text:
    Willie Lee CARTHON, Alias Willie Lee Pryor v. STATE.
    4 Div. 978.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.

      J. Allen Cook, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

On August 13, 1981, the appellant, Willie Lee Carthon, alias Willie Lee Pryor, was indicted by the Grand Jury of Covington County for assault in the first degree in violation of Section 13A-6-20(a)(l) of the Code Of Alabama. On September 16, 1981 counsel was duly appointed by the court to represent the appellant. On October 19, 1981 the appellant was duly arraigned, and entered a plea of not guilty. On November 5, 1981 demurrers were filed to the indictment. On November 17, 1981, after a jury trial, the jury found the appellant guilty as charged, and he was duly sentenced to be imprisoned in the penitentiary for a period of 10 years, notice of appeal to this Court was given, and bond was set for the appellant. A free copy of the transcript and record in this cause, and counsel to represent the appellant, was ordered by the trial court. On December 9, 1981 appellant filed a motion for a new trial. The motion was set for a hearing on December 18,1981, and notice given to the district attorney and appellant’s attorney. After a hearing on the motion for a new trial, all parties being present, and given an opportunity to submit evidence, the motion was overruled by the court.

The appellant was represented at all proceedings in the trial court, and is in this Court, by counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief that “we are not narrating the entire testimony since we are alleging certain specific errors, and not claiming that the affirmative charge was due. In fact, we did not ask for the general affirmative charge.” The appellant argues in his brief four reasons why he should be granted a new trial. First, the court erred to the prejudice of the appellant when it denied his petition for youthful offender treatment when the defendant was 15 years of age when the alleged offense occurred. Second, the court erred by overruling appellant’s demurrer to the indictment when it charged the appellant used a, “deadly weapon instrument” alleged to be a kitchen knife. Third, the court erred to the prejudice of the appellant when it allowed into evidence a voluntary statement of the appellant made to an officer when the appellant was 15 years of age, and in the custody of the sheriff, and an attorney representing appellant was not present, concerning his wounding the prose-cutrix, “I didn’t mean to hurt her.” Fourth, that the court erred when it overruled appellant’s motion for a new trial on the grounds that the appellant’s insanity should be inquired into.

Appellant contends in his brief that the trial court denied appellant’s petition for youthful offender treatment without any type of a hearing; that the court’s ruling was based exclusively on the report of the probation officer. The record in this case shows that the petition was filed on September 16, 1981, and an order made by the court that the probation officer make an investigation, and the petition was set to be heard before the court on October 19, 1981 at 9:00 o’clock, A.M., at which time the appellant was present, his counsel was present, and the hearing was had, and the court denied the petition, and ordered that the appellant be tried as an adult under the general laws of the State of Alabama. At this time there was before the court the report of the probation officer. The proceedings in the juvenile court are included in the record. The appellant was afforded, at the time of the hearing on the petition for youthful offender treatment, an opportunity to offer evidence in his behalf.

We quote from the case of Morgan v. State, Ala.Cr.App. 363 So.2d 1013, where Judge Bowen said:

“The Youthful Offender Act vests in the trial judge almost absolute discretion to grant or deny youthful offender status after making an appropriate investigation. McClendon v. State, 341 So.2d 174 (Ala.Cr.App.1976); Section 15-19-1, Code of Alabama 1975. This act does not require a full, formal hearing or an investigation by a probation officer in every case. Clemmons v. State, 294 Ala. 746, 749, 321 So.2d 238 (1975). While we have no indication of why youthful offender status was denied in this case, the trial judge is not required to state his reasons for denying youthful offender status. This court will not overturn that exercise of discretion except where it affirmatively appears that the decision of the trial judge was arbitrary or made without some examination or investigation of the youthful offender. Watkins v. State, 357 So.2d 156 (Ala.Cr.App.), cert. denied, 357 So.2d 161 (Ala.1977). It is not for this court to overturn the decision of the trial judge in denying youthful offender status simply because we would not have made that same decision.’’

We find nothing in the record of this case indicating that the decision of the trial judge was arbitrary, or that there was an abuse of his discretion. Morgan v. State, supra; Prince v. State, Ala.Cr.App. 392 So.2d 853; Certiorari Denied, Ala. 392 So.2d 857; Code Of Alabama, 1975, Sec. 15-19-1.

The appellant’s second contention in his brief is that the trial court erred to his prejudice when it overruled his demurrer to the indictment. The appellant was indicted on August 13, 1981, arrested on August 17, 1981, released on bond August 19, 1981, counsel was appointed to represent the appellant on September 16, 1981, and a petition for youthful offender treatment was filed. On October 19, 1981, after a hearing on the petition, it was denied, and the appellant entered a plea of not guilty. On November 5, 1981 appellant filed a demurrer to the indictment, and the demurrer was overruled. The indictment charges, as follows:

“Willie Lee Carthon, Alias Willie Lee Pryor, whose name is unknown to the grand jury other than as stated, did with intent to cause serious physical injury to another person, caused serious physical injury to Velma Pryor by means of a deadly weapon, instrument, to-wit, a kitchen knife in violation of Section 13A-6-20 of the Code of Alabama.”

The indictment is sufficient to sustain a jury verdict finding the appellant guilty of assault in the first degree in violation of Sec. 13A-6-20(a)(l) of the Code of Alabama.

A demurrer to an indictment should be filed before a plea of not guilty is entered, unless the court grants the defendant the right to do otherwise. Appellant’s demurrer having been filed 17 days after his plea of not guilty had been made, we hold that the trial court did not err in overruling appellant’s demurrer. Edwards v. State, Ala.Cr.App. 379 So.2d 336; Certiorari Denied, Ala. 379 So.2d 339; Flowers v. State, Ala.Cr.App. 402 So.2d 1088; Certiorari Denied, Ala. 402 So.2d 1094; Pinkard v. State, Ala.Cr.App. 405 So.2d 411.

Appellant’s third contention in his brief is that the trial court erred when it allowed into evidence a statement of the appellant made to Officer Treadaway, when the appellant was 15 years of age, and in the custody of the sheriff, and an attorney representing appellant was not present, concerning the appellant wounding the prosecutrix. We quote from the record on a voir dire examination out of the presence and hearing of the jury.

“BY MR. LANIER:
“Q. Would you describe to the Court, the circumstances surrounding this statement? Where was Willie Carthon?
“A. Willie Lee Carthon was located in the cell in the back, in the ladies’ cell. “Q. By himself?
“A. By himself.
“Q. And, what did you do?
“A. What I did when I came into work, Sergeant Williamson told me that they had arrested a subject by the name of Willie Lee Carthon. I said, is that the same Willie Lee that I know? And he said, well, I am not for sure. So, I said, let me see if it is the same one. So, I got the jail key and went back to open the cell door, which is a big door, and when I opened it, I saw Willie Lee. He saw me and he said, I didn’t mean to hurt her. I closed the door to, locked it back and went back.
“Q. Okay. Did you ask him anything or say anything to him before you—
“A. No, sir.
“Q. He just responded to you before you had an opportunity to say anything?
“A. That’s right.
“Q. Never asked him any questions?
“A. No, sir.
“Q. That’s all.
“THE COURT: You want to ask him anything?
“MR. COOK: We want to move to exclude the statement because it is not inculpatory. It is not in the nature of a confession or anything because it would have no bearing on how the incident occurred.
“THE COURT: I will admit it.
“MR. COOK: We except.
“(Whereupon, Court was resumed back in the presence of the jury with all parties and counsel present.)
“THE COURT: You gentlemen may proceed.
“(Whereupon, the continued examination of Billy Treadaway was continued.)
“CONTINUED DIRECT EXAMINATION
“BY MR. LANIER:
“Q. Mr. Treadaway, the day after this incident occurred in Barton Quarters, did you have an occasion to see Willie Lee Carthon?
“A. Yes, I did.
“Q. Would you describe where Willie Lee Carthon was at the time?
A. He was located in the back where we lock the prisoners up and he was located inside the cell where we normally lock white people or females up.
“Q. What day was this?
“A. I believe it was on June the tenth.
“Q. In relation to the incident, that is the next day?
“A. The next day.
“Q. The next morning?
“A. Yes, sir.
“Q. What did you do?
“A. I went back. Sergeant Williamson had told me that he had picked up a subject and his name was Willie Lee Carthon and I asked him was it the same subject that we had dealings with or I had dealings with before. He said he didn’t know for sure. So, I got the jail key, went back, opened the big door that goes into the cell, and I opened the door. Willie Lee was in there by himself and when he saw me he said, I didn’t mean to hurt her. So, I closed the door, locked it back and went back up front.
“Q. Did you have an opportunity just prior to that to say anything to Willie Lee?
“A. I didn’t say anything.
“Q. You didn’t ask him any questions?
“A. No, sir.
“Q. And he responded without you having an opportunity to say anything, is that correct?
“A. Yes, sir. That’s correct.
“MR. LANIER: No other questions.”

The appellant cites the case of Watts v. State, Ala.Cr.App. 361 So.2d 1200 decided by this Court on August 29, 1978 correctly holding that it was reversible error to allow into evidence a voluntary confession of a child, when he did not have counsel present at the time the confession was obtained, and that it is irrelevant that the appellant’s confession was voluntarily made, citing Section 12-15-67, Code Of Alabama, 1975.

The offense charged in the indictment occurred on June 9, 1981. The voluntary statement made by the minor in this case was made on June 10,1981, and the trial of this case was conducted on November 17, 1981. Since the case of Watts v. State, supra, the Legislature of Alabama enacted into law an act to repeal section 12-15-67 of the Code of Alabama, 1975. This act provides:

“Acts Of Alabama, Regular Session, 1981, Vol. 1, Page 500. Act No. 81-344. Section 1. Section 12-15-67 of the Code of Alabama 1975 is hereby expressly repealed. Section 2. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law. Approved April 29, 1981. Time 11:00 A.M.”

We hold that the trial court did not err to the prejudice of the appellant when it allowed into evidence the voluntary statement made by the appellant to Officer Treadaway.

The fourth contention in appellant’s brief is that the trial court erred to his prejudice in overruling appellant’s motion for a new trial on the ground that the appellant’s insanity should be inquired into. In effect that the verdict of the jury and sentence of the court should be set aside, and the appellant granted a new trial to present the defense of insanity.

On the motion for a new trial, counsel who represented the appellant at his trial before the jury was called as a witness by appellant, and testified, in substance: That while the jury was out considering its verdict the appellant talked with his counsel, and this led counsel to believe that the appellant was simply unable to act as an adult in any way in discussing his case with counsel. That counsel assumed that the appellant’s mental condition was such that he is sick, or incompetent, and in counsel’s opinion that somehow, some way, a different arrangement should be worked around to where that fact could be clearly presented to the jury, and that is my testimony about it.

That appellant’s counsel was appointed about September 16,1981, and the trial was held November 17, 1981.

Appellant’s mother, a witness called by the appellant, testified, in substance: That appellant was 15 years old when the stabbing took place, and is now 16 years of age. That he was expelled from school when he was in the ninth grade, that appellant can hold down a job, he can work, that he sniffed gasoline, that she had not had him at the Mental Health Office, but that Mr. Underwood had interviewed him, but did not give him any kind of medicine, that Underwood told her appellant was really kind of sick.

Mr. William D. Underwood, a witness called by the appellant, testified, in substance, as follows: That he is a Mental Health Counselor with the Mental Health Department in Andalusia. That he has an undergraduate degree in Clinical Psychology, and a master’s level degree in Clinical Psychology. That he has been in mental health field for about seven years. That under certain circumstances he would be able to ascertain, after counseling with an individual, whether or not they were likely to have mental diseases, or mental retardation, or deficiencies of one kind or another. That he had consulted with the appellant on three occasions at the request of Roger Powell, the probation officer. That he consulted some with the appellant’s mother about the appellant. Whereupon, appellant’s counsel asked Mr. Underwood, “Well, from your dialogue with him there, and background information that you obtained, were you able to form any opinion as to his mental condition, with reference to mental sickness, and any competency, or anything of that kind? Abnormality?” The state’s counsel objected to the question, and the court sustained the objection, and counsel for appellant stated that, “We are going to except to the court’s ruling there, and we are going to offer to show that first of all, that he was different, and second, that it was of such a nature that it would not show up readily to an attorney that was trying to carry on conversations with him and so forth.”

Code Of Alabama, 1975, Section 15-16-1 provides that when the defense of insanity is set up in any criminal prosecution, it must be by special plea, interposed at the time of arraignment and entered of record upon the docket of the court, which, in substance, shall be “not guilty by reason of insanity.” A plea of insanity shall not preclude the usual plea of the general issue, which shall not, however, put in issue the question of the irresponsibility of the accused by reason of his alleged insanity, this question being triable only under the special plea.

The record in this case is that the appellant was arraigned in open court on October 19,1981, and duly entered a plea of not guilty. No plea of insanity was ever entered by the appellant. The trial was held on November 17, 1981. At no time before or during the trial was the matter of the appellant’s mental condition at the time of the trial or the alleged criminal act brought before the trial court, nor was any evidence of the mental state of the appellant presented to the jury or court. Appellant contends in his motion for a new trial that the condition of the appellant’s mind was of such a nature that it would not show up readily to an attorney trying the case.

The appellant testified in his own behalf during his trial in the lower court, and admitted that on the occasion of the alleged assault on his grandmother that he went to her house and insulted her; that he saw a knife lying on the porch, and he got it, and started cutting her; that she did not say anything to him; that she was drunk; that she fell on the floor, and he stabbed her while she was on the floor; that the knife he stabbed her with was like a steak knife. On cross-examination he testified, in substance, that he knew he was not supposed to stab her; that it is wrong, and that he knew why he was in court today.

Code Of Alabama, 1975, Section 15-16-1 provides that a plea of insanity must be by a special plea, interposed at the time of arraignment and entered of record upon the docket of the court, which, in substance shall be “not guilty by reason of insanity.” This Court, the Supreme Court Of Alabama, and the Supreme Court Of The United States, has held that the defense of insanity may not be available to one where he has, at the time of arraignment, entered a plea of not guilty, and later requests the trial court to allow him to enter a plea of not guilty by reason of insanity, unless the trial court, in its discretion, allows the plea of insanity to be entered.

We hold that under the facts shown in this record the trial court did not abuse its discretion in overruling appellant’s motion to set aside the verdict of the jury and sentence of the court, and grant appellant a new trial so that he could present the defense of not guilty by reason of insanity. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Barnett v. State, Ala.Cr.App. 339 So.2d 1082; Morrell v. State, 136 Ala. 44, 34 So. 208; Garrett v. State, 248 Ala. 612, 29 So.2d 8; Section 15-16-1 of the Code Of Alabama, 1975.

There being no reversible error, the judgment of the trial court is due to be, and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Merle R. STURDIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 59416.
    Supreme Court of Florida.
    June 24, 1982.
    Rehearing Denied Oct. 5, 1982.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, Miami, for appellant.

      Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

This is a direct appeal from a conviction of first-degree murder and sentence of death. The trial court ruled that the jury’s recommendation of death mandated the imposition of the death penalty because the offense occurred in 1971. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We find we must reverse both the conviction and sentence and remand for new trial because the trial court committed reversible error in refusing to instruct the jury as to any lesser included offenses. For purposes of retrial, we have addressed other issues presented, finding appellant’s confession valid, finding no speedy trial violation, and finding the present death penalty statute applicable.

The facts necessary for our review are as follows: In April, 1971, police discovered the victim’s body in a Miami Beach apartment. There was no evidence of a struggle, causing the pathologist to believe the attack had been sudden and unexpected, with the decedent becoming incapacitated quickly. In May, 1971, appellant, Merle R. Sturdi-van, was in custody in Kansas City, Missouri, concerning another homicide. A Miami Beach detective met appellant in Missouri and obtained a statement from him. Appellant confessed, telling the detective that he met the victim in a bar, that they later went to the victim’s apartment, where they engaged in homosexual activities, and, while the victim slept, appellant strangled him, both with his hands and then with a towel to ensure death. Although in 1971 a justice of the peace issued an arrest warrant and delivered it to the city police and the state filed a detainer with the state of Missouri, no indictment was filed against appellant until eight years later, in 1979. Appellant was tried in 1979, the jury finding him guilty of first-degree murder and recommending the imposition of the death penalty. The trial judge ruled that the 1971 death penalty statute controlled because this offense occurred in 1971 and expressly stated, “The recommendation of the jury is binding upon the court.”

We will address the issue requiring reversal and certain issues raised which could affect appellant’s retrial.

The issue requiring a total retrial is the trial court’s failure to give instructions on necessary lesser included offenses to first-degree premeditated murder. Both prior to and at trial, defense counsel requested the trial court to give jury instructions on the necessary lesser included degrees of first-degree murder. Defense counsel argued that instructions were proper because the issuing of the warrant for appellant’s arrest and its delivery to the appropriate authorities tolled the statute of limitations for the lesser offenses. The state, on the other hand, contended that the statute of limitations was not tolled by the justice of the peace warrant and its subsequent delivery to the Miami Beach police department for use as a detainer in Missouri. In an argument we would expect from a defendant, the state asserts that, even though a warrant which is delivered to a proper official for execution ordinarily indicates an intent to commence prosecution, a warrant that is issued, given to an official for execution, and used as a detainer only “evidences an intent to prosecute sometime in the future and should not be considered to commence prosecution for the purpose of the statute of limitations.”

It is settled law in Florida that for the purposes of the statute of limitations, prosecution has commenced when a warrant has been issued and placed in the hands of the proper official for execution. Dubbs v. Lehman, 100 Fla. 799, 130 So. 36 (1930); Rosengarten v. State, 171 So.2d 591 (Fla. 2d DCA 1965). We reject the state’s position and find that under the facts of this case the prosecution had commenced not only for the offense charged, first-degree premeditated murder, but also for all necessary lesser included offenses, given that the warrant issued within two years from the commission of the offense.

Directly related to this point is the requirement that the state must show in the information or indictment that the prosecution “for the offense charged” has begun within the statute of limitations. Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943); Rouse v. State, 44 Fla. 148, 32 So. 784 (1902). The charging document may meet this requirement by showing on its face the date of the crime and the date the document issued. If, however, it appears from the date shown on the charging document that the statute of limitations may have run, the state must allege facts necessary to show the statute was tolled for the offense charged before prosecution commenced. The issuing of a warrant and its delivery for execution constitute circumstances which do toll the statute. If the state does not allege the tolling of the statute in an otherwise sufficient information or indictment, a defendant may by his actions waive this defense.

We emphasize that our holdings only require the prosecution to show in the charging document that the statute of limitations has been tolled “for the offense charged.” Our decisions have never required the state to allege tolling for all the necessary or permissive lesser included offenses. Further, there is no requirement that the charging document contain either a list of the appropriate lesser included offenses or the statute of limitations for each.

Our decision in Spaziano v. State, 393 So.2d 1119 (Fla.1981), is not controlling. That decision concerned instructions to the jury on lesser included offenses for which both sides conceded that the statute of limitations had run. Our ruling was based on our belief that the trial court would perpetrate an absolute fraud on the jury if it were to instruct on lesser included offenses for which the defendant could neither be convicted nor sentenced. In Spaziano, we concluded that where the state charges a defendant with a capital offense and where it unquestionably appears that the statute of limitations has run on the necessary lesser included offenses, either the defendant must waive the statute of limitations defense, and thus subject himself to possible conviction and sentence for one of them, or the trial court will instruct only for the capital offense. We distinguish Spaziano because in the instant case the issuance of the warrant and its eventual delivery to the Missouri state prison system clearly tolled the statute of limitations for appellant’s lesser included offenses. As a result, appellant was entitled to have the jury instructed on the lesser included offenses for first-degree premeditated murder.

We find the refusal of appellant’s trial counsel to waive possible defenses to the indictment in return for the lesser included instructions is not determinative under the circumstances of this case. We also find that the trial court’s refusal to give the lesser included instructions cannot be harmless error. See State v. Abreau, 363 So.2d 1063 (Fla.1978); Lomax v. State, 345 So.2d 719 (Fla.1977). Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), also requires this result. Accordingly, this cause must be remanded to the trial court for a new trial.

To assist in the retrial of this cause, we deem it appropriate to address three other issues presented. The first concerns appellant’s confession. At trial appellant testified that, prior to his confession to the detective, he was advised that Florida would not extradite or prosecute him for the murder. He also testified that he thought the detective was only interested in “clearing up the case.” The investigating detective testified that he could not remember making any statements that appellant would not be prosecuted or extradited. However, a newspaper reporter testified that from his recollection the detective had made some of those statements. In response to this contention, it is argued that the prosecutor, in cross examination, elicited from appellant an admission that no promises or threats were made at the time of the confession.

Appellant takes the position that his confession was involuntary because he made the statement only in response to a request to help “clear up the case.” Appellant asserts, therefore, that the confession must be suppressed under the dictates of Frazier v. State, 107 So.2d 16 (Fla.1958). This contention is without merit. The evidence as heard at the suppression hearing clearly indicates that appellant made the confession voluntarily. Although appellant testified that he thought he would not be prosecuted, he also testified that he had not been promised anything in return for his statement. Appellant’s typed and signed confession states that authorities made no promises or threats. The evidence totally supports the trial court’s finding that the confession was voluntary. See Stone v. State, 378 So.2d 765 (Fla.1979).

The second point concerns an assertion by appellant that he was prejudiced by the eight-year delay between the time of the murder and the time of his trial. While incarcerated in a Missouri prison for another murder, appellant knew that Florida had charged him with this offense, but he made no demand for trial. Because the state has the burden of proof, delay works against the state more than it does against a defendant. Here, appellant had an opportunity to demand a trial but did not. More importantly, he has not shown in what manner, if any, he has been prejudiced by the delay. We conclude that appellant was not prejudiced and that he has not been denied his constitutional right to speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Fla.R.Crim.P. 3.191.

The final issue we discuss concerns the trial court’s application of our previous death penalty statute which the United States Supreme Court found deficient. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); see aiso Anderson v. State, 267 So.2d 8 (Fla.1972) (death sentences reduced to life in accordance with Furman). The ruling of the trial court clearly reflects the belief that, because the crime was committed in 1971, the death penalty procedure in effect on that date was applicable and that the court was therefore bound by the jury’s recommendation of death. The trial court’s ruling not only violates the dictates of Furman but is contrary to Dobbert v. State, 328 So.2d 433 (Fla.1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In Dobbert, we held that the present death penalty procedure could be applied to offenses committed pri- or to its adoption. See § 921.141, Fla.Stat. (1981). On remand, the present statute must control.

For the reasons expressed, appellant’s conviction and sentence of death are reversed and the cause is remanded for proceedings consistent with the views expressed in this opinion.

It is so ordered.

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


author: EHRLICH, Justice. ALDERMAN, Justice,

text:
    DUVAL MOTOR COMPANY, a Florida corporation; Liberty Mutual Insurance Company, a foreign corporation; City of Jacksonville, Florida; Travelers Insurance Company, a foreign corporation, Petitioners, v. David B. WOODWARD, Jr., Respondent.
    No. 60276.
    Supreme Court of Florida.
    June 24, 1982.
    Rehearing Denied Oct. 5, 1982.

      Robert F. Spohrer, Norwood S. Wilner and Robert E. Cosby of Zisser, Robison, Spohrer & Wilner, Jacksonville, for petitioners.
    Allan P. Clark of Caven & Clark, Jacksonville, for respondent.
   EHRLICH, Justice.

We review the opinion of the District Court of Appeal, First District, Woodward v. Duval Motor Co., 391 So.2d 700 (Fla. 1st DCA 1981), which directly conflicts with State v. Coffey, 212 So.2d 632 (Fla.1968), and State v. Mitchell, 245 So.2d 618 (Fla.1971). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

This is a personal injury action. Respondent (plaintiff) a pedestrian, while crossing the street on March 5, 1977, was struck by an automobile owned by Petitioner (defendant), Duval Motor Company, and was thereby injured. The accident was investigated by an officer with the Jacksonville Sheriffs office. The officer smelled alcohol on defendant’s driver, Sobolewski, observed that he was unstable, and had slurred speech. The investigating officer, as a part of his investigation, administered a field sobriety test to the driver consisting of touching the fingers to the nose, walking heel to toe, and observing balance. The driver failed the test. The driver was later given a breathalyzer test on an intoximeter. The intoxime-ter reading was .13% and this was admitted into evidence.

Plaintiff was precluded by the trial court from introducing in evidence the results of the field sobriety test on the ground that same was privileged pursuant to section 316.066(4), Florida Statutes (1975). The district court held that this was error. We disagree and quash the decision of the District Court of Appeal.

Section 316.066, Florida Statutes (1975), requires that the driver of a vehicle which is involved in an accident resulting in bodily injury forward a written report of such accident within 5 days thereafter to the Department of Highway Safety and Motor Vehicles, but excuses that requirement when the investigating officer has made a written report of the accident. As to such report, section 316.066(4) provides that “All accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting .... No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident. ...”

Section 316.068, Florida Statutes (1975), requires the department to prepare and provide forms for written accident reports required in chapter 316, Florida Statutes, and provides that “The written reports shall call for sufficiently detailed information to disclose, with reference to a vehicle accident, the cause and conditions then existing and the persons and vehicles involved.” Implicit therein, with respect to the required accident report, is the requirement that the operator of the vehicle involved in the accident respond to inquiries and requests by the investigating police officer for information relating to the conditions existing at the time of the accident and the cause thereof. The failure of the driver to respond to such inquiry by the investigating officer exposes him to the penalties provided in section 316.026, Florida Statutes (1975).

When the investigating officer requested defendant’s driver to perform the simple acts that comprise the sobriety test it was for the purpose of gathering information to determine a possible or likely cause of the accident in question. It appears clear from the trial record that this information was elicited by the officer during the course of his investigation for the purpose of his report. While the officer concluded from this test that Sobolewski was driving while intoxicated, nonetheless, it was obtained as a part of the accident investigation for use in preparing the accident report.

Coffey and Mitchell also dealt with a physical test, namely, a chemical test to determine the amount of alcohol in the blood, as a means of determining intoxication. The results of the blood alcohol tests in those cases were held by this Court to be admissible in evidence, not because the statutory exclusion afforded by section 316.-066(4) did not extend to a non-testimonial communication, but because the blood tests were not given in connection with the accident report phase of the investigation. The field sobriety test is also a physical test to determine facts bearing on sobriety and intoxication. The results of a field sobriety test by the investigating officer during the accident report phase of the investigation are within the protective mantle of section 316.066(4) and were properly excluded by the trial judge. Insofar as the statutory exclusion in question is concerned, we perceive no material difference between the results of a blood alcohol test and the results of a field sobriety test, performed in response to a request by the officer, where both are obtained during the accident investigation for use in the report.

As we said in Mitchell:

The test for the statutory exclusion under Florida Statutes § 317.171, F.S.A., is whether the information sought to be excluded was taken by the investigating officer for the purpose of making his accident report and formed a basis for that report.

245 So.2d at 623.

The field sobriety test in question meets that test and accordingly, we hold that the privilege provided by section 316.066 attaches to the information given by Sobolew-ski in response to the request by the investigating officer to perform the field sobriety test and was properly excluded by the trial judge.

For the reasons stated, the decision here reviewed should be and it is hereby quashed, and the cause remanded for the entry of judgment for petitioners.

It is so ordered.

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

ALDERMAN, J., dissents with an opinion in which BOYD and OVERTON, JJ., concur.

ALDERMAN, Justice,

dissenting.

I would affirm the decision of the First District Court of Appeal. Like the district court, I “do not consider it was within the rational contemplation of the legislature that the results of a field sobriety test, involving as they do an officer’s observations of an inebriate’s compelled responses to such orders that he touch his nose, walk a straight line, or perform other feats of agility, be clothed with the protective mantle of statutory immunity, notwithstanding that those observations may later be reduced to writing and become part of the accident report.” 391 So.2d at 702. I would not extend the protective immunity of section 316.066(4) to any nontestimonial communication other than chemical tests for alcohol which, as pointed out by the district court, are now governed by section 322.261.

BOYD and OVERTON, JJ., concur.


author: BOYD, Justice.

text:
    Lilla LOVETT, Petitioner, v. GORE NEWSPAPERS COMPANY and Zurich Insurance Company, Respondents.
    No. 60430.
    Supreme Court of Florida.
    July 15, 1982.
    Rehearing Denied Oct. 5, 1982.
    Dennis M. Usdan of the Law Offices of Nolan & Usdan, Fort Lauderdale, for petitioner.
    Joseph H. Lowe of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Miami, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal on the ground of express and direct conflict with decisions of this Court. The decision below, Gore Newspapers Company v. Lovett, 393 So.2d 1152 (Fla. 1st DCA 1981), conflicts with Foxworth v. Florida Industrial Commission, 86 So.2d 147 (Fla.1955), and Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

This case arises from the petitioner’s claim of workers’ compensation from the respondents. Petitioner Lilia Lovett was a 59-year-old widow who suffered from a congenital condition known as scoliosis which is characterized by a very marked curvature of the spine. This pre-existing condition was aggravated when petitioner fell at work, striking her back on a linoleum-covered concrete floor. The employer, Gore Newspapers Company, and its insurer, Zurich Insurance Company, contested petitioner’s workers’ compensation claim, contending that the accident was not one arising out of and in the course of her employment. A deputy commissioner held a hearing and found the following facts:

c. On March 6, 1978 the claimant was employed as an advertising paster working her usual hours from 4:00 p.m. to 11:50 p.m., Monday through Friday. Her employment duties included ordering, typing, assembling and pasting together advertising pieces. The claimant was employed in the composing room and was required to do prolonged walking to fulfill the responsibilities of her job which included delivering the completed advertisement to the proof readers. On the evening of March 6, 1978, the claimant testified, and I find her testimony truthful, that she developed a dull ache in her head which worsened considerably throughout her shift. At the end of the claimant’s normal working hours she testified that she was feeling tired, nauseous and headachy. Further testimony revealed that some time just after 11:00 p. m. the claimant was advised by a representative of the employer that she would be required to work overtime for approximately two hours following the normal end of her shift at 11:50 p. m. The claimant notified her employer that she was not capable of working the two extra hours of overtime because of her condition which had worsened considerably throughout the evening. The claimant was advised by her employer that she would be required to work the extra two hours of overtime, and the same would be mandatory in order for her to continue to retain her employment position. The claimant testified that she was fearful of being terminated and decided to work the overtime shift. At about 12:45 a. m. on March 7, 1978, while working her overtime shift, the claimant decided that it was necessary to go to the rest room just down the hall from the area where she was working. On the way to the rest room the claimant fell to the hard concrete floor covered with tile, landing on her back. The claimant was immediately rushed to Broward General Hospital and treated in the emergency room and released.
d.That same morning, the claimant came under the care and treatment of Dr. Floyd Osterman, who advised her to remain out of work to recover from the back injury sustained in the fall. From March 7, 1978 through April 2, 1978 the claimant was confined to her home. On April 3, 1978 the claimant tried to return to her usual employment. After one day of trial work the claimant again had a recurrence of her severe back pain and advised her employer that she was not able to continue working.
e. On April 20, 1978 the claimant came under the care and treatment of an orthopedic surgeon, Dr. George Rahilly. The claimant received conservative care from Dr. Rahilly, including physical therapy and medication for relief of back pain. Again the claimant tried to return to her usual work in the middle of April, 1978, and was again unable to continue working because of the nature of her pain, from April 24, 1978 to September 4, 1978. Once again the claimant tried to return to work from September 4, 1978 through March 9, 1979, however, she was required to stop work because of the nature of her back pain once again on March 9, 1979.
f. Dr. George Rahilly, the only orthopedic surgeon to testify in this cause, and the treating physician for the claimant’s back condition, testified, and I accept his testimony as true, that the claimant suffered from a pre-existing back condition known as scoliosis, which was severely and permanently aggravated by her fall to the employer’s hard concrete floor covered by tile, on March 7, 1978.
g. I find therefore, that the claimant did suffer an injury by accident arising out of and in the course of her employment on March 7,1978. The claim herein is for compensation and medical benefits as a result of physical damage suffered by the claimant as a result of her fall at work. As such no claim is being made for compensation and/or medical treatment for the claimant’s fatigue, headaches or her emotional problems. We are therefore concerned with the compensa-bility of an identifiable accident. I find that recovery is not precluded by the fact that the claimant may have suffered a loss of consciousness prior to the fall that actually occasioned her back injuries. The vital point here is that the injury, [for] which claim is being made, was caused by the claimant’s contact with the hard concrete floor covered with tile. Dr. Rahilly testified, and I accept his testimony, that the hard concrete floor covered with tile served as a special and increased hazard to the claimant’s pre-existing back condition, which was permanently aggravated by her fall to it. I therefore find that a compensable injury was suffered by the claimant herein because it originated in some substantial risk connected with the employment and flowing as a natural consequence from the employment.

Original Record at 265-68.

The district court of appeal reversed, holding that while the accident occurred in the course of petitioner’s employment it did not arise out of her employment. In reaching this conclusion the district court found that the conditions of employment did not contribute to the fall which brought about petitioner’s injury. In so finding, the district court erred.

As the deputy commissioner found, on the night of the accident petitioner was required to work two hours beyond her normal eight-hour shift despite her protestations that she was not feeling well. The tiled concrete floor, as the deputy commissioner also found, was a special and increased hazard to appellant’s pre-existing back condition. Because of these factors it cannot fairly be said that petitioner would just as likely have sustained an injury such as the one that occurred if she had been in her own home. See Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944) (fall on floor at work, caused in part by injured worker’s physical condition, was a compensable accident); Cheney v. F. E. C. News Distribution Co., 382 So.2d 1291 (Fla. 1st DCA 1980) (fall caused by the effect of the nature of the work on claimant’s physical condition, and aggravating a pre-exist-ing condition, was compensable). “In this highly controversial area, [idiopathic falls causing injury on the job] this court has favored the more liberal view allowing recovery.” Foxworth v. Florida Industrial Commission, 86 So.2d 147, 152 (Fla.1955). We therefore hold that the district court erred in overturning the deputy commissioner’s finding that petitioner’s employment, along with her personal physical condition, caused her to fall and sustain injury. The injury arose out of and was sustained in the course of petitioner’s employment and was therefore compensable.

The decision of the district court of appeal is quashed and the case is remanded with directions that the deputy commissioner’s order be affirmed.

It is so ordered.

ALDERMAN, C. J., and ADKINS, OVERTON, SUNDBERG and MCDONALD, JJ., concur.


author: McDonald, justice.

text:
    Virginia HANNEWACKER, Petitioner, v. CITY OF JACKSONVILLE BEACH, Respondent.
    No. 61062.
    Supreme Court of Florida.
    July 22, 1982.
    Rehearing Denied Oct. 5, 1982.

      Steven E. Rohan of Vickers & Rohan, Jacksonville, for petitioner.
    C. Wayne Alford and T. Edward McClam-ma of Sinoff & Alford, Jacksonville, for respondent.
   McDonald, justice.

The First District Court of Appeal has certified that its decision in Hannewacker v. City of Jacksonville Beach, 402 So.2d 1294 (Fla. 1st DCA 1981), is in direct conflict with Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

Mrs. Hannewacker alleges that she was injured in a fall caused by the chipped edge of a street curb. There was no evidence that the city had actual knowledge of the defective curb, nor was there direct evidence that the condition had existed for such time that the city should have known of it and corrected it.

Photographs of the broken curb and of some nearby repair work were introduced into evidence with the plaintiff contending that these, standing alone, provided a basis for an inference of constructive notice of the defect. The nearby repair was identified as having been there for two years, but no testimony connected that condition with the broken curb. The trial judge reserved ruling on the city’s motion for directed verdict, but, after the plaintiff’s verdict was returned, granted the city’s motion, finding that the photographs were insufficient evidence to raise an inference as to the length of time the defect had existed. The first district, relying on City of Jacksonville v. Hampton, 108 So.2d 768 (Fla. 1st DCA 1959), affirmed the trial court and certified conflict to this Court. We approve the decision of the district court, but modify its holding.

In Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975), the plaintiff was injured when she caught her foot in a hole in a sidewalk. The only evidence presented at trial concerning the length of time that the hole had existed was a photograph of the scene. In affirming the award to the plaintiff the third district held that the photograph, standing alone, constituted tangible evidence of the scene sufficient to raise an inference as to the duration of the defect.

In City of Jacksonville v. Hampton the plaintiff slipped on a damaged step at the city hall. The only evidence of the length of time that the defect had existed was a photograph of the defective step. After judgment for the plaintiff, the city appealed. The first district reversed, holding that a photograph is only admissible to explain and demonstrate a witness’ testimony, not to form the basis for an inference as to the duration of the defect.

There are two separate theories concerning the admissibility and use of photographs as evidence. One is referred to as the “pictorial testimony theory of photographs.” Under this theory a photograph is admissible as a nonverbal mode of expressing a witness’ testimony, a substitute for a description in words. It does not recognize the picture as having independent evidentiary rule. The other “silent witness” theory recognizes that, once properly authenticated, the photograph has independent evidentiary value and can speak for itself.

This Court recognized a limited use of photographs over ninety years ago in Adams v. State, 28 Fla. 511, 10 So. 106 (1891). In determining the admissibility of a map this Court stated:

A map, plan or picture, whether made by the hand of man or photography, if verified as a true representation of the subject about which testimony is offered, is admissible in evidence to assist the jury in understanding the case. They are frequently formally admitted in evidence, and in so far as they are shown to be correct, are proper for the consideration of the jury, not as independent testimony, but in connection with other evidence, to enable the jury to understand and apply such evidence.

Id. at 538, 10 So. at 113. See also City of Miami v. McCorkle, 145 Fla. 109, 199 So. 575 (1940).

Since Adams this Court has permitted inferences and deductions to be drawn from photographs. In Goff v. Miami Transit Co., 77 So.2d 636 (Fla.1955), the plaintiff was injured in an automobile collision. The trial judge entered a directed verdict for the defendant and Goff appealed. This Court reversed, stating:

Diagrams and photographs, in fact physical evidence, generally may speak so loud that one will not hear the witnesses. We have examined the oral and the physical evidence in this case and we cannot escape the conclusion that the trial court acted too hastily in taking the case from the jury. Appraisal of the weight of the evidence is always a jury question and in this case the oral and physical evidence required deductions from diagrams, photographs and other evidence, that should have been resolved by the jury instead of the court.

Id. at 637.

In Bess v. 17545 Collins Avenue, Inc., 98 So.2d 490 (Fla.1957), the plaintiff complained that a one-and-a-half-inch metal pipe running across a walkway caused him to trip and fall. On the basis of two photographs the trial judge entered a summary judgment for the defendant, finding that the hazardous condition was obvious. This Court reversed the trial court, stating:

It is clear to us that reasonable men might justifiably make different inferences and deductions and reach different conclusions from these photographs. Where this appears it is the province of the jury to make such deductions and inferences. See Goff v. Miami Transit Co., Fla.1955, 77 So.2d 636. In such cases it cannot be said that there is no genuine issue of material fact to be determined.

Id. at 492.

While these decisions concern inferences and deductions about the physical qualities of the subjects in the photographs, only those cases listed by the district court in the instant case have dealt expressly with the abstract quality of time. The normal procedure for entering evidence of the duration of a defect is through testimony of a witness with personal knowledge of the duration, or through the opinion of an expert witness. This is the preferred and safer procedure to follow. The rule of the district court in this case requiring live testimony in addition to a photograph to support the critical element of time is also preferred.

We are persuaded, however, that a properly admitted photograph can act as a silent witness and that there are some limited situations where a photograph standing alone can provide a basis for an inference of time. We recognize that several problems may arise when photographs are used for this purpose. The science of photography has developed significantly since our decision in Adams. Because of present technology, photographs can often demonstrate, preserve, and transmit a message far better than any human witness. There remains, however, the ability to affect the image of that message through technical developments in the field. The perspective from which the photograph is taken, the type of camera and film used, the quality and focal length of the lenses used, the lighting, the use of filters, and the development of the final print or transparency can result in distortion and misrepresentation. See 1 C. Scott, Photographic Evidence §§ 71-100 (1969). The effect of such distortion or misrepresentation on the physical characteristics is usually minimal but the effect on the abstract quality of time can be misleading. Admissibility, however, is a question for the trial judge. Once authenticated and admitted, questions of possible distortion go to the weight which the photograph is given. 3 J. Wigmore, Evidence § 792 (J. Chadbourn rev. 1970).

Another concern with admitting a photograph as substantive evidence is that it cannot be cross-examined. We do not consider this to be a problem because the witness whose testimony establishes the foundation can be extensively cross-examined by the opposing party. Once a foundation is established, the photograph gains a certain degree of authenticity and reliability, and we perceive no compelling need for further cross-examination.

If the photograph portrays a condition that has some distinguishing feature which clearly shows that the defect has existed for a long period of time, it may afford the jury a basis to infer that a significant period of time has passed. If the photograph is ambiguous on this point and what is shown makes it questionable whether a significant period has passed, the jury would necessarily be required to indulge in speculation to determine the duration of the condition. In such a case the photograph without live testimony is insufficient. This is no different than if a witness testifies to the condition of a defect at the time of an accident and there are no distinguishing features or other testimony to indicate its duration. In such instance the trial judge is entitled to direct a verdict on the question of constructive notice. Since that is the law in effect for testimonial evidence; it should be the same when the witness is a photograph. But there are photographs which may constitute tangible evidence of the scene of an accident sufficient to raise an inference as to the length of time the defect was present. While this depends entirely on the condition sought to be depicted, the photograph must clearly demonstrate that a significant period of time has passed.

In the present case the photographs show the chipped curb and the surrounding area. The exposed concrete surface of the chipped area is lighter than the surrounding areas, but there is no discoloration or unusual sign of wear on the surface. Prom these pictures the jury could only guess or speculate as to how long the defect existed. The trial judge found that the photographs were insufficient to raise an inference as to the duration of the defect.

Petitioner further contends that even without the inference from the photographs there was sufficient evidence to infer constructive notice. The photographs showed two footprints in the concrete surface of a street patch just a few feet from the chipped curb. In her closing argument Mrs. Hannewacker alleged that since the footprints had existed for at least two years, the chipped curb could have existed for a significantly long period also. However, there is no evidence linking the footprints’ existence to the curb defect, and whether the city negligently allowed the prints to remain is not related to the city’s alleged negligence for the present defect. The footprints provide an insufficient basis to infer constructive notice.

Finding no evidence of the length of time the defect existed, the trial court correctly directed a verdict for the city. The result reached by the First District Court of Appeal is approved as modified.

It is so ordered.

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

      . In City of St. Petersburg v. Roach, 148 Fla. 316, 318, 4 So.2d 367, 368 (1941), we stated:
      It is written in McQuillan Municipal Corporations, Second Edition, Volume 7, page 163, that one may not recover for injuries resulting from defective sidewalks unless it be shown that the injury was directly traceable to the defect; “that the sidewalk was not reasonably safe;” and that the flaw had been there a sufficient length of time for the municipal corporation to have discovered it by the exercise of reasonable care and to have repaired it.

      . 402 So.2d at 1296.

      . 3 J. Wigmore, Evidence § 790 (J. Chadbourn rev. 1970).

        .Id.

      . City of Jacksonville v. Hampton; Leon v. City of Miami.

      . Such as in Clark v. City of Berkeley, 143 Cal.App.2d 11, 299 P.2d 296 (1956) (sidewalk was dilapidated and fragmented with grass and weeds growing through the cracks); Van Dorn v. City & County of San Francisco, 103 Cal.App.2d 714, 230 P.2d 393 (1951) (settled and sunken areas in paving stones could not have arisen suddenly); Word v. City of St. Louis, 617 S.W.2d 479 (Mo.App.1981) (jury could have reasonably inferred that the defect had been present long enough for the metal to rust and the cracks to appear); Taylor v. New York City Transit Auth., 48 N.Y.2d 903, 400 N.E.2d 1340, 424 N.Y.S.2d 888 (1979) (the irregularity, width, depth and appearance of the defect apparent from the concrete surface exhibited such a length of time).


text:
    Antonio MENENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 49294.
    Supreme Court of Florida.
    Aug. 26, 1982.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz and Daniel Vela-yos-Laredo, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for appellant.
    Jim Smith, Atty. Gen. and Richard W. Prospect and Calvin L. Fox, Asst. Attys. Gen., Miami, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from the imposition of a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

This case was previously before the Court on appeal of the judgment of conviction and sentence of death. There we affirmed the convictions of first-degree murder and robbery but vacated the sentence of death and remanded to the trial court for resentencing. Menendez v. State, 368 So.2d 1278 (Fla.1979). In our earlier opinion we held that three of the aggravating considerations recited by the trial court were not authorized by statute and were therefore improper. We found that two of the remaining aggravating circumstances found by the trial court, although statutory, were not supported by evidence and were therefore also improper. We concluded that, with only one properly found aggravating circumstance and one mitigating circumstance (lack of a significant criminal history) appearing on the record, it was impossible for us to evaluate the trial court’s weighing of the factors. We therefore vacated the death sentence and remanded for resentencing by the trial judge.

The trial judge held a hearing at which both sides were given the opportunity to present additional testimony and argument. The state presented no additional testimony, relying instead on the evidence already heard, by the court at the earlier trial. The defense presented the testimony of several witnesses. One group of witnesses consisted of persons who have been in correspondence with appellant since the time of his imprisonment for the instant offenses. They offered their conclusions and beliefs to the effect that appellant is a “positive” individual, capable of rehabilitation and of being useful to society. Another group consisted of persons who knew appellant as a child and as a young adult. They stated their beliefs that appellant was and is a good, trustworthy, and social-minded person. Finally, a social worker testified to her conclusions that, as a non-English speaking immigrant, appellant encountered extreme difficulty with assimilation and in earning a living and that such difficulties contributed significantly to his committing the criminal acts for which he was convicted.

Following the taking of testimony, the trial judge allowed both sides to present argument. Then, the judge announced that she had considered the evidence and argument, had weighed the circumstances, and was prepared to impose sentence. In the sentencing findings, the judge stated that the additional evidence presented had contained nothing sufficient to change her original determination to follow the jury’s recommendation of a sentence of death. She found that the aggravating circumstance, that the murder was committed in the course of a robbery, outweighed the “single mitigating circumstance” of lack of significant history of prior criminal activity, and again sentenced appellant to death.

This Court’s previous opinion issued on appellant’s original appeal contained the following statement of the facts:

The following sequence of events led to Menendez’s arrest and conviction. A customer walked into a jewelry store and saw a man emptying the store’s safe. The man took a gun from his jacket and grabbed for the customer, but she eluded his grasp and ran out of the store. Soon thereafter the same man was seen by the customer and her husband leaving the store and speeding away in a red Camaro with New York license tags. Both the husband and wife later gave police similar-descriptions of the man they had seen. A police officer soon arrived at the store and found the dead body of the jeweler.
At 2:30 a. m., the officer received word that a red Camaro had been seen at an apartment complex. He proceeded to the area and noted that although the car had a Florida license tag, it bore a New York inspection sticker. The officer then went into the complex and questioned the manager, who said that he thought the Cama-ro belonged to the resident of a particular apartment whose description matched that of the man seen at the jewelry store. The manager also stated that this resident had been seen transferring various goods from the trunk of the red Camaro to another vehicle earlier. The officer went to the door of the apartment, knocked, and announced both in English and Spanish that he was a police officer.
After about five minutes, during which time the officer heard shuffling and sounds of movement inside the apartment, the door was opened about two inches to reveal an individual holding a pistol in his hand. The officer immediately pushed the door fully open, upon which the person who had opened the door dropped the pistol. Across the room the officer saw another man who fit the suspect’s description and numerous items of merchandise which later proved to have been taken from the jewelry store.
The officer arrested the persons in the apartment and confiscated both the weapons and merchandise. The man seated across the room was Menendez, who was later identified in a lineup at the police station by the woman who had witnessed the jewelry store robbery.
After a trial by jury, Menendez was convicted of robbing the jewelry store and murdering the store owner. He was sentenced to life imprisonment for the robbery and to death for the murder.

Menendez v. State, 368 So.2d 1278, 1279 (Fla.1979). Menendez and the other man arrested were both charged with robbery and murder and were tried together. The other man was acquitted of both charges.

Appellant contends that the trial court erred in refusing to convene a jury to hear evidence and make a new sentencing recommendation. However, in deciding the earlier appeal, we held that there had been no error at the original sentencing trial with regard to evidence and instructions, so that the jury’s recommendation was valid and a new jury recommendation was not required. Therefore, the trial court’s decision on remand not to convene a jury was in keeping with our mandate and was proper.

Appellant contends that section 921.-141, Florida Statutes (1975), is unconstitutional in that the effect of the aggravating circumstances therein is to create a presumption that death is the appropriate penalty for persons convicted of first-degree murder on the theory of felony murder. He argues that one convicted of one of several kinds of felony murder enters the sentencing process with one statutory aggravating circumstance already established against him by virtue of section 921.-141(5)(d). Therefore, the argument continues, a defendant in such a position is required to prove mitigating circumstances to establish his right to a life sentence. Thus, the statute provides for an automatic death penalty for certain types of crimes. By virtue of these characteristics, appellant argues, the capital felony sentencing law authorizes cruel and unusual punishment and violates principles of due process. We reject these arguments as being without merit.

Appellant contends that there is no evidence to support the finding that the murder was committed for pecuniary gain. We noted in our original opinion in this case that the trial court did not give separate consideration to pecuniary gain as an aggravating circumstance but, rather, properly merged it with the factor of the murder having been committed in the course of a robbery. We expressly concluded that, as so merged, this single aggravating factor was supported by the evidence. The state accordingly responds to this argument by saying that appellant may not attempt to reopen this issue which was settled in the initial appeal. We agree and adhere to our earlier conclusion that there was sufficient evidence to establish that the murder was committed in the course of a robbery. § 921.141(5)(d), Fla.Stat. (1975).

The final issue is whether a sentence of death is appropriate to this case in view of all the properly considered circumstances. The circumstances are that the murder occurred in the course of the crime of robbery committed by the appellant. There was no sufficient proof, however, that this was an “execution-style” or a “witness-elimination” murder. Indeed, there was no direct evidence of a premeditated murder, so we must presume that the conviction rests on the felony murder theory. The appellant, at the time of the murder, had no significant history of prior criminal activity. The trial court found this statutory mitigating circumstance at the original sentencing and it was corroborated and reinforced by further testimony for the defense at the hearing on remand. Moreover, at the hearing on remand several new defense witnesses testified that appellant has demonstrated a capacity for rehabilitation.

Our function in reviewing a death sentence is to consider the circumstances in light of our other decisions and determine whether the death penalty is appropriate. 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). We hold that the facts of this felony murder do not call for the death penalty.

We therefore vacate the sentence of death and remand this case to the trial court with directions to sentence appellant to life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

ALDERMAN, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and MCDONALD, JJ., concur.

      . The crucial language of the opinion was as follows:
      There is, therefore, only one properly found aggravating circumstance and one mitigating circumstance. Since the trial judge has committed error in considering matters outside the permissible range of legal standards set by the statute, and because it is impossible for us to evaluate the weight given by the trial judge to those factors which were proper to consider in imposing the death penalty, we can only vacate the sentence of death and remand the case for resentencing.

        Menendez v. State, 368 So.2d 1278, 1282 (Fla.1979).

      . The state’s argument on this issue seems somewhat disingenuous in light of the fact that the state makes precisely the same kind of attack on another finding in our earlier judgment. The state persists in arguing that the evidence showed that the murder was committed for the purpose of avoiding arrest or detection. There was no competent, substantial evidence to prove this circumstance. As we suggested in our initial opinion, evidence that a murder was committed stealthily, with care taken to prevent the detection of the murder, does not establish that the murder itself was committed for the purpose of avoiding arrest, as when a witness is killed to prevent him from identifying the perpetrator of an antecedent crime. § 921.141(5)(e), Fla.Stat. (1975).


text:
    William Cornelius SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 58183.
    Supreme Court of Florida.
    Aug. 26, 1982.

      Charles D. Waller of Waller & Hersch, Dade City, for appellant.
    Jim Smith, Atty. Gen. and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of first-degree murder for which a sentence of death was imposed. We have jurisdiction. Art. Y, § 3(b)(1), Fla.Const.

Appellant Simmons was convicted of murder in the first degree and second-degree arson of a truck. The evidence showed that he became involved with Betty Hardy, the victim’s wife. As a result of this involvement, appellant decided to kill James Hardy, Betty Hardy’s husband. Appellant and Hardy were together in the Hardy home when appellant struck him twice in the head with a roofing hatchet. Death was probably instantaneous or nearly so; an expert testified that either of the two blows could have caused instantaneous death by itself. After the killing, appellant, apparently with Betty Hardy’s help, dragged the victim’s body out of the house and put it in Hardy’s truck. Appellant then drove the truck alongside a highway and set it on fire. Firemen put out the fire before it destroyed the truck and found the body.

There were two witnesses who testified that appellant told them he was planning to murder Hardy and offered to pay for their help. There were also two witnesses who testified about conversations with appellant after the murder in which he admitted having done the crime.

Appellant attempted to send a note to Betty Hardy via a trusty inmate. The trusty turned the note over to a guard who gave it to the investigators. In the note, appellant told Betty that he had not made any kind of confession, and would not admit to anything until she decided what she wanted to do. He also told her to put the car and the trailer or land up for sale and to “get us both out o. k.” The note concluded, “I promise I Love you, and I’ll never say or tell anything. I love you, 4 ever.”

Appellant raises no challenge on this appeal to the judgment of conviction for first-degree murder and second-degree arson. We find that there was sufficient evidence presented to support the convictions.

At the sentencing phase the state presented a certified copy of appellant’s previous judgment of conviction for robbery. The defense then presented the deposition of the victim from the file of the earlier robbery case. It showed that while another person held the victim by the shoulders, appellant took $79 from the victim’s coat pocket.

The defense presented the testimony of a psychiatrist who had examined appellant extensively. On motion of the state, the testimony concerning the expert’s evaluation of appellant was proffered to the judge for a determination of relevancy. The doctor concluded that appellant was neither psychotic nor neurotic, that he knew right from wrong, and that he was of normal intelligence, but that he suffered from extreme emotional immaturity and character disorder. The psychiatrist stated his opinion that, unlike some violent criminals with more severe character disorders, appellant has the capacity to be rehabilitated. The trial judge ruled that the doctor could testify as to his general findings and appellant’s general characteristics, but would not be permitted to state his opinion that appellant has the capacity to be rehabilitated. Following this ruling, the defense declined to present the psychiatrist’s testimony to the jury as so limited. The court stated, however, that it would consider all of the evidence proffered in imposing the sentence even though it was not all proper for consideration by the jury.

Following receipt of the jury recommendation of death, the court sentenced appellant to death. In his factual findings in support of the death sentence, the trial judge found that the murder was committed for pecuniary gain, that the murder was especially heinous, atrocious, and cruel, and that appellant had previously been convicted of a felony involving the use or threat of violence to a person. The judge found that there were no statutory mitigating circumstances. With regard to the mitigating value of the psychiatric testimony about appellant’s capacity for rehabilitation, which was kept from the jury, the court said the following:

Such testimony has received due consideration, it being the finding of this Court, however, that the post facto possibility of rehabilitation of the Defendant notwithstanding, there are certain offenses, such as the one that is the subject of the Court’s consideration herein, that are so heinous, atrocious, premeditated, and cruel that the possible rehabilitation of a defendant who commits such an act is far overshadowed by society’s responsibility to exact the ultimate penalty as a deterrent to 'others who would entertain the thought of committing such or similar atrocities for no purpose other than greed or pecuniary gain.

Appellant argues that all of the aggravating circumstances found by the trial court are erroneous, that the court erred in instructing the jury that robbery is as a matter of law a felony involving the use or threat of violence to the person, that the court should have found several statutory mitigating circumstances, and that the court erred in refusing to allow the psychiatrist to testify concerning appellant’s capacity for rehabilitation.

In support of the finding that the murder was committed for pecuniary gain, the judge pointed to testimony that appellant had offered money to two individuals for their help in murdering the victim. One of these witnesses testified that appellant told him that he, appellant, would receive a new Trans-Am automobile as one of the fruits of the crime. The judge attributed such testimony to another witness as well, but the record does not support such a finding.

There was no testimony or other evidence pertaining to where the money to pay for assistance in the killing was going to come from, nor was there any direct testimony establishing the existence of the Trans-Am automobile or showing how appellant was to come into possession of it as a result of the murder. There was also the intercepted note written by appellant, although not cited by the trial court, telling Betty Hardy to sell the car and trailer or the land, indicating a possible expectation of monetary benefit. There was not, however, sufficient evidence to prove a pecuniary motivation for the murder itself beyond a reasonable doubt. Such proof cannot be supplied by inference from circumstances unless the evidence is inconsistent with any reasonable hypothesis other than the existence of the aggravating circumstance. Therefore this finding must be stricken.

In support of his finding that the murder was especially heinous, atrocious, and cruel, the judge relied on the fact that the killing was done by bludgeoning with a heavy, sharp tool and “that the Defendant endeavored to conceal, or otherwise hide, the product of his premeditated murder by an unsuccessful attempt to burn the body of his victim in the victim’s own truck.” This Court has consistently held, however, that in order for a capital felony to be considered heinous, atrocious, or cruel it must be “accompanied by such additional acts as to set the crime apart from the norm of capital felonies.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 948, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). There was no proof that the victim was aware that he was going to be struck with a hatchet. 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). There was no evidence that the victim was subjected to repeated blows while living; death was most likely instantaneous or nearly so. The finding that the victim was murdered in his own home offers no support for the finding, nor does the evidence that appellant attempted to conceal the murder by burning the body. See Halliwell v. State, 323 So.2d 557 (Fla.1975). Therefore this aggravating circumstance must also be stricken.

Appellant also challenges the court’s finding that he had previously been convicted of a felony involving the use or threat of violence and the court’s instruction to the jury regarding this aggravating circumstance. Robbery, appellant points out, can be committed by force, violence, assault, or putting in fear. He points to evidence pertaining to the previous crime and argues that, since there was no weapon and no injury, the robbery was committed merely by force and not by violence or the threat of violence as is required in order to establish the aggravating circumstance in question. Thus he calls attention to and relies upon the difference in meaning between “force” and “violence.”

When one commits robbery without inflicting physical injury and without threatening physical injury by display of a weapon, but merely by overpowering or restraining the victim enough to allow the taking of his property, the crime is robbery nevertheless. Such a crime has a confrontational element that sets it apart from mere larceny or stealing. The distinction is illustrated by the difference between a pickpocket, who does not intend to confront or assault his victim, and a purse-snatcher, who does. The law recognizes the serious nature of such a confrontational crime and classifies it as robbery because it has a high life-endangering potential. Through the assault or restraint, even if not physically injurious or violent, the robber conveys to the victim the message that if he resists, greater force will be used if necessary to effectuate the robbery. Therefore, a robbery committed by assault and restraint is just as much a felony involving the threat of violence as is a robbery committed through battery or the display of a weapon.

We therefore conclude that, for the purposes of section 921.141(5)(b), Florida Statutes (1977), robbery is as a matter of law a felony involving the use or threat of violence. The trial court was correct in so instructing the jury and in finding this aggravating circumstance based on the evidence.

Appellant contends that the trial court erred in refusing to find several mitigating circumstances from the evidence. He argues that the judge should have found the absence of a significant criminal history. § 921.141(6)(a), Fla.Stat. (1977). We conclude, however, that the judge was correct in not finding this mitigating factor since, according to a presentence investigation, appellant had not only the robbery conviction already discussed, but also numerous misdemeanor convictions, several arrests and accusations, and two charges of violation of parole.

Appellant contends that the trial judge should have found that his capacity to appreciate the criminality of his conduct or to conform it to the requirements of law was substantially impaired. Id. § 921.-141(6)(f). We conclude that the evidence of alcohol and marijuana use on the night of the murder did not compel such a finding. See Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed. 250 (1980); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Buckrem v. State, 355 So.2d 111 (Fla.1978); Songer v. State, 322 So.2d 481 (Fla.1975), vacated, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

Appellant contends that the trial judge should have found his youth to be a mitigating circumstance. Id. § 921.-141(6)(g). Appellant’s age at the time of the crime was twenty-three; we hold that the judge here was not required to find appellant’s age to be a mitigating factor. See Songer v. State, 322 So.2d 481 (Fla.1975), vacated, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

Appellant’s final argument on appeal is that the trial judge erred in refusing to allow the defense to present to the jury a psychiatrist’s evaluation of appellant’s capacity for rehabilitation. Appellant contends that the testimony would have had some arguable value for the jury in determining whether the death penalty was appropriate in light of the circumstances of the crime and the character of the defendant. We agree. In United States v. Grayson, 438 U.S. 41, 47-48, 98 S.Ct. 2610, 2614, 57 L.Ed.2d 582 (1978), the Court said, “To an unspecified degree, the sentencing judge is obligated to make his decision on the basis, among others, of predictions regarding the convicted defendant’s potential, or lack of potential, for rehabilitation.” A person’s potential for rehabilitation is an element of his character and therfore may not be excluded from consideration as a possible mitigating factor. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Since the evidence appellant offered was reasonably related to such a valid mitigating factor, the evidence should have been admitted before the jury at the sentencing phase of the trial. See Perry v. State, 395 So.2d 170 (Fla.1980); Miller v. State, 332 So.2d 65 (Fla.1976).

We affirm appellant’s conviction for first-degree murder. His judgment of conviction for second-degree arson has not been challenged on this appeal. We vacate the sentence of death, and remand the case to the trial court for a new sentencing hearing before a new, specially empanelled jury.

It is so ordered.

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

ADKINS, J., concurs with conviction and dissents with sentence.

SUNDBERG, J., concurs with conviction and dissents with sentence: “I would simply remand for imposition of a life sentence.”


author: ADKINS, Justice.

text:
    Edmund Dorr GRIFFIN, Petitioner, v. STATE of Florida, Respondent. Scott William LAWRENCE and Charles Axonowitz, Petitioners, v. STATE of Florida, Respondent.
    Nos. 59964, 60023.
    Supreme Court of Florida.
    Aug. 26, 1982.

      Richard L. Jorandby, Public Defender and Anthony Calvello, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for Griffin.
    J. David Bogenschutz of Varón & Stahl, Hollywood, for Lawrence.
    Jim Smith, Atty. Gen. and Max Rud-mann, Asst. Atty. Gen., West Palm Beach, for respondent.
   ADKINS, Justice.

We have for review decisions by the District Court of Appeal, Fourth District (Griffin v. State, 389 So.2d 261 (Fla. 4th DCA 1980), and Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980)), which pass upon questions that it certifies are of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

As part of an October, 1977, drug bust, two undercover agents from the Ft. Laud-erdale, Florida, police department met with several men, including petitioners Lawrence and Griffin, at the latter’s home to complete a previously arranged cocaine purchase. During the transaction one of the agents left the home, ostensibly to get a scale and money from his car, and returned accompanied by several other officers. The agent and policemen did not knock or in any other way announce their presence before entering the house and arresting those involved in the sale, nor did they have arrest or search warrants.

At their trial on various charges stemming from the transaction, petitioners’ motion to suppress physical evidence was denied. Petitioner Lawrence pled nolo con-tendere to delivery of cocaine and was placed on probation for five years with the first year to be spent in jail. On appeal, the fourth district upheld the trial court’s judgment and certified two questions as being of great public importance:

1. When an individual invites more than one undercover law enforcement officer into a dwelling or other building in order to transact felonious business and one officer leaves the premises on the pretext of furthering the felonious transaction (but in reality to obtain reinforcements) while another officer or officers remain inside the premises, does the officer who left have an implied invitation to reenter the premises freely or must he comply with the provisions of Section 901.19(1), Florida Statutes (1979), in order to make a lawful reentry?
2. Does the holding of the Supreme Court of the United States in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), prohibit the sort of reentry described in question (1) even though the officer seeking reentry complies with Section 901.19(1)?

Petitioner Griffin pled nolo contendere to criminal conspiracy and was placed on five years probation with the first six months to be spent in jail. The fourth district affirmed that judgment on the authority of Lawrence and on petition for rehearing again certified the two questions above.

The answer to the first question, under the facts in this case, is that the officer that left the house had an implied invitation to reenter and did not have to “knock and announce” pursuant to section 901.19(1), Florida Statutes. Several factors convince us so.

First, there is the nature of the transaction involved. Petitioners invited the undercover agents into the home to buy drugs. The deal would not be complete until the drugs were paid for, so when one of the agents went outside to his car under the pretense of getting a scale and the purchase money, his return was doubtlessly expected. In fact, it is probably safe to say that his reentry to the house was eagerly desired by petitioners — those who come to pay off debts seem universally welcome. Although there was no express or verbal invitation to reenter the home, the consent to do so was implicit.

That the agent did not return for the purpose intended by those inside does not vitiate the consent given him. There is no protection in a case like this from mistaken faith in one’s associates. Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966). The initial entry by the agents could not be held improper simply because it was the result of trickery, and the same reasoning validates the subsequent reentry.

Petitioners’ argument that there was only consent to the initial entry of the agent as a “guest” and not to his subsequent entry in an “official capacity” is unconvincing. The agents were acting in an official capacity throughout the entire transaction regardless of petitioners’ perceptions of the state of things, and the arrests were the result of petitioners’ misplaced confidence in inviting the agents into the home. The distinctions between “guest” status and “official” status are irrelevant.

Related to this issue is the matter of the back-up officers that accompanied the agent when he returned to the house. Petitioners argue that even if the returning agent had consent to enter the home, the police accompanying him did not. With regard to the additional police, however, petitioners are again simply victims of their misplaced trust. The agent was free to bring others with him when he utilized his invitation to return, and the policemen were not acting improperly so long as they were in his company. Petitioners did not expect the men with whom they dealt to be officers of the law, much less for one of them to show up with reinforcements, but in opening the home to their associates and business contacts, they put themselves in the position of having to accept the consequences.

■ In holding that the agent had permission to reenter the home, we do not mean to suggest that once the authorities have been admitted to a residence they have carte blanche to return and enter at their own will: What we are saying is that under the facts of this particular case, the authority to reenter was implicit. The agent left the house for a very short period of time, his return was expected and encouraged, and his return was a necessary part of the uncompleted, ongoing transaction pursuant to which he had first been invited. In this situation, he did not need to comply with the provisions of section 901.19(1), Florida Statutes, before reentering petitioner Griffin’s home.

The second question certified by the district court, concerns whether the United States Supreme Court’s decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), prohibits the sort of reentry described in the first question even though the reentering officer complies with section 901.19(1). Payton dealt with a non -consensual entry, which is not the situation in this case. Defendant, while in his home, committed a felony in the presence of the officer. This is an exigent circumstance which allows a warrantless arrest in the home without violating the Payton rule.

Having considered the district court’s opinion in light of our answers to the certified questions, the decisions therein are approved.

It is so ordered.

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


text:
    Noel STEFFANI, Petitioner, v. STATE of Florida, Respondent.
    No. 60757.
    Supreme Court of Florida.
    Aug. 26, 1982.
    Paul Morris, Sp. Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., Eleventh Judicial Circuit, Miami, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Third District, (State v. Steffani, 398 So.2d 475 (Fla.3d DCA 1981)), which passes upon questions that it certifies to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

This case involves the same questions as were considered in our consolidated opinion in Griffin v. State and Lawrence v. State, 419 So.2d 320 (Fla.1982). For the reasons expressed in that consolidated opinion, we approve the district court’s decision.

It is so ordered.

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


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

text:
    INTERNATIONAL PATROL AND DETECTIVE AGENCY COMPANY, INC., Petitioner, v. AETNA CASUALTY & SURETY COMPANY, et al., Respondents.
    No. 60525.
    Supreme Court of Florida.
    Aug. 26, 1982.
    Richard M. Goldstein and Paul H. Amundsen of Peeples, Earl, Moore & Blank, Miami, for petitioner.
    Richard Smoak of Isler, Brown, Smoak, Harrison & Nabors, Panama City, for Aetna Cas. & Sur. Co.
    Edwin H. Underwood and Donald D. Gil-lis of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for New Hampshire Ins. Co.

      James E. Cobb and Harris Brown of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for respondents.
   ADKINS, Justice.

We have for review a decision by the First District Court of Appeal (International Patrol and Detective Agency; Inc., v. Aetna Casualty & Surety Company; New Hampshire Insurance Company; National Council on Compensation Insurance, 396 So.2d 774 (Fla. 1st DCA 1981)), which is certified to be in direct conflict with a decision of another District Court of Appeal. Paul v. Allstate Insurance Co., 380 So.2d 1307 (Fla. 2d DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

We approve the ruling by the First District Court of Appeal and adopt the reasoning therein as our own.

It is so ordered.

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

ALDERMAN, C. J., concurs specially with an opinion, with which BOYD, OVER-TON and McDONALD, JJ., concur.

OVERTON, J., concurs specially with an opinion.

ALDERMAN, Chief Justice,

concurring specially.

This case was certified to us by the First District as being in conflict with another decision. We accepted jurisdiction because the First District’s holding in the present case that costs for copies of depositions were properly taxed against International Patrol expressly and directly conflicts with the Second District’s holding in Paul v. Allstate Insurance Co., 380 So.2d 1307 (Fla. 2d DCA 1980), that costs for copies of depositions may not be taxed in any case.

In our present decision, we agree with the First District’s decision on this point and approve its rationale. The First District agreed with the reasoning of the Fourth District on this issue and said:

The Fourth District Court of Appeal, on the other hand, has held that Jones [Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952) ] did not set down an ironclad rule against taxing costs of copies of depositions and that such costs may be taxable if the copies served a useful purpose, which is a question within the discretion of the trial court. County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1978); Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA. 1979).
The present case is a good example of the expansive use of discovery in modern litigation (twelve depositions were made part of the record), and the active involvement of attorneys from several different areas of the state. In light of the realities of modern litigation, we feel that the better reasoned view is that costs of copies of depositions may be taxable when the facts warrant. We find that in this case the trial court’s award of the cost of one copy of each deposition, to be divided between the three appellees, was not an abuse of discretion.

International Patrol and Detective Agency, Inc. v. Aetna Casualty & Surety Co., 396 So.2d 774, 776-77 (Fla. 1st DCA 1981).

In the exercise of our discretion, we have not chosen to address or resolve the other issues posed by petitioner. There is no reason to permit petitioner a second appeal on these other issues. See Sanchez v. Wimpey, 409 So.2d 20 (Fla.1982).

BOYD, OVERTON and McDONALD, JJ., concur.

OVERTON, Justice,

concurring specially.

I concur with the majority opinion of Justice Adkins and the special concurring opinion of Justice Alderman. In exercising their discretion to determine the amount of costs in a proceeding, trial judges should only assess the least amount that is consistent with a reasonable method for providing counsel with the necessary information to properly try the cause.


author: PER CURIAM. EHRLICH, Justice,

text:
    THE FLORIDA BAR, Complainant, v. William T. MAYO, Respondent.
    No. 61354.
    Supreme Court of Florida.
    Aug. 26, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Dale E. Krout, Jr., Branch Staff Counsel, Tallahassee, of The Florida Bar, for complainant.
    John Paul Howard, Jacksonville, for respondent.
   PER CURIAM.

In this bar disciplinary action the referee has recommended that William T. Mayo be found guilty of violating Disciplinary Rule 7-102(A)(3). This recommendation followed a finding that, without any plausible reason or justification, Mayo concealed or knowingly failed to disclose trust instruments which were necessary “muniments of title” and which he was required by law to reveal. Finding that Mayo’s actions were not of a serious nature, but noting that Mayo’s obstinate refusal to do what he was clearly required to do caused needless legal expense, the referee recommended that William T. Mayo be publicly reprimanded by this Court. We accept and adopt the referee’s report and recommendation and, by publication of this opinion, reprimand Mr. Mayo for his failure to perform his legal duty.

Costs in the amount of $618.98 are assessed against William T. Mayo.

It is so ordered.

BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.

EHRLICH, J., concurs with an opinion.

ADKINS, A. C. J., dissents.

EHRLICH, Justice,

concurring.

I concur only because no review was sought by respondent. The Referee found that “[Mayo’s] actions were not of a serious nature” and that “no past disciplinary measure has come to the attention of the Referee.” In my opinion, a private reprimand is an adequate disciplinary measure to be applied in this case.