text:
    Ray Charles JACKSON v. STATE.
    4 Div. 968.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.

      C. Lawson Little, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Ray Charles Jackson was indicted by the Houston County Grand Jury for the August 15, 1981, rape of prosecutrix in violation of Ala.Code § 13A-6-61 (Amended 1977). Trial was had with the jury finding him guilty as charged. Subsequently, the trial court fixed his punishment at life imprisonment. From that conviction he now appeals in forma pauperis.

Appellant raises no issue on appeal as to the sufficiency of the state’s evidence. Nevertheless, a review of the record thoroughly convinces us of appellant’s guilt. Thus, only a short narration of the facts is necessary.

Sometime between 9:15 p.m. and 9:30 p.m. on August 15, 1981, the prosecutrix, who was babysitting Chad and Wesley Bell at their home in Ashford, heard a knock on the front door. She answered it and was immediately assaulted by appellant who was holding a pocket knife. Appellant entered the home and ordered the prosecutrix and the children to lie on the floor. Shortly thereafter, he escorted the prosecutrix to the bathroom and afterwards a bedroom. In both rooms, the prosecutrix was forced to perform sex acts with appellant. Throughout the one to one and one-half hour ordeal, the prosecutrix pled not to be hurt. Subsequently, appellant left only to be apprehended a few hours later at a home about one-quarter of a mile away from the Bell residence.

I

Contrary to appellant’s contention, his in-court identification by the prosecutrix was not tainted by an impermissibly suggestive four man show-up conducted about one to one and one-half hours after the incident.

At appellant’s hearing on his pre-trial motion to suppress, the prosecutrix testified that on the night of the attack, there was a lamp and television on in the living room of the Bell residence. She stated that the lighting in the living room and one of the bedrooms was sufficient for her to clearly view the assailant. She stated that his face was very close to hers for some time and it felt unshaven. She described him as a black male, about six feet tall, of medium build, wearing blue jeans and a vest without a shirt. The prosecutrix testified that her assailant remained in the house between one to one and one-half hours.

Subsequent thereto, the prosecutrix was asked to view four black males brought to the Bell residence. Present with her were her parents and Houston County Deputy Sheriff Leon Baxter. She testified that no one stated or suggested that her assailant was one of the men. An outside light was on and as the prosecutrix viewed each individual an additional light was shown on him. The prosecutrix viewed each individual separately. They were all of the same race, were of similar build and height, and had similar hair styles. One individual, appellant, could not be seen clearly by the prosecutrix as he would not turn his face directly toward her, distorted his facial features, held his head down and arms up to shield his face, limped as he walked, and would not maintain an erect posture. He was wearing shorts rather than blue jeans when the prosecutrix viewed him. Consequently, she requested to view him again and asked that he wear a vest the police had procured from the bedroom in which appellant had earlier been found. After the second viewing, the prosecutrix positively identified appellant as her assailant. He was then arrested. The prosecutrix testified that she based her identification not on the vest but rather on what she had observed during the attack.

Further testimony elicited at the hearing revealed that the four men voluntarily assented to accompany the police officers to the Bell residence and participate in the show-up after they had been informed of the reason for the request.

The appellant testified that he voluntarily participated in the show-up. He stated that in his statement given to the police, he had admitted that the vest found in the bedroom and worn at the show-up belonged to him. He stated that he was without the services of legal counsel at the time of the show-up.

Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Williamson v. State, 384 So.2d 1224 (Ala.Cr.App.1980). In assessing the reliability of the identification, the effect of suggestive procedures in the pre-trial confrontation and identification must be weighed against the indicators of the ability of the witness to make an accurate identification. The factors in assessing the witness’s ability to accurately identify include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, supra. These factors must be weighed in their totality and then balanced against the possible suggestiveness of the pre-trial identification procedures to determine the admissibility of the identification. Manson v. Brathwaite, supra. The totality of the circumstances must be examined. Stovall v. Deno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

The fact that appellant was viewed a second time is a consequence of his lack of cooperation and attempts to alter his appearance in the first instance. It is conceivable that had the prosecutrix been able to clearly view appellant the first time, a second showing would have been unnecessary. No error can be predicated on such. Peavy v. State, 368 So.2d 43 (Ala.Cr.App. 1979). In addition, the fact that appellant wore his vest during the second showing did not tend to unduly suggest him as the culprit. He was merely wearing the same or similar clothing he had on at the time of the crime. Brazell v. State, 369 So.2d 25 (Ala.Cr.App. 1978), cert. denied, 369 So.2d 31 (Ala.1979); Griffin v. State, 356 So.2d 723 (Ala.Cr.App.), cert. denied, 356 So.2d 728 (Ala.1978); Childers v. State, 339 So.2d 597 (Ala.Cr.App.), cert. denied, 339 So.2d 601 (Ala.1976); Fletcher v. State, 337 So.2d 58 (Ala.Cr.App.1976).

Moreover, when an in-court identification is shown to have a basis independent of any pre-trial identification or confrontation, it is properly admitted into evidence. Matthews v. State, 401 So.2d 241 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981); Thomas v. State, 399 So.2d 915 (Ala.Cr.App.1981); McLoyd v. State, 373 So.2d 1175 (Ala.Cr.App.), cert., denied, 373 So.2d 1185 (Ala.1979); and cases cited therein.

After a complete review of the record, we find nothing at the pre-trial confrontation to have been impermissibly suggestive so as to create a substantial risk of misidentification and thus taint the in-court identification of appellant by the prosecu-trix. Further, we find in the record an independent basis for the in-courf identification. Consequently, the trial court properly denied appellant’s motion to suppress. Thomas, supra; McLoyd, supra; Donahoo v. State, 371 So.2d 68 (Ala.Cr.App.), cert. denied, 371 So.2d 74 (Ala.1979); Speigner v. State, 369 So.2d 39 (Ala.Cr.App.), cert. denied, 369 So.2d 46 (Ala.1979).

II

Appellant has no constitutional right to counsel at a pre-indictment line-up. Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); King v. State, 395 So.2d 489 (Ala.Cr.App.1981); Williamson, supra; McGee v. State, 383 So.2d 881 (Ala.Cr.App.), cert. denied, 383 So.2d 884 (Ala.1980); Deloach v. State, 356 So.2d 222 (Ala.Cr.App.1977), cert. denied, 356 So.2d 230 (Ala.1978). Thus, appellant’s contention is without merit.

Ill

Appellant also challenges the identification made by eight year old Chad Bell, one of the boys the prosecutrix was babysitting on the night of the attack.

Initially, we find no abuse of the trial court’s discretion in finding Chad competent to testify. Noble v. State, 253 Ala. 519, 45 So.2d 857 (1950); Puckett v. State, 213 Ala. 383, 105 So. 211 (1925); Crenshaw v. State, 205 Ala. 256, 87 So. 328 (1921); Harville v. State, 386 So.2d 776 (Ala.Cr.App.1980); Roberson v. State, 384 So.2d 864 (Ala.Cr.App.), cert. denied, 384 So.2d 868 (Ala.1980); Pennington v. State, 57 Ala.App. 655, 331 So.2d 411 (1976); Hacker v. State, 31 Ala.App. 249, 15 So.2d 336, cert. denied, 244 Ala. 649, 15 So.2d 339 (1943); Ala.Code § 12-21-165 (1975).

At appellant’s in camera hearing held during the course of the trial, Chad testified that, during the early morning hours of August 16, 1981, he was asked to come outside of his house and look at someone to determine whether that person was the individual who had been at his house earlier that evening. Chad stated that no one suggested or told him that the person he was about to view was in fact the prosecutrix’ assailant. He stated one black male escorted by some police officers was exhibited. The individual was handcuffed and wearing the same vest Chad had earlier seen on the man who had been in the house. Chad ran to his mother and positively identified appellant as the assailant stating, “That’s him.” Chad stated that he did not know why appellant was handcuffed but thought he must have been in trouble. He testified that he did not identify appellant because of the vest or handcuffs but rather because he recognized his face.

Subsequent thereto, Chad had a second opportunity to view appellant at the county jail. He was accompanied by his mother, the prosecutrix and her parents. Appellant was the only person in the cell when Chad saw him. He did not remember whether anyone stated that the occupant of the cell was the person who had assaulted the pros-ecutrix, but stated that no one pointed appellant out to him. Due to the distance from which he viewed appellant, Chad asked his mother “if that was him” to which she affirmatively replied. Chad testified that he did not identify appellant because he was the only person in the cell.

Chad twice had the opportunity to see appellant in his residence on the evening of August 15. Both instances occurred in the living room area of the house where both a lamp and a television were on. On the second occasion when appellant was leaving, appellant asked Chad to shake his hand. The record is void as to the length of time Chad observed appellant in the house.

The instant question is governed by the standards set forth in Part I, supra of this opinion. In addition to that which we have previously stated, we note that there is no prohibition against a viewing of the suspect alone in what is termed a “one-man show-up” when such occurs near the time of the alleged offense. Matthews, supra; King, supra; Donahoo, supra; Peavy, supra. While a show-up by its inherent nature is suggestive because the witness is given no other choice, Brazell, supra; such is not per se violative of due process. The question is whether under the totality of the circumstances the identification was reliable. Cartee v. State, 390 So.2d 1121 (Ala.Cr.App.), cert. denied, 390 So.2d 1126 (Ala.1980). The fact that the suspect was in handcuffs is merely a factor to consider in determining reliability. Merely because an unusual number of policemen were present at the time of the pre-trial confrontation does not render the procedure so unduly suggestive as to violate due process. Pickett v. State (Ala.Cr.App. Ms. Mar. 2, 1982); King, supra; Cartee, supra.

The totality of the circumstances convinces us to the conclusion that the pre-trial show-ups were not so suggestive as to create a very substantial likelihood of misiden-tification. Consequently, the trial court properly denied appellant’s motion to suppress Chad Bell’s identification.

IV

Appellant contends that the vest taken from the bedroom in which he was found and subsequently used at the show-up was the product of an illegal search and seizure. He does not contend that the vest was improperly admitted into evidence as appellant himself moved for its introduction.

Houston County Deputy Sheriff Leon Baxter testified that he arrived on the scene of the assault around 12:14 a.m. on August 16. After being duly qualified in the training and handling of tracking dogs, he stated that he used two dogs to track the scent of the assailant. One was used as the primary or lead dog while the other was used as a backup. He stated that there were numerous tracks around the Bell residence. After the dog became familiar with the scent of the suspect, it led Deputy Baxter and his assistant to the home of an unknown black woman about one-quarter mile from the Bell residence.

Deputy Baxter followed the dog to the unlit house and onto the front porch where he knocked on the door. He was in uniform at the time. Subsequently, a black woman answered and Deputy Baxter asked her if her husband was home to which she negatively replied. He then inquired whether she had any sons, to which the woman affirmatively replied stating that two of them were inside and the other she had not seen since the night before. She stated that they had been home all evening. Deputy Baxter asked whether he could talk to them to which the woman assented. She left the front door only to return moments later with her two sons. Deputy Baxter stated that while the two boys were present, his tracking dog did not react to them, but rather attempted to go inside the house. Deputy Baxter then inquired whether there were any other black males inside the house to which the woman replied that there were three more in the rear bedrooms. Deputy Baxter asked if he could speak to them. He testified that he thought the woman would summon them as she had done with her sons. However, she told Deputy Baxter to go inside and talk to them.

Deputy Baxter went inside the house and to a bedroom where he awakened appellant, and asked him if he could talk to him to which appellant replied, “If I done anything, I was drunk.” He further asked appellant had he been anywhere that evening or what time did he come in to which appellant stated, “I haven’t been nowhere.” (R. 180) Another black male occupying the same room as appellant was awakened and asked similar questions as was the third individual found in another room. At that time Deputy Baxter saw, inter alia, a vest lying on the bed. He left appellant and the others inside while he went outside to talk to Lieutenant Frankie Paschal of the Houston County Sheriffs department. During their conversation, Deputy Baxter was informed that the assailant had been wearing a vest. Deputy Baxter testified that about thirty minutes after he had first entered the house, Lieutenant Paschal asked the woman would she mind if they searched the house to which she replied, “No, go ahead. I have nothing to hide.” (R. 181) Both officers entered the house and seized the vest earlier seen by Deputy Baxter as well as two pairs of shoes.

Deputy Baxter stated that no one was under arrest when the request was made of the four men to participate in a show-up. He stated that they all were informed that they did not have to go. Appellant did not object to participating. Deputy Baxter testified that he never had a description of the suspect while tracking him. He stated that he did not know the black woman’s name, did not ask her if she owned the house, and did not have a search warrant when he entered it. Deputy Baxter testified that he did not know who owned the vest when he first saw and later seized it.

Quite frankly, we fail to see the error complained of by appellant. Appellant himself moved for introduction of the vest into evidence that he had earlier attempted to suppress. The record established the reasonable inferences that he was not a member of the family residing at the home and had no proprietory or possessory interest in it. Further, it is arguable whether he had a legitimate expectation of privacy in the bedroom merely because he was found there asleep. Nevertheless, such is a relevant but not controlling or determinative factor in deciding one’s expectation of privacy. Lentini v. State, 406 So.2d 998 (Ala.Cr.App.1980), cert. denied, 406 So.2d 1003 (Ala.1981). It is clear that appellant had an interest in the property seized, but he did not assert such at his motion to suppress. Rather, the state established it.

Furthermore, under the test for determining whether one has standing to assert a violation of Fourth Amendment rights, United States v. Salvucci, 448 U.S. 82, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), it is doubtful that appellant had a legitimate expectation of privacy from governmental invasion in the area searched. See Collier v. State, 413 So.2d 396 (Ala.Cr.App.1981), affirmed, 413 So.2d 403 (Ala.1982).

Nevertheless, the record clearly establishes that the search of the home was done with Ms. MeCree’s consent. Thus, no search warrant was necessary. As was stated in Taylor v. State, 399 So.2d 881, 891 (Ala.1981):

“A search warrant is not required when the party in control of the searched premises gives his consent to the search, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The consent, however, must be ‘freely and voluntarily given,’ and the prosecution has the burden of proving voluntariness, Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Consent given after a claim of authority to search by a police officer is not valid, since he has in effect told the occupant of the house that he has no right to resist the search. ‘Where there is coercion there cannot be consent.’ 391 U.S. at 550, 88 S.Ct. at 1792. However, ‘knowledge of a right to refuse is not a prerequisite of a voluntary consent.’ 412 U.S. at 234, 93 S.Ct. at 2051. Although consent may not be coerced, either explicitly or implicitly, ‘[vjoluntariness is a question of fact to be determined from all the circumstances.’ 412 U.S. at 248-49, 93 S.Ct. at 2058-59. While knowledge of the right to refuse consent to a search, or lack thereof, is a factor to be considered in assessing volun-tariness, it is not determinative. 412 U.S. at 249, 93 S.Ct. at 2059.”

Consequently, we find no error in the trial court’s ruling on appellant’s motion to suppress.

V

Appellant asserts that the trial court erred in denying his motion for a continuance.

After the state had rested and appellant’s motion to exclude the state’s evidence had been denied, appellant made his motion to continue the case until that time when a witness he had subpoenaed would return from his vacation and thus become available. The record offers no other evidence to confirm the above statement of appellant’s counsel. Apparently, appellant had made his motion about one week prior to trial but because the state agreed to stipulate to admitting the witness’s report, the trial judge denied it. Appellant argued at trial that the stipulation would be inadequate as there were other matters to which the witness could testify that “might possibly clarify his report or explain it better.” (R. 357) No other showing was made concerning what the witness’s testimony would have been or whether it would have been of benefit to appellant. Nevertheless, appellant agreed to the stipulation and the trial court again denied his motion.

As was stated in Watson v. State, 389 So.2d 961, 964 (Ala.Cr.App.1980): “The rule is well settled that the granting or denial of a motion for continuance lies within the sound discretion of the trial court and will not be overturned absent a clear showing of abuse of that discretion.” (Citations omitted). A reversal of conviction because of the trial court’s refusal to grant a continuance requires “a positive demonstration of abuse of judicial discretion.” Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.), cert., denied, 372 So.2d 44 (Ala.1979).

Under the facts of the instant cause, we find no abuse of the trial court’s discretion in denying appellant’s motion. Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied, 398 So.2d 376 (Ala.1981); Clark v. State, 36 Ala.App. 159, 57 So.2d 375 (1951), reversed on other grounds, 257 Ala. 95, 57 So.2d 384 (1952).

VI

Appellant complains that a comment made by the state during its closing argument impermissibly referred to his failure to testify. Appellant did not take the stand and offered no witnesses other than the stipulated testimony previously discussed.

We quote the complained of comment: “MR. VALESKA: The witnesses for the State got up there and told you what happened out there. The State’s testimony, and this is important, the State’s testimony is uncontradicted—
“MR. LITTLE: Judge—
“MR. VALESKA: —uncontradicted—
“MR. LITTLE: Judge, I make an objection on that ground.
“THE COURT: Yes, sir. Make your argument.
“MR. LITTLE: I object to that argument, Judge, on the implication that my client has not taken the stand.
“THE COURT: I sustain the objection.
“MR. LITTLE: I’d ask for a mistrial.
“THE COURT: Your motion for a mistrial is overruled. Go ahead.” (R. 364)

While there appears to be some conflict as to what test should govern prosecutorial comments directed either directly or indirectly at the defendant’s failure to testify, Cf. Ex Parte Yarber, 375 So.2d 1231 (Ala.1979), with Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975) (where Yarber utilizes the virtual identification doctrine while Beecher had earlier disapproved of such in favor of a standard based upon “the possibility that a prosecutor’s comment could be understood by the jury as referenced to failure of defendant to testify .... ”), both would allow such a comment as that quoted above.

In the instant case, appellant pled not guilty thereby denying commission of the offense. No special defense was pled. His spontaneous statements, made to Deputy Baxter, indicated the possibility that other witnesses could exist to substantiate his plea. In addition, the above comment carried no negative import, but rather was a positive statement concerning what the state had brought forth in terms of proof as opposed to a reference negating what appellant had presented. See Padgett v. State, 45 Ala.App. 56, 223 So.2d 597, cert. denied, 284 Ala. 732, 223 So.2d 603 (1969). Furthermore, the comment was near identical to that expressly approved in Beecher.

Consequently, we hold the above comment does not refer to appellant’s failure to testify. Griffin v. State, 393 So.2d 523 (Ala.Cr.App.1981); Thompson v. State, 382 So.2d 1184 (Ala.Cr.App.1980); Cummings v. State, 374 So.2d 421 (Ala.Cr.App.1979); Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); Robinson v. State, 352 So.2d 11 (Ala.Cr.App.), cert. denied, 352 So.2d 15 (Ala.1977); Gissendaner v. State, 338 So.2d 1025 (Ala.Cr.App.), cert., denied, 338 So.2d 1028 (Ala.1976); Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183, cert. denied, 291 Ala. 802, 278 So.2d 198, cert. denied, 414 U.S. 1066, 94 S.Ct. 573, 38 L.Ed.2d 470 (1973); White v. State, 44 Ala.App. 312, 208 So.2d 222 (1968); and cases cited therein. Thus, appellant’s contention is without merit.

YII

Appellant contends that the trial court erred in refusing several written requested charges. (Vol. 3, p. 406-413).

The trial court gave an extensive oral charge to which no exception was taken. In addition, the trial judge gave 12 written requested charges. (Vol. 3, 394-405). As to the refused charges, we have carefully examined each of these and find that such were properly refused as being either affirmative in nature, incorrect statements of applicable law, argumentative under the evidence, and therefore invasive of the province of the Jury, or were fully and substantially covered in the trial court’s oral charge, or other given written charges. Therefore, their refusals were proper. Section 12-16-13, Code of Alabama 1975.

In addition the appellant made no objection or took no exception to their refusal.

This court is not required to review the merits of requested charges when the accused does not reserve any exceptions to the trial court’s refusal at the trial court level. Allen v. State (Ala.Cr.App.1981) Ms. November 24, 1981. The “automatic exception” rule in criminal cases is no longer the law in Alabama. Aden, supra.

We have examined each issue raised by appellant in brief. We find no error and therefore this cause is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . In their briefs, both appellant and the state refer to the woman as Ms. Eunice McCree, although no mention of her name was made at trial. However, her name does appear on the indictment as a witness for the state.

      . A trial judge other than the one presiding over appellant’s trial initially ruled on the above motion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. George A. ROUTH, Respondent.
    No. 58894.
    Supreme Court of Florida.
    Jan. 28, 1982.
    Rehearing Denied June 22, 1982.
    Richard T. Earle, Jr. of Earle & Earle, St. Petersburg; and Joseph C. Jacobs and Robert King High, Jr. of Ervin, Varn, Jacobs, Odom and Kitchen, Tallahassee, for respondent.
    Michael C. Whittington, Bar Counsel, Tampa, of The Florida Bar, for complainant.
   PER CURIAM.

This attorney-discipline proceeding is before the Court on the complaint of The Florida Bar. We have before us the report of a referee and the petitions of both parties for review thereof. The cause is an original proceeding brought pursuant to the Court’s jurisdiction over the discipline of attorneys. Art. V, § 15, Fla.Const.; Fla. Bar.Integr.Rule, art. XI, Rule 11.09.

The Bar brought the complaint against attorney George A. Routh in three counts. Count One charged him with violating the Florida Bar Integration Rule, article XI, Rule 11.02(2), (3)(a), and (3)(b), and the Code of Professional Responsibility, Disciplinary Rules 1-102(A)(3) and (A)(6) based on three felony convictions which arose out of a single criminal episode. Count Two charged respondent with violating Disciplinary Rules 7-102(A)(2), (A)(5), and (A)(8) in that he filed a false affidavit in a judicial proceeding. Count Three sought to place respondent on the inactive list for incapacity not related to the practice of law pursuant to the Florida Bar Integration Rule, article XI, Rule 11.01(4).

The referee made the following findings and recommendations:

Findings of Fact as to Each Item of Misconduct of which the Respondent is charged:
After considering all the pleadings and evidence before me, pertinent portions of which are commented upon below, I find:
As to Count I
1. The Respondent, George A. Routh is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. On May 27, 1976, Respondent was charged by Information filed in the Circuit Court for the Sixth Judicial Circuit of Florida, in and for Pinellas County, with the crimes of shooting into an occupied vehicle, aggravated battery, and aggravated assault. The three charges grew out of a single episode which occurred on May 23, 1976. Said crimes are felonies under the laws of Florida. On September 7, 1976, Counts II and III of the information were amended.
3. On September 3, 1976, Respondent withdrew from a plea of not guilty and entered a plea of guilty to the above charges, as amended.
4. On October 27, 1976, Respondent was adjudicated guilty as charged and sentenced to the custody of the Director of the Department of Offender Rehabilitation. No appeal was taken from the judgment. Respondent has served his sentence and his civil rights have been restored.
As to Count II
5. On May 10, 1976, Respondent, represented the personal representatives of the Estate of Robert E. Lehmann, deceased.
6. On or about May 10, 1976, Respondent, on behalf of such personal representatives, executed a document entitled “Objection to Affidavit of Young J. Simmons As To Amount Due Claude Cloniger and Blanche Cloniger” and an attached Affidavit. In these pleadings Respondent asserted that opposing counsel with knowledge or in a reckless manner, submitted a false affidavit and that Respondent’s affidavit accurately represented the amount owed.
7. On June 1,1976, a hearing was held before the Honorable William L. Walker, Circuit Judge in the Circuit Court for the Sixth Judicial Circuit of Florida, in and for Pinellas County. At the hearing, Respondent admitted not having any legal basis for the calculation set forth in his own Affidavit and failed to state any basis for asserting the falsity of the affidavit of opposing counsel.
8. The actual basis for correct calculation was known to or readily ascertainable by Respondent at the time he filed his pleadings.
9. At the hearing before this Referee, Respondent testified that, if the same situation were to present itself again, he would file an objection to the creditors’ claim.
As to Count III
10. On or about June 15, 1976, and on several dates thereafter, Dr. Jerome Ro-senblum examined Respondent and found that Respondent:
(a) had little regard for rules or for the rights of others.
(b) was unaware of the correctness or wrongness of his acts and had impaired judgment.
(c) was undisciplined.
(d) constituted a threat to society in terms of violating laws.
III. Recommendation as to whether or not the Respondent should be found guilty:
As to each count of the complaint I make the following recommendations as to guilt or innocence:
As to Count I
I recommend that the respondent be found guilty and specifically that he be found guilty of the following violations of The Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
(a) Rule 11.02(3)(a), The Integration Rule
(b) DR 1-102(A)(3), Code of Professional Responsibility
(c) DR 1-102(A)(6), Code of Professional Responsibility
As to Count II
I recommend that the respondent be found guilty and specifically that he be found guilty of the following violations of Disciplinary Rules of the Code of Professional Responsibility, to wit:
(a) DR 7-102(A)(l)
As to Count III
This count seeks placement of Respondent on inactive list under Rule 11.01(4) for incapacity not related to misconduct. I recommend that the respondent not be found to be incapable of practicing law because of physical or mental illness, incapacity or other infirmity. In view of the disposition recommended as to Counts I and II, it is believed that Count III is moot. However, if it is not moot, I recommend that respondent not be placed on the inactive list.
IV. Recommendation as to Disciplinary measures to be applied:
I recommend that the Respondent be suspended for a period of thirty-six months beginning November 8, 1976 and thereafter until he shall prove his rehabilitation as provided in Rule 11.10(3). I further recommend that since the suspension has continued for over three years, Respondent be required to satisfactorily pass the Florida bar examination.

The referee erroneously arrived at a suspension date of November 8,1976 by adding eleven days to the date of respondent’s felony conviction pursuant to article XI, Rule 11.07(2) of the Integration Rule. However, respondent timely filed a petition for modification and the suspension was therefore deferred until this Court entered an order on the petition on March 15, 1977. The Florida Bar, Re Routh, No. 50,637 (Fla. March 15, 1977).

The Florida Bar’s petition for review of the referee’s report asserts that respondent should be disbarred.

Respondent’s petition for review argues that he should have been allowed to present evidence of rehabilitation based on his conduct subsequent to the misconduct found in this proceeding. The referee declined to consider such evidence on the ground that rehabilitation is relevant in a reinstatement proceeding but not in a disciplinary proceeding. We agree with the referee. Reinstatement is a separate matter governed by article XI, Rule 11.11 of the Integration Rule. Rehabilitation is relevant in such a proceeding but was not relevant to any of the material issues of fact in this disciplinary proceeding.

We adopt the recommendation of the referee that respondent be suspended for three years, the suspension having commenced on March 15, 1977, and until he proves rehabilitation and successfully completes all three parts of the Florida bar examination. We also assess the costs of this proceeding against respondent in the amount of $379.00.

It is so ordered.

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


text:
    Kenneth GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 56903.
    Supreme Court of Florida.
    April 8, 1982.
    Rehearing Denied June 28, 1982.

      Leonard E. Ireland, Jr. of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Eighth Judicial Circuit in Bradford County. Appellant was convicted on two counts of first-degree murder and was sentenced to death. This Court has jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const.

The appellant was convicted of killing two young men during the course of a robbery of a convenience store on the night of September 10,1975. The indictment was filed on September 11, 1978. Glen Lund-gren, who worked at the store on U.S. 301 near Starke, was discovered lying on the floor behind the counter by some late-night customers; he was bleeding from a gunshot wound to the back of his head. Lundgren was taken to Shands Hospital in Gainesville where he died shortly after arrival.

The other victim was Keith Kirchaine, age sixteen, whose body was discovered the following day by the side of a road about three and one-half miles from the store. He was shot at least three times. There was testimony to establish that Kirchaine was visiting with Lundgren at the store when the robbery occurred.

The managers of the store, Thomas and Ernestine Gnagi, were called to the scene that night. Mrs. Gnagi examined the cash register tapes and determined that money had been taken. Mr. Gnagi determined that a pistol he kept at the store was missing. It was a black, .22 caliber revolver which Mr. Gnagi said was loaded when he left it at the store.

Willie James Bryant testified that he drove the appellant and Robert Hinson from Gainesville to Starke on the night of the robbery and murders. They went to the convenience store, Bryant said, and the appellant and Hinson went in. Then Bryant heard a shot. Hinson came out holding a brown paper bag. The appellant came out holding a gun in one hand and young Keith Kirchaine by the other. At appellant’s direction, Bryant drove the car down a road until appellant said to stop. Kirchaine pleaded not to be hurt; appellant struck him in the face. Finally, Bryant said, appellant dragged the boy off into the woods and shot him.

Alex Henry testified that in September, 1975, he was appellant Griffin’s friend and neighbor. On the morning of September 11, Henry heard the news of the robbery and murder on the radio. That afternoon, Henry said, Griffin came to him and said that he and Willie James Bryant had robbed the store in Starke and that he, Griffin, had shot the two victims. Griffin showed Henry a long, dark-colored .22 caliber revolver. Henry testified that the gun Griffin displayed to him looked like the drawing that depicted Thomas Gnagi’s missing gun.

After the presentation of evidence, the court instructed the jury. The judge instructed the jury on felony murder, but neglected to instruct on the elements of the crime of robbery. After the jury retired to deliberate, the judge asked counsel for both sides whether they had any objections or requests for additional instructions. Neither party objected to the failure to instruct on the elements of the underlying felony of robbery.

After several hours of deliberation, the jury sent the trial judge a note which asked, “Judge, if a murder is committed during a robbery, is that automatically first-degree murder?” After consulting counsel for both sides, the judge decided that the best response to this inquiry would be to re-instruct the jury on felony murder, and then did so.

Within a few minutes of re-reading the instruction on felony murder, the judge realized that he had neglected from the beginning to instruct the jury on the underlying felony of robbery. Over defense counsel’s objection the court, pursuant to Florida Rule of Criminal Procedure 3.420, recalled the jury to the courtroom and gave the previously omitted instruction. Then the jury again withdrew to deliberate.

Appellant’s counsel moved for a mistrial arguing that since the elements of the crime of robbeiy were not considered by the jury during its first few hours of deliberation, the later instruction on robbery placed undue emphasis on the charge of felony murder. Defense counsel also presented the testimony of the sheriff who said that the bailiff told him that prior to the instruction on the elements of robbery, the jury had indicated that they had reached a verdict. Defense counsel asked the court to question the jurors and determine whether they had reached a decision prior to being again recalled and instructed on robbery. The court denied both motions. Then the jury returned with a verdict of guilt on both charges of first-degree murder.

The appellant raises several questions regarding the propriety of the jury instructions. First, he argues that the court erred in twice instructing on felony murder without including the elements of the underlying felony of robbery. He cites State v. Jones, 377 So.2d 1163 (Fla.1979), and Robles v. State, 188 So.2d 789 (Fla.1966), which hold that in a felony murder case, there must be an instruction on the underlying felony. The present case is distinguishable because here the omission was inadvertent and when the judge discovered his mistake, he immediately acted to correct it. Florida Rule of Criminal Procedure 3.420 provides that the court may recall the jury to the courtroom to correct an erroneous instruction. This authority encompasses the giving of additional instructions that were inadvertently omitted.

Appellant also argues that the court erred when it re-instructed on felony murder without also re-instructing on premeditated murder. Although repeated instructions must be .complete, they are matters within the discretion of the trial judge. Here the re-instruction on felony murder was in response to a specific question from the jury. It was complete in itself even though the judge did not repeat all of his instructions. Under these circumstances, the court’s action was not an abuse of discretion. See Henry v. State, 359 So.2d 864 (Fla.1978).

Next appellant contends that the instruction on the elements of robbery was incomplete in that it was not accompanied by an instruction on the presumption of innocence and because it unduly emphasized the felony-murder feature of the instructions and evidence. At the trial, appellant did not ask for repetition of the instruction on the presumption of innocence so that argument will not be considered now. Castor v. State, 365 So.2d 701 (Fla.1978); Williams v. State, 285 So.2d 13 (Fla.1973); Fla.R.Crim.P. 3.390(d). As in Castor, the jury had already once been fully instructed on the matter in question. Moreover, the court told the jury to consider the additional instruction (on the felony of robbery) along with all the instructions previously given. Appellant’s “undue emphasis” argument is without merit. The judge recalled the jury to instruct on robbery as soon as he became aware of the inadvertent omission. That the instruction was givén four hours after the jury began deliberating is insufficient without more to show that the instruction placed an undue emphasis on the felony murder theory. See Weirum v. RKO General, Inc., 123 Cal.Rptr. 468, 539 P.2d 36, 15 Cal.3d 40 (1975) (giving previously omitted instruction on third day of deliberations was proper).

Appellant’s final argument concerning jury instructions is that the court erred in not instructing on second-degree felony murder. However, appellant, did not request such an instruction, nor did he object to its omission. Therefore the issue is not properly presented to us and we will not consider it. Dorminey v. State, 314 So.2d 134 (Fla.1975); Williams v. State, 285 So.2d 13 (Fla.1973); Moore v. State, 299 So.2d 119 (Fla.3d DCA 1974); Fla.R.Crim.P. 3.390(d).

Appellant contends that the court erred in denying his motion to dismiss the indictment charging him with premeditated murder. He argues that the practice of allowing the state to proceed on alternative theories of premeditation and felony murder without specifying which theory it will proceed on denies due process of law. This argument is without merit. Knight v. State, 338 So.2d 201 (Fla.1976).

Finally, appellant argues that it was error to enter judgment on the verdict announced in court since it was not the first verdict reached by the jury. For a verdict to become valid, however, it must be announced in the courtroom in the presence of the jurors and the accused. Brewer v. State, 53 Fla. 1, 43 So. 423 (1907). Even if we assume the truth of the factual basis of this argument — that the jurors had previously reached a decision — the fact that there was an earlier determination by the jury does not necessarily call the validity of the later verdict into question. If it appears that a mistake or oversight needs to be corrected, the court may send the jury back for further deliberations and with additional instructions before receiving its determination as a verdict. 89 C.J.S. Trial § 475 (1955); see Jordan v. Yankey, 260 Md. 237, 272 A.2d 46 (1971).

We turn now to the question of the sentence of death. First, appellant claims that the imposition of a death sentence upon a jury verdict rendered after a trial fraught with multiple judicial errors would be a denial of due process of law. Since we have considered each of appellant’s contentions of error and found them to be without merit, we reject this argument. We also reject appellant’s arguments that the capital felony sentencing law is unconstitutional on its face or as applied. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

With regard to the murder of Glen Lund-gren, the trial judge found three statutory aggravating circumstances: that the appellant was previously convicted of a felony involving violence, § 921.141(5)(b), Fla.Stat. (1975), that at the time of the capital felony, the appellant was on parole under a sentence of imprisonment, § 921.141(5)(a), and that the capital felony was committed in the course of a robbery. § 921.141(5)(d). The judge found no mitigating circumstances.

With regard to the murder of Keith Kir-chaine the judge found the above-listed aggravating circumstances plus two more: that the capital felony was committed for the purpose of avoiding arrest and prosecution, § 921.141(5)(e), and that the capital felony was especially heinous, atrocious, and cruel. § 921.141(5)(h). The court found no mitigating circumstances.

That the appellant was previously convicted of a felony involving violence to the person of another was established by showing his conviction of the crime of manslaughter. It was also shown that appellant was on parole at the time of the murders, and this establishes the “under sentence of imprisonment” circumstance. Aldridge v. State, 351 So.2d 942 (Fla.1977), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978).

There was also ample evidence that the convenience store was robbed and that the murders were committed while appellant was engaged in or in flight after commit ting the robbery.

That the murder of Kirchaine was committed for the purpose of avoiding or preventing arrest was also adequately shown. Kirchaine was a potential witness who could have identified appellant and testified about the robbery and the murder of Lundgren. Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981).

Finally, the finding that the murder of Kirchaine was especially heinous, atrocious, or cruel is supported by the evidence that the victim was abducted from the store and shot several times over his pleas for mercy. See, e.g., Knight v. State, 338 So.2d 201 (Fla.1976).

The jury recommended death. Since there were no mitigating circumstances, it is clear that the appropriate punishment for each of these first-degree murders with multiple aggravating circumstances is death. We affirm the judgments of conviction and the sentences of death.

It is so ordered.

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


author: McDONALD, Justice.

text:
    CITY OF LAKE WALES, Florida, Petitioner, v. LAMAR ADVERTISING ASSOCIATION OF LAKELAND, FLORIDA, Respondent.
    No. 60635.
    Supreme Court of Florida.
    April 8, 1982.
    Rehearing Denied June 28, 1982.
    Robin Gibson of Gibson & Connor, Lake Wales, for petitioner.
    Michael D. Martin of Martin & Martin, Lakeland, for respondent.
    Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for City of St. Petersburg, amicus curiae.
    Gerald S. Livingston of Livingston & Laubach, Orlando, for Florida Outdoor Advertising Ass’n, Inc., amicus curiae.
    Thomas M. Harris of Harris, Barrett & Dew, St. Petersburg, for Metromedia, Inc., amicus curiae.
    John M. McNatt, Jr. and J. Stephen O’Hara, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for The Outdoor Advertising Ass’n of Florida, ami-cus curiae.
    Talbot D’Alemberte and Jeffrey Bercow of Steel, Hector & Davis, Miami, arid Eric J. Rubin of Rubin & Winston, Washington, D. C., for Ackerley Communications of Florida, Inc., amicus curiae.
   McDONALD, Justice.

The Second District Court of Appeal has certified the following question as being of great public importance:

Can a municipality separately classify off-site advertising signs and on-site signs solely on the basis of aesthetics, thereby restricting the size of off-site signs?

City of Lake Wales v. Lamar Advertising Association, 399 So.2d 981, 987 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. We answer the question in the affirmative.

In March 1978 Lake Wales amended its sign ordinance to prohibit all off-premises signs. Prior to this amendment, the city’s sign code permitted off-site signs, but limited their size to 200 square feet. Lamar is in the business of installing and maintaining outdoor advertising signs, specifically 300-square-foot billboards that carry both local and nationally distributed advertisements. In May 1978 Lamar applied to the city for a permit to install a 300-square-foot billboard on a leased site in a commercially zoned area of Lake Wales. The city denied the application.

Lamar sued for issuance of the permit, and the trial court held the ordinance unconstitutional. Pursuant to the court’s order to consider amending the ordinance, the city again revised its sign code. The amendment permitted off-site signs in commercial and industrial districts and limited their size to 200 square feet. The parties submitted the new ordinance to the trial court by stipulation. The court held it unconstitutional, finding the ordinance both unreasonable and discriminatory.

On appeal the city challenged two aspects of the judgment: (1) holding the 200-square-foot limit unconstitutional and (2) ruling that the state Department of Transportation’s Highway Beautification Program preempted municipal billboard regulations. The district court held that the state beautification program had not preempted local regulation, but upheld declaring the ordinance unconstitutional. Relying on Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960), as did the trial court, the district court found “no valid reason for distinguishing between billboards and on-site advertising signs.” 399 So.2d at 985. Recognizing a trend toward change in this area of the law, however, the court certified the question set out above.

Several months after the issuance of the instant district court decision, the United States Supreme Court released its opinion in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). San Diego enacted an ordinance prohibiting outdoor advertising display signs except for on-site signs and those fitting within twelve specified categories. With two justices concurring in the judgment, the court’s plurality found that the ordinance violated the first amendment by impermissibly affording more protection to commercial speech than to noncommercial speech.

In its exhaustive and comprehensive opinion leading to striking down San Diego’s ordinance, the plurality sustained the distinction between off-site and on-site signs as set out in Suffolk Outdoor Advertising Co., Inc. v. Hulse, 43 N.Y.2d 483, 373 N.E.2d 263, 402 N.Y.S.2d 368 (1977), appeal dismissed, 439 U.S. 808, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978). In Suffolk the New York Court of Appeals upheld a town ordinance totally banning off-premises or nonaccessory billboards. Because the ordinance did not attempt to regulate the content of the signs, regulating only the place and manner of their maintenance, the court found no first amendment violation. The court went on to find that regulation of outdoor advertising for aesthetic purposes alone is a valid exercise of the police power and that the ordinance in question met the two-part test of having a valid basis and of being reasonably related to the objective for which it was enacted.

Prior to Sunad, this Court had recognized that there is a relationship between signs and the general welfare and well-being of a community from the standpoint of aesthetics. Dade County v. Gould, 99 So.2d 236 (Fla.1957); Merritt v. Peters, 65 So.2d 861 (Fla.1953). See City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941). Indeed, in Merritt this Court ruled that the size of signs could be restricted on the basis of aesthetics alone. Sunad followed this line of reasoning, and the Court agreed that aesthetic considerations can be just cause for regulating signs.

The Sunad Court, however, refused to recognize any aesthetic difference between on- and off-site signs. As pointed out by the district court in its well-documented opinion, numerous jurisdictions have gone the opposite direction. We find this Court’s refusal in Sunad to recognize an aesthetic difference between on-site and off-site signs to be contrary to the majority and better-reasoned view, and we recede from that holding. We agree that “[zjon-ing solely for aesthetic purposes is an idea whose time has come; it is not outside the scope of the police power.” Westfield Motor Sales Co. v. Town of Westfield, 129 N.J.Super. 528, 539, 324 A.2d 113, 119 (1974).

Cities have the authority to take steps to minimize sight pollution and, if in doing so they find it reasonably necessary to make a distinction between on-site and off-site signs, there is no constitutional impediment preventing that distinction. We therefore answer the district court’s question in the affirmative, and, while the district court acted responsibly by following the decisions of this Court, we now disapprove that portion of the opinion dealing with the question, and remand for reconsideration in light of our answer. We approve the district court’s holding that the state highway beautification program does not preempt municipal regulations which establish more stringent requirements than those set out in chapter 479, Florida Statutes (1979).

It is so ordered.

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

ADKINS, J., dissents.

      . The categories included, among other signs, governmental signs, religious symbols, and time-temperature-news signs. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 2886, 69 L.Ed.2d 800 (1981).

      . We find the instant ordinance narrower than that of San Diego and, therefore, closer to the ordinance in Suffolk. The text of the Lake Wales billboard ordinance is set out in 399 So.2d at 982 n.2.

      .Numerous jurisdictions besides New York have addressed regulations prohibiting advertising signs with many cases collected at An-not., 81 A.L.R.3d 486 (1977).

      . 399 So.2d at 985.


author: PER CURIAM. BOYD, Justice,

text:
    William Lanay HARVARD, Appellant, v. STATE of Florida, Appellee.
    No. 47052.
    Supreme Court of Florida.
    April 15, 1982.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Chief Asst. Public Defender and Richard B. Greene, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for appellant.
    Jim Smith, Atty. Gen. and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a death sentence which was reimposed upon appellant after a resentencing hearing pursuant to an order of this Court contained in Harvard v. State, 375 So.2d 833, 835 (Fla.1978) (on rehearing). We have jurisdiction under article V, section 3(b)(1), Florida Constitution. We affirm.

To properly address the issues, it is necessary to establish chronologically the events culminating in this proceeding. Appellant was convicted in 1974 of first-degree murder for the shooting death of his second ex-wife, Ann Bovard. The facts of this murder, described in more detail in our original opinion, reflect that appellant waited in his automobile for Ms. Bovard to leave her place of employment, then followed her for some distance, pulled alongside her car, and discharged a shotgun blast into her neck, killing her instantly. The jury recommended the death penalty and the trial judge agreed, imposing the death sentence after concluding that no mitigating circumstances existed to outweigh the applicable aggravating circumstances.

While this case was pending on appeal before this Court, the United States Supreme Court, in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), decided that it is a denial of due process for the death sentence to be imposed if the trial judge, in weighing the aggravating and mitigating circumstances of the case, considers confidential information which the defendant had no opportunity to deny or explain. As a result of this U. S. Supreme Court decision, this Court directed all trial judges in the state to advise the Court whether they had imposed the death sentence in consideration of any information not known to the defendants. The trial judge in the instant case responded that he had, in fact, considered a confidential portion of the presentence investigation report and information regarding appellant’s military record, furnished by the United States Marine Corps, which had not been made available to appellant or his counsel.

We affirmed the conviction of appellant, but, to comply with the Gardner decision, we vacated the death sentence and remanded the case for resentencing, stating that the hearing would be

without the necessity of convening an advisory jury, but with directions to provide counsel for the state and the defendant an opportunity to explain, contradict, and argue regarding the relevance, materiality, and import of the confidential information and military history, as well as other matters properly considered by the trial court concerning appellant’s sentence. ...

Harvard, 375 So.2d at 835. The trial judge proceeded in accordance with this direction and, at the conclusion of the resentencing proceeding, reimposed the death sentence. In this appeal, appellant argues that the Gardner remand resentencing procedure denied him due process of law.

Appellant first attacks the procedures used by the trial judge in reimposing the death sentence, arguing that the nine-month delay between the announcement of the sentence at the conclusion of the hearing and the issuance of the written final judgment of resentencing demonstrates that the trial judge failed to properly weigh the aggravating and mitigating factors. We find no reversible error in the manner in which the trial judge rendered his decision, although we suggest that the announcement of the judge’s decision and the filing of written findings should be done simultaneously. The judge reimposed the death sentence after considering all of the information available to him, including the evidence presented at resentencing. His conclusion that the death sentence was again appropriate clearly indicates that his finding is based upon the failure of the defense to present sufficient evidence at resentencing to rebut the information contained in the confidential portion of the presentence investigation report or in the military records. The written order expressly states that the defendant had failed to show harm or errors in the confidential matters considered in the original sentencing procedure. The evidence in this record not only confirms that finding, but it also reflects that the confidential information was primarily cumulative in light of the evidence actually presented at the original sentencing hearing. We find no error.

The second error alleged by appellant is the trial judge’s refusal to assign the resentencing hearing to a new judge. Appellant argues that because the original trial judge considered confidential material in imposing the first death sentence, he could have been influenced at resentencing by this improper information and by his prior ruling. We reject this argument. This case was remanded to comply with the rule announced in Gardner, and nothing in Gardner requires the assignment of a new judge to conduct the resentencing procedures. Furthermore, trial judges are routinely made aware of information which may not be properly considered in determining a cause. Our judicial system is dependent upon the ability of trial judges to disregard improper information and to adhere to the requirements of the law in deciding a case or in imposing a sentence. Alford v. State, 355 So.2d 108 (Fla.1977). The written judgment of resentencing in this case is detailed, logical, and fully supported by the record.

Appellant next claims that, at resen-tencing, the trial judge erroneously placed limitations on his presentation of evidence concerning the events which resulted in his 1969 conviction of a felony involving violence to his first wife’s sister. This conviction constitutes a statutory aggravating circumstance under section 921.141(5)(b), Florida Statutes (1979). At the original sen-tenting hearing in 1974, the state presented evidence of the aggravated assault conviction, consisting of the testimony of the victims in the incident, Betty Ann Phillips (Harvard’s first wife) and her sister, Mary Jane Sweat. Ms. Phillips described the attack in her 1974 testimony:

A Well, we arrived at the house and we walked in and I had noticed the kids’ suitcase sitting in the hall and knew something was wrong and we both just looked at each other. About that time Mr. Harvard stepped out of the side closet and he had a small pistol in his hand and he looked at me and said, “I told you the next time you took me back to court I would kill you” and Mary—
Q Is that your sister?
A They started talking about his mother and I had talked to Mr. Harvard, too, about if I wanted us to go back together he would. Just by talking to him, I knew what he was there for, and they kept on, Mary, arguing about his mother, that he told her that she had called him and told her things that weren’t true and Mary said she called his mother and told her about how he was acting. And that was all that she had said to his mother. And, about that time, Mr. Harvard moved his hand up and shot her right in the face and I had screamed and Mary took off for the front door and he shot her again, going out the door. And then I ran out the back door and, about that time, I was standing there beside the carport where I was and he pushed me down to the ground and I remember his foot going on my back and that is all I remember.
Q Were you shot?
A Yes, sir.
Q Where?
A On the top of the head.

This testimony is reflected in the original sentencing order and in the first opinion of this Court, although neither the state nor the appellant brought to the attention of the tnal court or of this Court in the original appeal the fact that the' offense to which appellant pleaded guilty was the assault against his sister-in-law rather than an assault against his first wife. The trial judge corrected that error in his findings on resentencing. In the 1974 hearing, appellant testified in his own behalf regarding the incident, characterizing the shootings as accidental. The confidential presentence investigation report also included a summary of the events surrounding the Jacksonville incident which is consistent with the testimony at the original sentencing hearing.

Appellant complains that he was denied due process in the second sentencing hearing because the trial judge refused to admit some portions of the testimony offered by appellant’s former attorney relative to the 1969 proceeding. The record shows that the trial judge liberally allowed appellant to present considerable testimony and evidence concerning the assault charge. Appellant testified in his own behalf, was allowed to present the testimony of his former lawyer, and was also allowed to introduce an unauthenticated transcript of the 1969 preliminary hearing. In his testimony, appellant again principally disagreed with the characterization placed on these 1969 shootings by both victims’ testimony and in the summary contained in the presentence investigation report. He admitted he shot his first wife and her sister, but excused his actions in part because of what he perceived as the misconduct of these women.

To a limited extent, the trial judge allowed appellant’s 1969 attorney to testify concerning his recollection of the inconsistencies in the testimony presented by the first wife at the preliminary hearing in 1969 as compared to her testimony at the sentencing hearing in 1974. In his resentenc-ing order, the trial judge directly addressed this asserted impeachment of the first wife’s testimony in the 1974 sentencing proceeding, stating:

Such impeachment should have been done at the time of trial and it therefore appears that this was a wrongful attempt to belatedly impeach evidence presented by the State to the advisory jury. The Supreme Court’s Remand was not for this purpose. As to the testimony contained in transcript of the proceedings of the probable cause hearing before the Justice of the Peace in Jacksonville in 1969, (more than five years earlier than the testimony of the former wife and the former sister-in-law during the bifurcated sentencing phase), this Court finds it to be substantially (and remarkably so for the passage of time involved) consistent and uncontradicting.

This Court’s remand for resentencing was for the purpose of redressing a Gardner violation. Under our order, the trial judge was obligated to consider the evidence offered by appellant to explain, contradict, or rebut information which had been previously undiscloséd to appellant or his counsel. We conclude that the trial judge went beyond what was necessary in allowing appellant a full opportunity to present evidence at the resentencing hearing in rebuttal of the confidential information previously considered; we find no error.

In his final assertion of error, appellant argues that the aggravating factors of heinous, atrocious, and cruel and of a previous, conviction of a violent felony were improperly applied and that the trial judge failed to adequately consider mitigating circumstances. The conclusion that this murder was heinous, atrocious, and cruel was based upon the following analysis in the resen-tencing order:

While the defendant and Ann Bovard had been divorced approximately two months, they had been separated for several months, and during the separation the defendant had engaged in a series of harassing actions. In addition, the defendant enclosed in a Christmas card he sent to Ann Bovard in December, 1973, a note saying, “You will never see Christmas.” In January, 1974, after the divorce, the defendant told a coworker that he would “do anything to get her out of his hair.” On the night of the killing, February 16, 1974, the defendant waited outside of his second former wife’s place of employment, and when she left he followed her for approximately ten miles to the entrance of the subdivision in which Ann Bovard lived, where he pulled up close beside her apparently momentarily stopped vehicle and with a 12-gauge shotgun shot her in the neck with a shot shell loaded with pellets. The blast tore away a portion of her neck, and she apparently died almost instantly. Such activities (the waiting, the following, and the shooting from a ear window) clearly demonstrates that this premeditated homicide was a calculated and cold blooded execution. Such killing was done without any provocation on the part of the victim.

Appellant argues that this homicide was not especially heinous, atrocious, or cruel, as described in section 921.141(5)(h), Florida Statutes (1979), and as interpreted by this Court, principally because there was instantaneous death from gunshot wounds with no “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. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). We agree with the trial judge, however, and find that appellant’s lying in wait for and stalking of Ms. Bo-vard, compounded by appellant’s previous harassment of her, constitute sufficient “additional acts” to justify application of the heinous, atrocious, or cruel aggravating factor.

Appellant also claims that the second aggravating factor, the aggravated assault conviction, should not be used to support the death sentence under the circumstances of the incident as he relates them. Appellant was afforded a full opportunity at the resentencing hearing to present evidence about the incident, and he does acknowledge that he was convicted in 1969 of aggravated assault. This conviction clearly is a proper aggravating circumstance for the trial judge to consider. § 921.141(5)(b).

We agree with the trial judge’s conclusion that no mitigating circumstances existed sufficient to outweigh the aggravating factors in this case and find that the reimposed sentence was based on reasoned judgment. Holmes v. State, 374 So.2d 944 (Fla.1979). See also Palmes v. State, 397 So.2d 648 (Fla.1981). Further, we reject appellant’s attempt to seek review of issues in this proceeding which could have been raised in the 1977 appeal. The reimposition of the death sentence is affirmed.

It is so ordered.

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

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

For the reasons I stated when this case was originally before the Court on appeal, Harvard v. State, 375 So.2d 833, 835 (Fla.1977), I dissent to the affirmance of the sentence of death and would direct that appellant be sentenced to life imprisonment without eligibility for parole for twenty-five years.


author: McDONALD, Justice. ALDERMAN, J.,

text:
    GROSSMAN HOLDINGS LTD., et al., Petitioners, v. George V. HOURIHAN, and Katrina A. Hourihan, Respondents.
    No. 60692.
    Supreme Court of Florida.
    April 15, 1982.
    Rehearing Denied June 28, 1982.

      Alan T. Dimond and Rudolph F. Aragon of Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, Miami, for petitioners.
    Wilson E. Hodge, Homestead, for respondents.
    Alan S. Becker and Charles R. Morgen-stein of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for amicus curiae.
    Stephen W. Metz, and Robert M. Rhodes and James C. Hauser of Messer, Rhodes & Vickers, Tallahassee, for Florida Home Builders Ass’n, amicus curiae.
   McDONALD, Justice.

We have for review Hourihan v. Grossman Holdings Ltd., 396 So.2d 753 (Fla.3d DCA 1981), which conflicts with Bayshore Development Co. v. Bonfoey, 75 Fla. 455, 78 So. 507 (1918), and Oven Development Corp. v. Molisky, 278 So.2d 299 (Fla. 1st DCA 1973), regarding the proper measure of damages for breach of a construction contract. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and disapprove the measure of damages applied by the third district in the instant case.

Late in October 1978 the Hourihans contracted with Grossman Holdings to purchase a house to be built in a planned development. Both the model and the office drawings showed the house with a southeast exposure, and the contract stated that Grossman would construct the house “substantially the same” as in the plans and specifications at the seller’s office or as the seller’s model. In December a new drawing went on display in the Grossman offices. It showed, among others, the Hourihan’s lot and their soon-to-be-built house; unfortunately, the house in the new drawing faced the opposite way from what they expected and wanted.

The Hourihans brought this discrepancy to the attention of Grossman’s employees and remonstrated against construction of a mirror image of the house they had contracted for. In spite of the Hourihan’s objections, the contractors refused to change their plans and began constructing the house depicted in the December drawing. The Hourihans then sued in circuit court for breach of contract.

After a bench trial, the court found that Grossman had breached its contract. The court refused to award damages, however, finding that specific performance would be economically wasteful and out of proportion to the good to be attained and that the value of the house had increased substantially since the date of the contract. The district court agreed with the trial court’s finding that the contract had been breached, but found that it had applied the incorrect measure of damages. Relying on Edgar v. Hose a, 210 So.2d 233 (Fla.3d DCA 1968), the third district held that the unreasonable economic waste doctrine does not apply to residential construction. It further found that Grossman’s willful and intentional failure to perform according to the plans and specifications nullified its claim of substantial compliance with the contract. The court found the proper damages to be that amount necessary to reconstruct the dwelling to make it conform to the plans and specifications and remanded for a new trial on damages.

Grossman contends that Bayshore Development and Oven Development state the proper rule for determining the measure of damages for improperly constructed residences. These cases hold that the proper measure of damages is the difference in value between the building as constructed and as it should have been constructed. Grossman claims that subsection 346(l)(a) of the Restatement (First) of Contracts (1932) supports the diminution of value theory and urges this Court to adopt the Restatement as this state’s law regarding damages for breach of a construction contract.

Subsection 346(l)(a) of the Restatement provides as follows:

(1) For a breach by one who has contracted to construct a specified product, the other party can get judgment for compensatory damages for all unavoidable harm that the builder had reason to foresee when the contract was made, less such part of the contract price as has not been paid and is not still payable, determined as follows:
(a) For defective or unfinished construction he can get judgment for either
(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or
(ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.

The comment on subsection 346(l)(a) states:

The purpose of money damages is to put the injured party in as good a position as that in which full performance would have put him; but this does not mean that he is to be put in the same specific physical position. Satisfaction for his harm is made either by giving him a sum of money sufficient to produce the physical product contracted for or by giving him the exchange value that that product would have had if it had been constructed. In very many cases it makes little difference whether the measure of recovery is based upon the value of the promised product as a whole or upon the cost of procuring and constructing it piecemeal. There are numerous cases, however, in which the value of the finished product is much less than the cost of producing it after the breach has occurred. Sometimes defects in a complete structure cannot be physically remedied without tearing down and rebuilding, at a cost that would be imprudent and unreasonable. The law does not require damages to be measured by a method requiring such economic waste. If no such waste is involved, the cost of remedying the defect is the amount awarded as compensation for failure to render the promised performance.

Subsection 346(l)(a), therefore, is designed to restore the injured party to the condition he would have been in if the contract had been performed. This aim corresponds with general Florida law. See Campbell v. Rawls, 381 So.2d 744 (Fla. 1st DCA 1980); Lake Region Paradise Island, Inc. v. Graviss, 335 So.2d 341 (Fla.2d DCA 1976). We adopt subsection 346(l)(a) as the law in Florida regarding breaches of construction contracts.

Applying subsection 346(l)(a) to the instant case, we find that the district court reached an incorrect conclusion. The subsection itself makes no distinction between residential and nonresidential construction. Indeed, the illustrations contained in the Restatement deal with both types of buildings. We disagree with the district court’s conclusion that the rule as enunciated in subsection 346(l)(a)(ii) is applicable only to commercial buildings.

Grossman also complains that the district court’s ruling awards damages that are punitive in nature. Punitive damages are not recoverable for breach of contract, but where the acts constituting the breach also amount to a cause of action in tort, punitive damages may be recovered. Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976); Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957). The Houri-hans, however, presented only the breach of contract issue to the district court. The amount of compensatory damages flowing from a breach of contract is not affected by the manner of the breach.

Turning to the trial court’s judgment, we agree in part and disagree in part with its findings. The record supports the trial court’s finding that reconstructing the house would result in economic waste, and we will not disturb this finding. On the other hand, we find the trial court’s refusal to consider awarding damages because of the then-current value of the house to be incorrect.

Damages for a breach of contract should be measured as of the date of the breach. National Communications Industries, Inc. v. Tarlini, 367 So.2d 670 (Fla. 1st DCA 1979); Lake Region Paradise Island, Inc. v. Graviss, 335 So.2d 341 (Fla.2d DCA 1976). Fluctuations in value after the breach do not affect the nonbreaching party’s recovery. Here, it may be possible to demonstrate a difference in value as of the date of delivery between the house the Hourihans contracted for and the house that Grossman built. If such difference exists, the Hourihans should have the opportunity to prove it on remand and recover that amount as damages.

We therefore disapprove the measure of damages applied by the district court, but we agree that the case should be remanded for a new trial on damages.

It is so ordered.

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

ALDERMAN, J.,

dissenting:

I would approve the decision of the District Court of Appeal.

      . Similar provisions are contained in Restatement (Second) of Contracts § 348(2) (1981), but we prefer the language in Restatement (First).

      . Several Florida courts have issued opinions which, in essence, apply subsection 346(l)(a), but without mentioning the Restatement. Temple Beth Sholom v. Thyne Constr. Corp.,
        399 So.2d 525 (Fla.2d DCA 1981); Deltona Corp. v. Jannotti, 392 So.2d 976 (Fla. 1st DCA 1981); Gory Associated Indus., Inc. v. Jupiter Roofing & Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978); B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla.3d DCA 1977).

      . Restatement (First) of Contracts § 346 illustration 2 (1932).