we find that the motion and the files and records in the case conclusively show that appellant is not entitled to relief, we affirm the trial court’s action denying the motion without an evidentiary hearing. See Foster v. State, 400 So.2d 1 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980); Graham v. State, 372 So.2d 1363 (Fla.1979).

Appellant was convicted of two counts of first-degree murder and was sentenced to death. He appealed, and this Court affirmed the convictions and sentences. Knight v. State, 338 So.2d 201 (Fla.1976). Later appellant filed a petition for a writ of habeas corpus with this Court, alleging ineffective assistance of appellate counsel. In that case we announced a set of standards for evaluating a claim of denial of effective assistance of counsel and, applying the standards, we denied the petition. Knight v. State, 394 So.2d 997 (Fla.1981).

Appellant then filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida, raising several federal constitutional questions. The federal district court found that appellant had exhausted possible state remedies as to all the questions raised except for his assertion that he had received ineffective assistance of counsel at his trial. The district court entered an order retaining jurisdiction for the purpose of continuing a previously entered stay of execution provided appellant should promptly seek available state remedies on his claim. Knight v. Wainwright, 399 So.2d 1143 (S.D.Fla.1981).

Appellant then filed the instant Rule 3.850 motion with the court in which he was tried and sentenced. The motion stated nine grounds for relief. The court ordered the parties to submit memoranda on the question of the need for an evidentiary hearing on the issue of denial of effective assistance of trial counsel, but summarily ruled against appellant on the remaining eight grounds. After considering the arguments of the parties, the court found that an evidentiary hearing was not necessary and denied the motion to vacate judgment and sentence.

In the present appeal appellant challenges the summary denial of his motion for post-conviction relief. There is little question that eight of the nine grounds appellant raised were properly denied without a hearing. If the motion and the record and files of the case conclusively show that the movant is not entitled to relief, the motion may be denied without an evidentiary hearing. Foster v. State, 400 So.2d 1 (Fla.1981).

Two of the grounds of the motion— that appellant was denied a fair trial by an impartial jury and that he had a right to notice of whether the state would prosecute on the ground of premeditation or felony murder — were raised and decided adversely to appellant in his initial appeal. See Knight v. State, 338 So.2d 201 (Fla.1976). Two other grounds — that the trial court failed to instruct the jury on the underlying felony of the felony murder charge and that appellant was denied the right to effective appellate review — were decided adversely to appellant when he sought a writ of habeas corpus from this Court, Knight v. State, 394 So.2d 997 (Fla.1981), and will not be reconsidered now. Two other grounds— that the court erred in excluding the testimony of a defense witness and erred in failing to instruct the jury on the consequences of a verdict of not guilty by reason of insanity — are issues that could have been raised on the initial appeal and are therefore not proper matters to be considered on a motion for post-conviction relief. See Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Sullivan v. State, 372 So.2d 938 (Fla.1979). Two other issues raised by the motion — that the sentence of death is an arbitrary application of the death penalty law and that capital punishment is imposed on black offenders in a racially discriminatory manner — may be summarily rejected on their merits. Thomas v. State, 421 So.2d 160 (Fla.1982); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

The remaining ground put forth by the motion is the allegation that appellant was deprived of the right to effective assistance of counsel at his trial. There are four requirements that such a motion must meet in order for appellant to be entitled to relief:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in [United States v. De-coster]| Decoster III: “To be ‘below average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.” 624 F.2d [196] at 215. We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established.

Knight v. State, 394 So.2d at 1001 (footnote omitted). The court below considered appellant’s allegations in light of the above-quoted requirements and provided a detailed written analysis of the contentions. Assuming, for purposes of argument on the motion, that the allegations were true, the court nevertheless concluded:

A. The allegations of the motion, either singly or as a whole, do not allege an egregious incompetency, falling measurably below that which might be expected from an ordinary fallible lawyer, or probably prejudicial;
B. The allegations, even if proved, would not demonstrate that the alleged deficiencies likely deprived defendant of an otherwise available, substantial ground of defense;
C. The file and records of the case conclusively show that defendant’s trial counsel was reasonably to render [sic] and did render reasonably effective counsel based on the totality of the circumstances;
D. The motion and the files and records of the case conclusively show that the defendant is entitled to no relief....

The motion presented numerous asserted specific acts or omissions which appellant says constituted deficiencies in his trial counsel’s performance. Regarding the problem of pretrial publicity, appellant says that his trial lawyer failed to adequately present evidence of prejudicial publicity, failed to preserve the record for appeal of the denial of the motion for change of venue, and failed to request individualized, sequestered examination of prospective jurors. As we held in the original appeal, however, the crucial issue is not the amount of publicity but whether the accused is tried by a jury of impartial, indifferent jurors. Knight v. State, 338 So.2d 201, 203 (Fla. 1976). The record shows that trial defense counsel did present evidence of pretrial publicity in support of the motion for change of venue. The denial of the motion for change of venue was reviewed and affirmed on appeal. Id. The record also shows that defense counsel questioned prospective jurors extensively regarding any influence the pretrial publicity may have had on them. With reference to the charge that defense counsel omitted to request sequestered and individual examination of prospective jurors, “it must be recognized that the methods of jury voir dire are subjective and individualistic.” Meeks v. State, 418 So.2d 987, 988 (Fla.1982). We do not find counsel’s choice of tactics on this matter to have been a deficiency measurably below the standard expected. See Lewis v. State, 398 So.2d 432 (Fla.1981); Washington v. State, 397 So.2d 285 (Fla. 1981); McNeal v. State, 409 So.2d 528 (Fla. 5th DCA), rev. denied, 413 So.2d 876 (Fla. 1982). Regarding the assertion that defense counsel failed to preserve the record for appeal of the denial of the motion for change of venue, neither the motion for post-conviction relief nor the appellant’s brief is sufficiently definite about what the specific act or omission is.

The next deficiency appellant asserts is that counsel failed to adequately investigate, prepare, and present evidence concerning appellant’s psychiatric problems. The failure, appellant contends, prejudiced him at both the guilt and penalty phases of the trial. Appellant alleges that counsel did not learn about a psychological examination conducted by Dr. David Rothenberg until a few days before trial, failed to present evidence of the abusive behavior of appellant’s father during his childhood and the effect on appellant’s personality, and failed to fully prepare Dr. Rothenberg to testify. In finding that counsel had fully and adequately presented an insanity defense, the judge below relied upon his own recollection of what occurred at the trial. See Friedman v. United States, 588 F.2d 1010 (5th Cir.1979); Farrow v. United States, 580 F.2d 1339 (9th Cir.1978); Pánico v. United States, 412 F.2d 1151 (2d Cir. 1969), cert, denied, 397 U.S. 921, 90 S.Ct. 901, 25 L.Ed.2d 102 (1970). In its order the trial court said:

Dr. Rothenberg testified at the trial for more than a day, as shown by approximately 300 pages of testimony, concerning his several examinations of defendant, tests given to defendant, together with his findings and opinions. Nowhere in his extensive testimony does Dr. Roth-enberg give the slightest hint that he lacked and “needed” background information about defendant or his family; nor copies of reports of the State’s expert witnesses; nor that he was handicapped by lack of access to tapes of his interviews with defendant. As a matter of fact, he testified in a very positive manner concerning his opinion that defendant was not competent at the time of the murders, and gave lengthy reasons for his opinion. He referred to copious notes that he had taken. He even testified that he did not need to hear the tapes to refresh his recollection, although the tapes were played during his testimony and he testified concerning them.
Defense attorney Meadows interrogated Dr. Rothenberg thoroughly and knowledgably. This was no matter of course, ho-hum interrogation. A reading of the transcript makes it obvious that Mr. Meadows had thoroughly prepared the examination of the psychologist.

Since the record supports the trial court’s conclusions, we agree that defense counsel was not ineffective in this respect. See Foster v. State, 400 So.2d 1 (Fla.1981); Washington v. State, 397 So.2d 285 (Fla.1981); Alvord v. State, 396 So.2d 184 (Fla.1981).

Appellant’s next contention regarding ineffectiveness of counsel is that his lawyer failed to object to improper jury instructions at the guilt and penalty phases of the trial. Appellant says that his lawyer was deficient in failing to request an instruction upon the elements of the underlying felony. However, we have already held that there was sufficient proof of premeditation. Knight v. State, 338 So.2d at 204. Therefore the omission of the instruction was not error and the omission of an objection thereto was not a deficiency. Appellant also contends that counsel was defective in not requesting an instruction on the consequences of a verdict of not guilty by reason of insanity. A defendant’s right to such an instruction had not yet been established at the time of appellant’s trial. See Roberts v. State, 335 So.2d 285 (Fla.1976). Therefore appellant’s argument places upon defense lawyers the duty of anticipating changes in the law and is without merit. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Alvord v. State, 396 So.2d 184 (Fla.1981); Knight v. State, 394 So.2d 997 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980). With regard to the remaining assertions of ineffectiveness in failure to request jury instructions, appellant has failed to show that he was entitled to receive the instructions in question. Since appellant was not entitled to receive the instructions, trial counsel cannot be judged deficient for not requesting them.

Appellant next argues that defense counsel was ineffective at the sentencing phase of the trial in that he did not present evidence of nonstatutory mitigating considerations based on appellant’s character and background. This contention is without merit. It presupposes that counsel was expected to predict the decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See Ford v. State, 407 So.2d 907 (Fla.1981).

Finally, appellant argues that his lawyer was ineffective in not objecting to certain remarks made by the prosecutor in closing argument which appellant says were improper. After reviewing the record, we find that none of the remarks were so improper and prejudicial as to have required declaring a mistrial. In such instances, an attorney may decide that it is better not to object to the remark and ask for a curative instruction, because to do so would only further call the jury’s attention to the improper remarks. Whether to object is a matter of trial tactics which are left to the discretion of the attorney so long as his performance is within the range of what is expected of reasonably competent counsel. We therefore find no deficiency in trial counsel’s not objecting to the prosecutor’s remarks. See generally Washington v. State, 397 So.2d 285 (Fla.1981); McNeal v. State, 409 So.2d 528 (Fla. 5th DCA), rev. denied, 413 So.2d 876 (Fla.1982); Ferby v. State, 404 So.2d 407 (Fla. 5th DCA 1981).

In conclusion, we agree with the trial court that appellant, even if he had proved all the factual allegations of his motion, would have been unable to establish that any act or omission of his trial counsel was a substantial deficiency measurably below the standard of performance expected of competent counsel. Since the motion and the record conclusively showed that appellant was entitled to no relief, the trial judge was correct in denying the motion without holding an evidentiary hearing. The court’s order is therefore affirmed.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD and EHRLICH, JJ., concur.

McDONALD, Justice,

dissenting:

“I feel that there are sufficient allegations which are not rebutted by the record to require an evidentiary hearing on the claim of ineffective assistance of counsel in the sentencing phase.”

OVERTON, J., dissents and concurs with McDonald, j.


source: Caselaw Access Project

author: OVERTON, Justice. ALDERMAN, Chief Justice, OVERTON, Justice. ALDERMAN, Chief Justice,

license: Public Domain

text:
    Richard J. OSTERNDORF, et al., Petitioners, v. John TURNER, et al., Respondents.
    No. 61948.
    Supreme Court of Florida.
    Dec. 16, 1982.
    On Rehearing Feb. 3, 1983.

      Richard J. Osterndorf, Daytona Beach, for petitioners.
    Jim Smith, Atty. Gen. and Barbara Sta-ros Harmon, Asst. Atty. Gen., Tallahassee, for respondents.
    Robert J. Winicki, Jacksonville, for ami-cus curiae.
    Barry Richard of Roberts, Baggett, La-Face, Richard & Wiser, Tallahassee, for H. Lee Moffitt, Speaker, and the Florida House of Representatives, amicus curiae.
   OVERTON, Justice.

This is a petition to review a decision of the Fifth District Court of Appeal reported as Osterndorf v. Turner, 411 So.2d 330 (Fla. 5th DCA 1982). The issue concerns the constitutionality of section 196.031(3)(e), Florida Statutes (Supp.1980), which grants an enhanced homestead exemption of $25,-000 to homeowners who have been residents of the state for five consecutive years immediately prior to claiming the exemption, while homeowners with less than five years residency receive only the standard $5,000 exemption.

The district court held the statute constitutional and certified the following questions of great public importance:

1. Does section 196.031(3)(e), Florida Statutes (Supp.1980), violate the equal protection clause or the. due process clause of either the state or federal constitution?
2. Does section 196.031(3)(e), Florida Statutes (Supp.1980), violate the provisions of article VII, section 6, of the Constitution of Florida, as amended in 1980?

411 So.2d at 335.

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed, we answer the questions in the affirmative, holding unconstitutional that part of section 196.031(3)(e) which limits the $25,000 homestead tax exemption to those homeowners who have lived in Florida for five consecutive years, immediately prior to claiming the exemption. The $25,000 exemption, in our view, is applicable to all bona fide permanent residents. Our decision is based solely on the equal protection clause of the Florida Constitution and is prospective for the taxable year 1983 and subsequent years except for those persons who have judicially challenged the statute in a timely manner.

The home has a history of special significance in Florida law. Protection from the forced sale of homestead realty was part of the 1868 constitution (see art. X, § 1, Fla. Const. (1868)). In 1934, article X, section 7, as modified in 1938, was added to the then existing 1885 constitution to provide for a $5,000 homestead tax exemption similar to that of article VII, section 6(a), of the 1968 constitution. Although the forced sale exemption requires the claimant to be the head of a family and the tax exemption does not, both require the individual claiming the exemption to be a resident of Florida. See Holden v. Gardner, 420 So.2d 1082 (Fla.1982); Crosby and Miller, Our Legal Chameleon, The Florida Homestead Exemption: I-III, 2 U.Fla.L.Rev. 12 (1949); Note, Our Legal Chameleon is a Sacred Cow: Alienation of Homestead under the 1968 Constitution, 24 U.Fla.L.Rev. 701 (1972).

In 1980, changes in the homestead tax exemption provisions were brought about by inflation and the concern that a Proposition 13-type provision could pass in Florida. See Pajcic, Weber, and Francis, Truth or Consequences: Florida Opts for Truth in Millage in Response to the Proposition 13 Syndrome, 8 Fla.St.U.L.Rev. 593 (1980). At a special election held on March 11, 1980, article VII, section 6(c), Florida Constitution, was amended to provide an enhanced homestead tax exemption of $25,000 for school district ad valorem taxes, to be implemented “[b]y general law and subject, to conditions specified therein.”

On October 7, 1980, the voters approved article VII, section 6(d), Florida Constitution, which provided for a three-step enhanced homestead exemption for non-school district ad valorem taxes which also was to be implemented “[b]y general law and subject to conditions specified therein.” Under this provision the exemption was raised from $5,000 to $15,000 in 1980, to $20,000 in 1981, and to $25,000 in 1982.

To implement these enhanced homestead tax provisions, and apparently to reduce their local tax impact, the legislature enacted section 196.031(3)(d) and (e), Florida Statutes (Supp.1982), which reads as follows:

(d) For every person who is entitled to the exemption provided in subsection (1) and who has been a permanent resident of this state for the 5 consecutive years prior to claiming the exemption under this subsection, the exemption is increased to a total of $25,000 of assessed valuation for taxes levied by governing bodies of school districts.
' (e) For every person who is entitled to the exemption provided in subsection (1) and who has been a resident of this state for the 5 consecutive years prior to claiming the exemption under this subsection, the exemption is increased to a total of the following amounts of assessed valuation for levies of taxing authorities other than school districts: $15,000 with respect to 1980 assessments; $20,000 with respect to 1981 assessments; and $25,000 with respect to assessments for 1982 and each year thereafter.

The petitioners, who have resided in Florida for less than five years, challenged the five-year residency prerequisite to their entitlement to the $25,000 homestead tax exemption for 1982 under section 196.-031(3)(e). In the trial court, the state filed, without objection, the affidavit of Representative Ralph Haben, then Speaker of the House, to establish the purpose of the statute. Speaker Haben expressed four legislative bases: (1) that new residents have an immediate fiscal impact upon local government’s capital outlay and should pay their own share of this tax burden; (2) that tax savings should be passed on to longer term residents who have in recent years contributed tax dollars that have created a revenue surplus and made the increased tax exemption possible; (3) that the statute would discourage fraudulent homestead exemption applications; and, (4) that the statute would avoid the possibility of excessive immigration of individuals who desire lower taxes but are in need of many governmental services if Florida became too much of a tax haven.

The trial court granted a final summary judgment to the tax collector, concluding that the right to receive an increased ad valorem tax exemption was neither a fundamental right guaranteed by the United States Constitution nor a basic necessity of life, the denial of which penalizes the exercise of the constitutional right to travel. Having so concluded, the trial court used the equal protection “rational basis” test to determine the validity of section 196.-031(3)(e). Finding the purpose of the statute is to require new residents to aid in offsetting the immediate fiscal impact they have on local governments, while providing long-time residents an increased exemption due to their past tax payments, the trial court held that the rational basis test was satisfied and that the statute was valid.

The district court affirmed and agreed with the finding of the trial court that there was a proper rational basis and concluded that the statute imposed a valid du-rational residency requirement. According to the district court, a homestead tax exemption is reviewed under the rational basis test because it is neither a basic necessity of life nor a fundamental political right and it “does not impose a significant penalty on the right to travel.” 411 So.2d at 333. The district court further held that the reasons expressed by Speaker Haben supplied a rational basis for the state to impose this durational residency requirement. The district court also reasoned that the language of the constitutional provision granting the enhanced exemption gave the legislature the authority to establish this type of durational residency requirement and that its decision was not in conflict with our decision in Sparkman v. State, 58 So.2d 431 (Fla.1952). We disagree.

The determining question is whether the statute prescribing the disparate tax treatment of resident homeowners violates the equal protection clause of article I, section 2, of the Florida Constitution.

Numerous cases have considered the constitutionality of residency requirements. The federal cases, although controlling on federal issues, are also relevant and persuasive to the consideration of whether Florida’s equal protection clause has been violated. In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the United States Supreme Court found unconstitutional a one-year durational residency requirement as a condition for receiving welfare benefits. The Supreme Court rejected the argument that eliminating this type of residency requirement would dilute the quality of services to present long-term residents, stating:

[Such] reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.

Id. at 632-33, 89 S.Ct. at 1330. In Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), the Supreme Court found a one-year residency requirement for voting unconstitutional as violative of the equal protection clause of the fourteenth amendment of the United States Constitution because it was not necessary to further a compelling state interest. The Court emphasized in its opinion the difference between bona fide residency requirements and durational residency requirements, and expressed the view that “durational residence requirements, representing a separate voting qualification imposed on bona fide residents, must be separately tested by the stringent standard” of being necessary to promote a compelling governmental interest. Id. at 344, 92 S.Ct. at 1004. In Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), the Supreme Court found unconstitutional du-rational residency requirements which deprived indigents of free medical care.

On the other hand, in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the Court upheld an Iowa statute which imposed a one-year residency requirement as a prerequisite to filing for divorce, and in Starns v. Malkerson, 326 F.Supp. 234 (D.C.Minn.1970), aff’d, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), the Court approved a district court ruling that permit ted Minnesota to condition the entitlement to less costly in-state tuition on a one-year durational residency requirement. In Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), however, the Court noted that “to apportion tuition rates on the basis of old and new residency ... would give rise to grave problems under the Equal Protection Clause of the Fourteenth Amendment.” Id. at 450 n. 6, 93 S.Ct. at 2235 n. 6.

The recent decision in Zobel v. Williams, - U.S. -, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982), is important with regard to the issues involved. In Zobel, Alaska amended its constitution to establish a permanent fund into which the state deposits at least twenty-five percent of its mineral income eách year. In 1980, the Alaska legislature enacted a dividend program to annually distribute a portion of the fund’s earnings directly to the state’s adult residents. Under the plan, each adult resident would receive one dividend unit for each year of residency subsequent to 1959, the first year of Alaska’s statehood. This plan was challenged by residents who had moved to Alaska in 1978. Alaska attempted to justify the residency distinction on the basis that it was a reasonable state objective to reward citizens for past contributions. The Supreme Court held that “that objective is not a legitimate state purpose.’’ 102 S.Ct. at 2314 (emphasis added). The majority opinion expressed the view that

If the States can make the amount of a cash dividend depend on length of residence, what would preclude varying university tuition on a sliding scale based on years of residence — or even limiting access to finite public facilities, eligibility for student loans, for civil service jobs, or for government contracts by length of domicile? Could States impose different taxes based on length of residence? Alaska's reasoning could open the door to state apportionment of other rights, benefits and services according to length of residency. It would permit the states to divide citizens into expanding numbers of permanent classes. Such a result would be clearly impermissible.

Id. at 2314r-15 (footnotes omitted) (emphasis added). In Zobel, the majority opinion did not consider the compelling state interest test but merely concluded that the Alaskan scheme did not meet the equal protection rational basis test. The majority opinion also clarified the application of Starns v. Malkerson, expressing the view that the one-year residency requirement for receiving benefits as an in-state student was justified only on the basis that it was necessary for the sole purpose of establishing bona fide residence. It should also be noted that five justices believed that the Alaska scheme was unconstitutional as infringing upon the right to travel, in violation of the privileges and immunities clause.

With regard to the constitutionality of homestead residency requirements, this Court, in Sparkman v. State, 58 So.2d 431 (Fla.1952), struck down a one-year dura-tional residency requirement. We found the statute to be “an unlawful attempt by the Legislature to alter, contract, or enlarge Section 7, Article X, by legislative enactment, contrary to the express pronouncements of this court that ‘Express or implied provisions of the Constitution cannot be altered, contracted or enlarged by legislative enactments.’ ” Id. at 432.

In Florida State Board of Dentistry v. Mick, 361 So.2d 414 (Fla.1978), we addressed a statute which provided a “continuing residency” requirement. The statute provided that any dentist who did not maintain a residence and domicile in Florida would be issued upon application a conditional renewal certificate. This certificate prohibited the dentist from practicing in the state until the certificate was renewed on an annual basis subject to an evaluation by the Board as to continued skill and competency. We distinguished between a “continuing” residency requirement and a “du-rational” residency requirement, concluding that the statute did not bear a just and reasonable relationship to a legitimate state interest, and that under the circumstances the conditional certificate for non-resident dentists and the accompanying fee were “no more than a discriminatory license fee imposed on some members of a profession to which all admitted members have already been deemed qualified.” Id. at 416.

In the instant case, we choose to hold section 196.031(3)(e) unconstitutional under the equal protection clause of article I, section 2, of the Florida Constitution, and therefore do not address its constitutionality under the equal protection clause of the fourteenth amendment and the privileges and immunities clause of the United States Constitution. We also do not need to apply Sparkman or to consider whether a strict scrutiny or compelling interest test is applicable because the five-year durational residency requirement of section 196.031(3)(e) fails even a minimum rational basis test.

It is contended that article VII, section 6(d), Florida Constitution, allows the legislature to divide its resident citizens into two permanent classes for homestead tax exemption purposes. We reject this view and find that Florida’s equal protection clause does not allow the legislature to establish two classes of permanent residents for homestead exemption. The statute in issue, not the constitutional provision, effectively establishes two categories of permanent residents for entitlement to homestead tax exemption. We find there is no rational basis for distinguishing between bona fide residents of more than five consecutive years and bona fide residents of less than five consecutive years in the payment of taxes on their homes. This disparate treatment of resident homeowners cannot be allowed if our equal protection clause is to have any real meaning. It is interesting to note that permanent residents of less than five years have all the other rights and privileges of permanent residents, including the right to vote, the right after six months to obtain a divorce, the right after one year to attend any state university as a resident student, and the right to protect their homestead under all the remaining homestead provisions of our constitution. They are in fact bona fide residents for all purposes except the enhanced homestead exemption.

We fully realize that tax exemptions and disparity in taxes are not totally prohibited. See, e.g., Shevin v. Kahn, 273 So.2d 72 (Fla.1973), aff’d, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). However, there must be at least a rational basis for disparities to exist. None of the four bases argued by the state and expressed in Speaker Haben’s affidavit meets the rational basis test. First, it is constitutionally prohibited for this state to impose different taxes on its citizens based solely on their length of permanent residence in the state. Second, it is not a legitimate state purpose to reward certain citizens for past contributions to the detriment of other citizens. Third, we find five years is an unreasonable period of time to establish bona fide residency and is unnecessary to discourage fraudulent homestead exemption applications. Fourth, the avoidance of possible or excessive immigration of individuals to this state is clearly not constitutionally permissible. Finally, the conditional language in article VII, section 6(d), Florida Constitution, does not in our opinion give the legislature blanket authority to violate the equal protection clause of Florida’s constitution.

We find that that portion of section 196.031(3)(e) which states “for the 5 consecutive years prior to claiming the exemption under this subsection” must be excised from the statute as unconstitutional, and hold that all permanent residents are entitled to the $25,000 homestead exemption provided in article VII, section 6(d), Florida Constitution. The purpose of this statutory provision is to properly implement article VII, section 6, Florida Constitution, and the remaining portions of that statute, after the noted phrases have been excised, properly implement the constitutional provision.

Our decision in this case is prospective only for the taxable year commencing January 1, 1983, except for those taxpayers who have timely judicially challenged the applicability of the residence requirement. Because the enhanced tax exemption for residents of less than five years has been denied in good faith reliance on a presumptively valid statute, we find that the taxpayers, other than those who challenged the statute, who were denied the enhanced exemption are not entitled to a refund. See Gulesian v. Dade County School Board, 281 So.2d 325 (Fla.1973). The petitioners in this case, however, are entitled to a refund of the amount of additional taxes they paid by reason of the denial of the enhanced exemption, as are any other litigants who have timely judicially challenged the statute.

We recognize this decision will have a significant impact upon local governmental entities, but the constitutional provision which contains the $25,000 enhanced homestead exemption does not authorize one category of residents of this state to be favored over another category of residents. The reason for the equal protection clause was to assure that there would be no second class citizens. To approve the validity of the statute would in reality establish a second class of citizens in Florida. We hold that section 196.031(3)(e), Florida Statutes (Supp.1980), is unconstitutional to the extent that it prohibits residents of less than five years residency from receiving the enhanced exemption. Accordingly, the decision of the district court is quashed and this case is remanded for further proceedings to determine the amount of the refund petitioners are entitled to receive. The petitioners’ application for attorney’s fees was not properly or timely filed, and it is denied.

It- is so ordered.

BOYD, MCDONALD and EHRLICH, JJ., concur.

ALDERMAN, C.J., dissents with an opinion, with which ADKINS, J., concurs.

ALDERMAN, Chief Justice,

dissenting.

I disagree with the majority’s holding that section 196.031(3)(e), Florida Statutes (Supp.1980), violates the equal protection clause of the Florida Constitution because it fails to meet the rational basis test.

In my view, the district court properly determined that in evaluating petitioners’ claims of unconstitutionality, the rational basis test, rather than the strict scrutiny test, was the appropriate test to be applied. The parameters of this test were recently restated in In re Estate of Greenberg, 390 So.2d 40, 42 (Fla.1980), wherein this Court said:

The rational basis or minimum scrutiny test generally employed in equal protection analysis requires only that a statute bear some reasonable relationship to a legitimate state purpose. That the statute may result incidentally in some inequality or that it is not drawn with mathematical precision will not result in its invalidity. Rather, the statutory classification to be held unconstitutionally viola-tive of the equal protection clause under this test must cause different treatments so disparate as relates to the difference in classification so as to be wholly arbitrary. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660 (1954).

The Fifth District held that among the bases for this enactment was the desire that new residents help offset their immediate fiscal impact upon local governments’ capital outlay, while affording long-term residents the increased exemption made possible by their tax dollars. I agree with the district court’s conclusion that since this homestead exemption applies to real property taxes and since such property taxes inure only to the benefit of local government, this would be a rational basis upon which the state could base the durational residence requirement.

Further, although the majority emphasizes several times in its opinion that it is resolving this case solely on the basis of the state constitutional grounds, it states that Zobel v. Williams,-U.S.-, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982), is important to the constitutional issues involved in this case. Zobel, however, is inapposite to the present case since the statute held unconstitutionally violative of the equal protection clause by the Supreme Court in Zobel is distinctly different from the Florida homestead exemption statute. Unlike the Alaska statute, the Florida homestead exemption statute does bear a rational relationship to a legitimate state interest. The district court found that the questioned statute met the rational basis test, and I would approve its decision.

I would also approve the Fifth District’s negative response to its second certified question of whether section 196.031(3)(e) violates article VII, section 6, Florida Constitution. It correctly decided that subsection (d) of this constitutional provision granted the legislature the authority to make entitlement to the increased exemption conditional upon the satisfaction of certain criteria.

ADKINS, J., concurs.

ON REHEARING

OVERTON, Justice.

A petition for rehearing and clarification has been filed by the petitioner Osterndorf, requesting that since this Court declared section 196.031(3)(e), Florida Statutes (Supp.1980), unconstitutional, we should also address the constitutionality of the du-rational residency requirements of section 196.031(3)(a), (b), and (d), so as not to leave the validity of these requirements open to conjecture. In response, the respondents Turner and the Department of Revenue have advised this Court that they

have no objection for this Court to address all of the durational residency requirements found in § 196.031, F.S., in the same manner. Respondents would take the same position on all the five-year durational residency requirements found in § 196.031, F.S.
... A uniform ruling on all the dura-tional residency requirements found in § 196.031, F.S., would avoid a great deal of administrative confusion and unnecessary litigation and multiplicity of suits.

The respondents have also filed a petition for rehearing, supported by a memorandum submitted by counsel for the house of representatives, asking this Court to recede from its announced opinion and declare the five-year durational residency requirements constitutional.

Although the petitioner’s pleadings filed in the trial court requested that sections 196.031(3)(d) and (3)(e) be declared unconstitutional, the trial court’s order granting summary judgment to the tax collector stated that “[t]he issue before the Court is the constitutionality of section 196.03(3)(e) [sic] ...v and failed to mention subsection (3)(d) in the judgment upholding the constitutionality of (3)(e). Similarly, the opinion rendered by the district court of appeal in affirming the trial court action stated that the appeal was “from a final order of the trial court upholding the constitutionality of section 196.031(3)(e) .... ” Osterndorf v. Turner, 411 So.2d 330, 331 (Fla. 5th DCA 1982). The questions certified to this Court by the district court only mentioned subsection (3)(e). Neither the order of the trial court nor the opinion of the district court referred to subsection (3)(d) or the other subsections creating durational residency requirements. Subsection (3)(d) was, however, clearly placed in issue by the petitioner’s pleadings.

Counsel for the parties should have brought to the trial court’s attention that subsection (3)(d) was in issue and that it should have been considered in the trial court’s order, rather than waiting until now to seek review of this subsection when the case is almost through the appellate process. Because of the parties’ joint request and the fact that subsection (3)(d) was an issue below, we agree to address the constitutionality of the five-year residency requirement for the $25,000 exemption for school district taxes set out in section 196.031(3)(d). We also agree to address this part of the statute because the wording of subsection (3)(d) and its related constitutional provision is identical to subsection (3)(e) and its related constitutional provision. There is absolutely no basis for distinguishing subsection (3)(d) from subsection (3)(e).

The $25,000 exemption for school district taxes is contained in and mandated by the Florida Constitution, article VII, section 6(d), which states that “the exemption shall be increased to a total of ... twenty-five thousand dollars ....’’ (Emphasis added.) The legislature then by statute established the five-year residency requirement. Because subsection (3)(d) is indistinguishable from subsection (3)(e), we hold subsection (3)(d) unconstitutional for the same reasons expressed in our previously rendered majority opinion in this case.

We decline, however, the parties’ requests that we also consider the constitutionality of subsections (3)(a) and (3)(b). Subsection (3)(a) concerns homestead tax exemptions for persons sixty-five years of age or older, and subsection (3)(b) concerns the exemption available to disabled persons. Although these subsections also have a five-year residency requirement, the phraseology of the constitutional provision on which they are based is different from the provision on which subsections (3)(d) and (3)(e) are based. Further, and as important, the petitioner has never claimed to be entitled to the exemptions provided in subsections (3)(a) and (3)(b) and did not raise the issue of the constitutionality of these subsections in the trial court. This Court clearly has no jurisdiction to pass on the constitutionality of these subsections under these circumstances. In effect, the parties are asking this Court to render an advisory opinion with regard to these parts of the statute. This Court has no authority to render advisory opinions in this case and the constitutionality of subsections (3)(a) and (3)(b) can only be addressed when presented by real parties in interest. We realize it would be administratively beneficial for this Court to pass on all the durational residency requirements of section 196.031(3), but we have no authority to do so under these circumstances. If the parties wanted this Court to consider, all the durational residency requirements, they should have placed these matters in issue in the trial court.

For the reasons expressed, we clarify our opinion by also holding section 196.031(3)(d) unconstitutional. We decline, however, to consider the constitutionality of subsections (3)(a) and (3)(b) in this action because they are not appropriately before us. We further deny the respondents’ petition for rehearing.

It is so ordered.

BOYD, McDonald and EHRLICH, JJ., concur.

ALDERMAN, C.J., concurs in part and dissents in part with an opinion.

ADKINS, J., dissents.

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

I concur with that portion of the opinion on rehearing which states that because of the parties’ joint request and the fact that section 196.031(3)(d), Florida Statutes (Supp.1980), was an issue below, we will address the constitutionality of subsection (3)(d). I also agree that we cannot, in these proceedings, resolve the question of the constitutionality of subsections (3)(a) and (3)(b).

I dissent, however, from the majority’s holding that subsection (3)(d) is unconstitutional. For the same reasons I expressed in my dissent to the previous opinion, I would find subsection (3)(d) constitutional.

      . Proposition 13 is an amendment to the California Constitution which restricts the amount of any ad valorem tax to one percent of the full cash value of property. For a more complete explanation of Proposition 13, see Lefcoe and Allison, The Legal Aspects of Proposition 13: The Amador Valley Case, 53 S.Cal.L.Rev. 173 (1979).

      . Article VII, section 6(c), Florida Constitution, reads as follows:
      By general law and subject to conditions specified therein, the exemption shall be increased to a total of twenty-five thousand dollars of the assessed value of the real estate for each school district levy. By general law and subject to conditions specified therein, the exemption for all other levies may be increased up to an amount not exceeding ten thousand dollars of the assessed value of the real estate if the owner has attained age sixty-five or is totally and permanently disabled and if the owner is not entitled to the exemption provided in subsection (d).

      .Article VII, section 6(d), Florida Constitution, reads as follows:
      By general law and subject to conditions specified therein, the exemption shall be increased to a total of the following amounts of assessed value of real estate for each levy other than those of school districts: fifteen thousand dollars with respect to 1980 assessments; twenty thousand dollars with respect to 1981 assessments; twenty-five thousand dollars with respect to assessments for 1982 and each year thereafter. However, such increase shall not apply with respect to any assessment roll until such roll is first determined to be in compliance with the provisions of section 4 by a state agency designated by general law. This subsection shall stand repealed on the effective date of any amendment to section 4 which provides for the assessment of homestead property at a specified percentage of its just value.

      . In the instant case, only the constitutionality of section 196.031(3)(e) is considered. Section 196.031(3)(d) was not raised in the trial court, nor was it considered by the district court. Subsection (3)(d) has been held unconstitutional in a recent circuit court action, Winicki v. Mallard, No. 82-35-CA (Fla. 4th Cir.Ct. Sept. 29, 1982).

      . Article I, section 2, of the Florida Constitution, reads as follows:

        Basic rights. — All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion or physical handicap.

      . According to article VII, section 6(c), Florida Constitution, “the exemption for all other levies way be increased up to an amount not exceeding ten thousand dollars of the assessed value of the real estate if the owner has attained age sixty-five or is totally and permanently disabled and if the owner is not entitled to the exemption provided in subsection (d).” (Emphasis added.)


author: PER CURIAM.

text:
    William MIDDLETON, Appellant, v. STATE of Florida, Appellee.
    No. 60021.
    Supreme Court of Florida.
    Dec. 22, 1982.
    Rehearing Denied March 2, 1983.

      John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

This case is on appeal from a circuit court judgment. Appellant was convicted of first-degree murder, grand theft, and unlawful use of a firearm in the commission of a felony. The circuit court sentenced appellant to death for the crime of first-degree murder. We have jurisdiction of the appeal. Art. V, § 3(b)(1), Fla. Const.

On February 16,1980, a citizen called the police and reported that her friend Gladys Johnson had not been seen for two days, that her car was missing and her house was completely closed and locked. Police officers broke into the house and found the body of Gladys Johnson. She had been shot in the back of the head with a shotgun. The murder weapon was found in the house.

On February 17, appellant William Middleton was arrested in New York City on suspicion of “jostling,” that is, being a pickpocket. The main evidence of appellant’s guilt was a confession he made in New York to an assistant district attorney of that state. The attorney who conducted the interview and the stenographer who wrote down appellant’s statement testified at the trial.

Gladys Johnson was the mother of a man whom appellant had met in prison. When appellant was released on parole on December 28, 1979, he went to live with Gladys Johnson in the Miami area. Mrs. Johnson offered appellant a home because he had nowhere else to go. On February 14, 1980, they had an argument because Mrs. Johnson would not allow appellant to use her car. That evening, when she went to sleep on the living room sofa, he took her shotgun and sat with it across his lap for about an hour, contemplating killing her. When she awoke, he shot her in the back of the head. He locked the house and left in her car. That night, he drove to Tampa. The next day he returned to Miami, left the car at a bus station, and boarded a bus for New York City, taking Mrs. Johnson’s two pistols with him. He sold the guns in New York.

The manager of the Greyhound Bus station in North Miami Beach testified that he reported the presence of a car that apparently had been abandoned on his lot. This car was identified as belonging to Gladys Johnson. The keys to the locks on the front door of her house were found in the car.

Appellant contends that there was insufficient proof of premeditation to support the verdict of guilty of first-degree murder. This argument is based on part of appellant’s confession in which he said that the shooting was a “snap decision.” The confession also said, however, that appellant sat for an hour thinking about killing Mrs. Johnson. In either event, that the decision was made at all is sufficient to prove premeditation. Proof of the element of premeditation does not require that thought or reflection of any specific minimum duration be shown. Songer v. State, 322 So.2d 481 (Fla.1975), vacated on other grounds, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

Appellant contends that there was insufficient evidence to support the verdict on the grand theft charge. The charge was based on appellant’s taking of the victim’s car and two pistols. It was proven by competent, substantial evidence.

Appellant’s main point on appeal concerns his confession and the manner in which it was introduced at trial. Appellant argues that the trial court erred in allowing the stenographer from New York to read the confession into the record. Appellant argues that because he never saw, signed, or acknowledged the transcription of his statement, it was not properly authenticated. He cites Marshall v. State, 339 So.2d 723 (Fla. 1st DCA 1976), cert. dismissed, 354 So.2d 982 (Fla.1977), and Williams v. State, 185 So.2d 718 (Fla. 3d DCA 1966), for the proposition that a transcription of a defendant’s oral statements is not admissible in evidence as a written confession unless it is signed or otherwise acknowledged by the defendant. See Annot., 23 A.L.R.2d 919 (1952). Appellant argues that this rule should apply to the reading of a transcription of a defendant’s oral statements since this Court said in Haines v. State, 158 Fla. 9, 27 So.2d 414 (1946), that reading a defendant’s statement to the jury is equivalent to introducing the written document into evidence.

The state responds by arguing that the stenographer was allowed to read his notes to refresh his memory. Although we do not agree that the evidentiary doctrine pertaining to refreshing the memory justifies what was done at trial, we find that the doctrine of “past recollection recorded” does. There is a difference:

There is a clear and obvious distinction between the use of a memorandum for the purpose of stimulating the memory and its use as a basis for testimony regarding transactions as to which there is no independent recollection. In the former case it is immaterial what constitutes the spur to memory, as the testimony, when given, rests solely upon the independent recollection of the witness. In the latter case the memorandum furnishes no mental stimulus, and the testimony of a witness by reference thereto derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection. It is for that reason that a memorandum, to be available in such cases, must have been made at or about the time of the happening of the transaction, so that it may safely be assumed that the recollection was then sufficiently fresh to correctly express it.

Volusia County Bank v. Bigelow, 45 Fla. 638, 646, 33 So. 704, 706 (1903); See also Great Atlantic & Pacific Tea Co. v. Nobles, 202 So.2d 603 (Fla. 1st DCA 1967), cert. denied, 210 So.2d 225 (Fla.1968); King v. Califano, 183 So.2d 719 (Fla. 1st DCA 1966). We conclude that the stenographer’s testimony was proper not based on the theory of refreshed memory, but rather on the theory that his transcription was a recording of the statement he heard. Section 90.803(5), Florida Statutes (1979), provides:

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(5) RECORDED RECOLLECTION. —A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

The stenographer testified that he had no independent recollection of appellant’s confession, but that he had personally recorded the statement verbatim and had accurately transcribed his notes into the written statement which he then read to the jury. We hold that the stenographer’s testimony was admissible as a “past recollection recorded.”

Appellant argues that the stenographer should not have been allowed to testify because he was not able to identify appellant as the person whose statement he recorded. However, the New York County assistant district attorney who testified at trial identified appellant, testified that he confessed to her, and provided the link between appellant and the stenographer’s written transcript. It was this attorney who conducted the interview, and she identified appellant as the person whose confession was recorded by the stenographer. The attorney’s testimony by itself was sufficient evidence to prove the confession; the stenographer’s reading of the transcript merely provided the details with its verbatim account.

Next appellant argues that it was error for the trial court, over his objection, to instruct the jury on the doctrine of felony murder. Appellant says that since there was no evidence to support such a charge, the instruction should not have been given. The indictment in this case charged that appellant committed first-degree murder by shooting the victim either from a premeditated design to effect her death or while in the perpetration of robbery. It has long been held that a first-degree murder indictment alleging premeditation is sufficient even though the state proceeds on alternative theories and the proof at trial supports conviction on the felony murder theory. Knight v. State, 338 So.2d 201 (Fla.1976). It is also proper to allege the alternative methods of committing the crime where the state anticipates that there will be some evidence of felony murder. Here there was evidence that appellant took the victim’s car keys and pistols and drove away in her car after shooting her. Since there was some evidence of robbery to support the alternative allegation of a killing in the perpetration of robbery, it was proper for the trial court to instruct the jury on felony murder.

We come now to the question of the sentence of death. Appellant challenges the constitutionality of the capital felony sentencing law on the grounds that the aggravating circumstances are vague and overbroad, that there is no compelling state interest in imposing capital punishment, that the law precludes consideration of mitigating factors, and that it has been arbitrarily and capriciously applied. These arguments have previously been disposed of by the decisions in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Fleming v. State, 374 So.2d 954 (Fla.1979); Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979); and State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974).

The trial court found that appellant had previously been convicted of a felony involving the use or threat of violence, that at the time of the murder he was under a sentence of imprisonment, that the murder was committed for pecuniary gain, that it was especially heinous, atrocious, or cruel, and that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. Appellant challenges the latter three of the above-listed aggravating circumstances.

The finding that the murder was committed for pecuniary gain was supported by the fact that appellant stole the victim’s car and pistols. That there was some evidence of anger on appellant’s part toward the victim did not preclude the finding of a pecuniary motive.

Appellant argues that the finding that the murder was especially heinous, atrocious, or cruel is not supported by the evidence. We agree. Although the deliberate murder of Mrs. Johnson was unquestionably atrocious as that word is understood in common parlance, the words of this aggravating circumstance have become legal words of art. The killing itself was not “accompanied by such additional acts as to set the crime apart from the norm” of deliberate killings. State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). The evidence shows that the victim instantly died from a shotgun blast to the back of her head from close range. She had just awakened from a nap, was facing away from appellant, and had no awareness that she was going to be shot. See Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981).

The trial court was correct, however, in finding that the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. Appellant’s confession said that he sat with the shotgun in his hands for an hour, looking at the victim as she slept and thinking about killing her. This is clearly the kind of intentional killing this aggravating circumstance was intended to apply to. The cold-blooded calculation of the murder went beyond mere premeditation. See Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). The shocking thing about this murder is that the only thing the victim ever did to the appellant, so far as the record indicates, was to show him extraordinary kindness and generosity.

Appellant contends that the trial court erred in finding no mitigating circumstances. Specifically he argues that the judge should have found and considered the fact that appellant was operating under the influence of extreme emotional disturbance. He says that he was under great stress as the aftermath of his prison experience, that the tension built up, and that he lost his temper and directed his anger towards the victim. The evidence to support this position is not clear enough to enable us to hold that the trial judge erred in declining to find the existence of such mitigating factors. In addition, the jury’s recommendation of a sentence of death is a strong indication that it did not find appellant’s emotional state particularly compelling as a mitigating circumstance.

Even though we have disapproved one of the aggravating circumstances found by the trial court, there remain several other aggravating circumstances supported by evidence — appellant had previously been convicted of a violent felony, was on parole from a prison sentence, had a pecuniary motive, and murdered the victim in a cold, calculated, and premeditated manner. The jury recommended death and the judge found no mitigating circumstances. With the case in this posture, we conclude that the trial court’s sentence is appropriate.

The convictions and the sentence of death are affirmed.

It is so ordered.

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

      . There was a pre-trial hearing on the admissibility of appellant’s confession. Two officers of the New York City Transit Police testified concerning appellant’s arrest and initial questioning. One of the officers said that when appellant was arrested, he spontaneously began to deny knowledge of the murder of a woman in Florida. The other officer said that appellant’s companion, who was arrested at the same time, mentioned the possibility of appellant being wanted for a crime in Florida. Both officers testified that appellant was warned of his rights, did not ask that questioning cease, and did not ask to see an attorney. The statement testified to at trial was not made to the officers, but was made later that day in response to questioning by the assistant district attorney, who testified at trial. Appellant testified at trial that when he was arrested the officers told him he was wanted on suspicion of murder in Florida and that he falsely confessed because he was led to believe this was the only way he would avoid the death penalty. On this appeal, however, appellant does not contend that his confession was coerced or that the interrogation violated his constitutional rights.

      . Other jurisdictions are in accord. See, e.g., Jordan v. People, 151 Colo. 133, 376 P.2d 699 (1962), cert. denied, 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 698 (1963); State v. Rosa, 170 Conn. 417, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed.2d 116 (1976); Hall v. State, 223 Md. 158, 162 A.2d 751 (1960); State v. Bindhammer, 44 N.J. 372, 209 A.2d 124 (1965); Lay v. State, 461 P.2d 1021 (Okl.Crim.App.1969). Still other jurisdictions have reached the same result, without referring to the doctrine as “past recollection recorded,” by holding that a written statement of a defendant’s oral confession is admissible if a person who was present at the confession can verify its accuracy. See Ellenburg v. State, 353 So.2d 810 (Ala.Crim.App.1977); People v. Thompson, 133 Cal.App.2d 4, 284 P.2d 39 (Dist.Ct.App.1955); Freeman v. State, 230 Ga. 85, 195 S.E.2d 416 (1973); People v. Perkins, 17 Ill.2d 493, 162 N.E.2d 385 (1959); State v. Dierlamm, 189 La. 544, 180 So. 135 (1938); Craft v. State, 380 So.2d 251 (Miss.1980); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); 2 H. Underhill, Criminal Evidence, § 404 (5th ed. Interim Supp. 1979); 3 C. Torcia, Wharton’s Criminal Evidence, § 666 (13th ed. 1973).


text:
    THE FLORIDA BAR. In re Anthony V. PACE, Jr.
    No. 62455.
    Supreme Court of Florida.
    Dec. 22, 1982.
    Rehearing Denied March 3, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Michael D. Powell, Asst. Staff Counsel and William J. Zloch, Bar Counsel, Fort Lauderdale, for The Florida Bar, complainant.
    Dean Bunch of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Resignation Pending Disciplinary Proceedings Pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

As grounds for the requested relief, Respondent’s petition sets forth the following facts:

1. That the Petitioner was admitted to practice Law in the State of Florida in June, 1965.
2. That during the interim since his admission to practice, approximately five complaints were filed against him, on which the Grievance Committees found “no probable cause.”
3. That there presently is pending against him one disciplinary proceeding in two counts: a) that he improperly solicited legal business, and b) that he testified falsely regarding the time certain time slips were written.
a. That the Referee has found the Petitioner guilty on both counts.
b. That The Florida Bar is presently prosecuting an appeal to the penalty recommended by the Referee in the Florida Supreme Court.
4. That the only criminal proceeding ever filed against the Petitioner was for solicitation of legal business on the same charge that is pending in the instant proceeding. That he was found “guilty”, and sentenced t6, and served sixty days of Community Service along with a $500.00 fine.
5.That the Petitioner believes it to be in the best interest of The Florida Bar, the public, and himself that he voluntarily resign from The Florida Bar.

The Florida Bar having now filed its response opposing the Petition for Resignation unless such is without leave to reapply, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign is hereby approved and respondent is granted leave to resign with the right to apply for reinstatement.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.