text:
    Richard Ray COKER, alias v. STATE.
    6 Div. 394.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.

      Thomas S. Wilson, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

Theft of property in the second degree— habitual criminal treatment; sentence: fifteen years’ imprisonment.

Between 10:30 or 11:00 p. m. on December 31, 1979, and 9:00 or 9:30 a. m. on January 1, 1980, several items of personal property were taken from the residence of Mrs. Evelyn Hamm. With the exception of one item, all of the stolen merchandise belonged to Mrs. Hamm’s son, Melvin Reynolds. Reynolds had resided with his mother and step-father since April 1977 and had a bedroom in the residence for his private use. All of the items stolen had been located in Reynolds’s bedroom. An investigation conducted by the Jefferson County Sheriff’s Department discovered fingerprints in the bedroom matching those of the appellant. Subsequently, the appellant was arrested and charged with the instant offense.

I

In the appellant’s motion to exclude the State’s evidence, he alleged that three fatal variances occurred between the allegations in the indictment and the proof at trial which mandate a reversal of this cause.

A

Appellant asserts that the indictment improperly placed ownership of one stolen television set in Melvin Reynolds when, in fact, Reynolds’s testimony proved that it belonged to his mother, Evelyn Hamm. At trial Reynolds testified that he had bought the television set in question for his mother approximately one year prior to its theft. However, Reynolds’s testimony proved that, although the television was owned by his mother, it was nevertheless within his possession and was located in his bedroom at the time it was stolen.

Section 13A-8-l(8), Code of Ala. 1975 (amended 1979), defines an owner as “[a] person, other than the defendant, who has possession of or any other interest in the property involved, even though that interest or possession is unlawful, and without whose consent the defendant has no authority to exert control over the property.” (Emphasis added.) In this regard the new criminal code definition of owner makes no change from our former rulings. See Mauldin v. State, Ala.Cr.App., 376 So.2d 788, cert, denied, Ala., 376 So.2d 793 (1979). Therefore, the trial court properly overruled the appellant’s motion to exclude on that ground.

B

Secondly, appellant insists that the indictment charged him with theft of property in the first degree while the proof at trial established only theft of property in the second degree.

The indictment sets out the monetary value of the stolen property to be $937 which is clearly within the statutory limits of theft in the second degree. Code § 13A-8-4. Although the indictment cites Code § 13A-8-3, which refers to theft in the first degree, the testimony at trial established the monetary value of the items to be $875 which proves theft in the second degree.

It is unnecessary to set out in an indictment the code section or statute under which an accused is charged. Matters of which judicial notice is taken need not be stated in an indictment. Frye v. State, Ala.Cr.App., 369 So.2d 892 (1979); Code § 15-8-32.

The evidence adduced at trial established the value of the stolen items well within the statutory limits of the offense for which the appellant was charged and convicted — theft of property in the second degree. Whether or not a theft in a particular case is of one degree or another is a question of fact addressed to the jury. Bell v. State, Ala.Cr.App., 364 So.2d 420, cert. denied, Ala., 364 So.2d 424 (1978); State v. O’Quinn, La., 342 So.2d 202 (1977). For a variance to be material, it must mislead the accused or be substantially injurious to him in making his defense. Tyson v. State, Ala.Cr.App., 361 So.2d 1182 (1978). Here, the value of the stolen articles was clearly set out in the indictment, and the fact that an incorrect code section was inserted in the indictment would create no material variance which would mislead the accused to such a degree as to substantially impede his efforts in making his defense. Consequently, the trial court correctly overruled the appellant’s motion to exclude on the instant ground.

C

Lastly, the appellant argues that the State had the burden of proving the time of the commission of the offense. He asserts that the time is an element of the crime and, without positive proof, an ex post facto application of the new criminal code could occur.

Mrs. Evelyn Hamm testified that she and her husband spent Christmas away from home and returned between 9:00 and 9:30 a. m. on January 1, 1980. She discovered the theft at that time when she found that the screen had been removed from the window in her son’s bedroom and the window was open. Mrs. Hamm’s daughter, Jane Ousley, testified that while her mother was out of town she checked the house every day. She stated that Melvin Reynolds, her stepbrother, was residing at the house while her mother was out of town. However, on December 31, 1979, he was out of town also. Mrs. Ousley stated that the last time she checked her mother’s house prior to learning of the break in was between 10:30 and 11:00 p. m. on December 31,1979. The new criminal code became effective at 12:01 a. m. on January 1, 1980. Code § 13A-1-11.

The uncontradicted evidence at trial indicates that the instant crime occurred somewhere between 10:30 and 11:00 p. m. on December 31,1979, and 9:00 or 9:30 a. m. on January 1, 1980. The trial court charged the jury, in pertinent part, as follows:

“Now, ladies and gentlemen, the charge embraced within this indictment is called theft. And, it’s under our new criminal code, and I am going to read to you verbatim from the new criminal code, and the new criminal code went into effect January 1, 1980, at 12:01 A.M. And, I want to charge you right now that if you should find from the evidence that the act, the basis of this offense occurred prior to 12:01 A.M. on January 1, 1980, then you cannot convict this defendant of this charge.”

Theft of property is defined as knowingly obtaining or exerting unauthorized control over the property of another with the intent to deprive the owner of his property. Code § 13A-8-2. Time is not a necessary element of the offense. Only in those offenses where time is made an element or a material ingredient of the charge must it be alleged in the indictment and proved beyond a reasonable doubt. Code § 15-8-30. Consequently, the application of Code §§ 13A-8-2 and -4 depends upon the finding of a fact which is not an element of the offense.

In the instant case the State had the burden of proving that the offense occurred on or after the effective date of the new criminal code. That fact must have been established to the satisfaction of the jury. No presumption favorable to the State as to the time of the crime exists. Furthermore, it is not a defensive matter which must be proved by the appellant that the crime occurred prior to the effective date of the new act. See Me.Rev.Stat., Tit. 17-A, § 1 (Supp. 1980); Comments to N.J. Stat.Ann., § 2C:1-13 (West Supp. 1980).

Under the facts and circumstances of the instant case, we find the evidence sufficient for the jury to have found that the theft occurred on January 1, 1980. The evidence showed that there was only one to one and one-half hours between the last check of the premises and the effective date of the new code. The thief had that short period of time plus nine to nine and one-half hours after the code became effective to commit the crime.

In determining the length of time it would have taken to have committed the crime in question, the jury could well have taken into consideration many factors including some of the following:

(1) The location of the window entered, its size and its height off the ground.

(2) The degree of difficulty in removing the screen and opening the window.

(3) The degree of difficulty in entering the window.

(4) The number of items stolen and their location in the house.«

(5) The size, shape, bulk and weight of the stolen articles.

(6) The degree of difficulty in locating and gathering up the stolen items.

(7) The degree of difficulty in removing the stolen items through the window.

Considering all of the above and other inferences which could be drawn from the evidence, the jury could certainly infer that even if the appellant broke into the house immediately after it was last checked, he could not have located and moved the stolen items prior to 12:01 a. m.

Likewise, there was testimony that a micro-wave oven that had been stored elsewhere was found on Reynolds’s bed when the theft was discovered. The oven had mud on it and was found sitting “halfway on the bed” and appeared to be “ready to fall off” the bed when discovered. The jury could reasonably infer from this fact that the thief was surprised when Mrs. Hamm returned home on the morning of January 1 and that he fled, leaving the oven teetering on the edge of the bed. We therefore believe that the jury could reasonably infer from the evidence that the crime in question occurred after the new criminal code became effective. Thus, the trial court was not in error in overruling the appellant’s motion to exclude on this ground.

II

The appellant asserts that he was improperly sentenced under the habitual criminal statute, Code § 13A-5-9, as he was neither indicted nor tried as an habitual offender.

Our habitual offender statute does not create a new crime. Rather, it merely enhances the punishment of the present crime because of the defendant’s prior convictions. Watson v. State, Ala.Cr.App., 392 So.2d 1274 (1980); Smith v. State, Ala.Cr.App., 392 So.2d 1273 (1980). Code § 13A-5-9 does not punish the appellant for past conduct, but merely increases the punishment for his latest offense. Williams v. State, Ala.Cr.App., 393 So.2d 492 (1981). The habitual offender statute was effective at the time the appellant committed the instant offense, ft specified the punishment for anyone who commits a felony after having been previously convicted of a felony or felonies. At the time the appellant contemplated committing the instant felony, he was charged by law with knowledge that if he committed the felony he would be subject to punishment under the habitual offender statute. The statute therefore had no ex post facto application.

A determination of whether or not a defendant will be punished as a habitual offender need only be made after there has been a determination of guilt in the present offense. Alabama Rules of Criminal Procedure, Temporary Rule 6(b)(3)(i). Therefore, reference to the habitual offender act need not be made in the appellant’s indictment.

We have considered the appellant’s allegations of error contained in brief and have reviewed the record pursuant to Code § 12-22-240, and we find no reversible error.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    David Leroy COULTER v. STATE.
    8 Div. 172.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Murray W. Beasley and Bryce U. Graham, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen. ,and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

Reversed and remanded on the authority of Beck v. State, 396 So.2d 645 (Ala. 1981).

REVERSED AND REMANDED.

All Judges concur.


text:
    Bernies BURNETT, Jr. v. STATE.
    8 Div. 361.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Randall 0. Gladden and Macon L. Weaver, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

Reversed and remanded on the authority of Beck v. State, Ala., 396 So.2d 645 modified March 6,1981).

REVERSED AND REMANDED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Edward LANKFORD v. STATE.
    8 Div. 423.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.

      David J. Evans, Jr., Boaz, for appellant.
    Charles A. Graddick, Atty. Gen., and Marda J. Walters, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Receiving stolen property in the second degree; sentence: fifteen years’ imprisonment.

On June 25,1980, Rhonda Minor discovered that the home of Glen Bradberry in Albertville, Alabama, had been burglarized and vandalized. Mrs. Minor, who had agreed to periodically check on the house while the Bradberrys were on vacation, immediately ran to a neighboring house and called the police. Jim Temple, an Albert-ville city detective, responded to Mrs. Minor’s call. He searched the area upon arrival and then took photographs of the interior of the home. He found the house in a state of disarray, with drawers and closets opened and with clothes and articles strewn about the floor.

Mr. Bradberry was notified and returned to Albertville the next day. The following Monday, Mr. Bradberry went through his house making a list of missing items. Among those items was a two- to three-year-old black and white Admiral, power-pack, AC-DC television. Mr. Bradberry placed its value at $109. Later, the set was returned to him from the Albertville Police Department.

Tommy Cole, another Albertville city detective, testified he and Detective Temple questioned a Mr. Chapman Stanfield in regard to the Bradberry burglary. It appears from the record that Stanfield was the person who actually burglarized the Bradberry house. During the interrogation Stanfield placed a telephone call from police headquarters to the appellant. With Stanfield’s permission the conversation was recorded and Detective Cole listened in on a telephone extension. Detective Cole stated he knew appellant, could recognize his voice, and that it was appellant to whom Stan-field was talking. Over objection Detective Cole testified as to the contents of the conversation between Stanfield and appellant. His narration in pertinent part appears in the record as follows:

“THE WITNESS: Chapman said that— Ed, I need that television by 2:00. He said, if you had come on down there yesterday, you would have had it. Let me—
“Q. (By Mr. Thompson) You are — when you say he, you are referring to Mr. Lankford?
“A. Right. And Chapman said, I was afraid to. He said, why were you afraid to? Were you afraid we were going to beat you up, and Chapman said, well, you might, or something similar to that. And he said, well, we were just out riding around drinking. And he said well,— Chapman said, I have got until 2:00. I have got to get that stuff back. And he said, well, did you not find it down there where I told you it would be on the side of that road, and Chapman said, no, I couldn’t find it. I found some green garbage bags and some old couches and garbage dumped out on the side of the road, but I could not find the bag with the T.V. in it. And then Ed said, well, it is there, and he said, well, go down there and get it. And Ed Lankford said, hell, no, I am not going to get it. They might catch me with it. And he said, well, tell me where it is and I will go get it. And he started — Lankford was trying to explain to him again, and Chapman said well, I went there, and I saw that particular bag, green garbage bag, and Chapman asked him to meet him there and get it for him. And that is when he said, well, I am going home. Lankford lives in Boaz, and this is, of course, in the Boaz area. And he said, I am going home in a few minutes and I will sit it on the side of the road. And that is when the conversation went on and he said, well, I have got to have it by 2:00. Chapman told Lankford that. And he said, you know, you got more of that stuff than anybody else and people are—
“MR. JONES: Objection, Your Honor. I move that his testimony be stricken from the record.
“THE COURT: The testimony of, you have got more than anyone else, ladies and gentlemen will be excluded. The jury will not consider that when they determine their verdict. Do you understand? Is there any problem of excluding that from your minds, any of you?
“(No response.)
“THE COURT: All right. Go ahead.
“THE WITNESS: At that time, they went onto that, what I guess I can’t discuss, and they agreed that Lankford would set it on the side of the road near a little parking road that went off of the main road where they dumped garbage. That was about all that was agreed on that particular television set.”

Immediately after the telephone call, Detectives Cole and Temple left for the drop site. Temple quickly searched the area but found no télevision. Cole then hid the automobile while Temple hid in the underbrush. Temple heard a vehicle arrive some thirty minutes later and saw the dust it created. However, by the time he reached the drop point, the occupant of the vehicle had opened the door, dropped the television, and disappeared.

The appellant’s only witness, Bobby Campbell, a television salesman and serviceman, testified that a television of the age and model of the stolen set would have a fair market value of $50.

I

Prior to trial,, but after the selection of the jury, the following comments were made by the judge to the jury:

“THE COURT: Good morning, ladies and gentlemen. I have always heard that it is bad policy to start anything with an apology, but that is what I am going to do. First, I apologize for the heat. I know that you are probably miserable back there in the jury room, and we are going to try to do something about it. “Second, the attorneys and parties are attempting [to] settle this matter, and it is going to take just a few more minutes, but I am sure you would not mind if it were settled. I am going to ask the attorneys, the parties and the witnesses if you will, to step out of here, and we will just let the jury just sit in here. I am sorry for the inconvenience. There are some legal publications on the wall. This is not a jury room, and technically you are not supposed to be in a room where there are legal publications. I ask you — I direct you, please do not look at these books while you are waiting. Make yourselves comfortable.
“(WHEREUPON the following proceedings took place outside the hearing of the jury-)
“MR. JONES: I object to the statement that Your Honor made that we are going to settle the matter, attempt to settle the matter.
“THE COURT: You have your exception. Thank you, gentlemen.
“MR. JONES: And we move for a mistrial.
“(WHEREUPON the following proceedings took place in the presence and hearing of the jury.)
“THE COURT: Ladies and gentlemen of the jury, I need to say one more thing to you. It may have been a slip on my part to say that the attorneys are attempting to settle this matter. Of course, that gives you no way of knowing which way it is going to be settled. I will ask you just to remove that from your mind that there was an attempt to settle the matter.
“Are any of you unable to disregard that remark that the Court made if we do try the case? If any of you cannot put that completely out of your mind, let me know now, please.
“(No response.)
“THE COURT: Okay.”

Appellant asserts the judge’s comment on efforts to settle the case was improper and so prejudicial as to require reversal.

An attempt to offer to compromise a criminal prosecution is ordinarily inadmissible against the accused unless an express admission of guilt is made by him in the course of his efforts to obtain a compromise. Williams v. State, Ala.Cr.App., 354 So.2d 48 (1977), cert. denied, Ala., 354 So.2d 53 (1978); Harrison v. State, 235 Ala. 1, 178 So. 458 (1937).

“[I]t is a fact that less penalties are sometimes agreed upon between the prosecutor and the defendant, and, however that may be, an effort to compromise is not an admission of guilt. ‘The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a belief that the adversary’s claim is well founded, but rather a belief that the further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered. In short, the offer implies merely a desire for peace, not a concession of wrong done.’ ...” Sanders v. State, 148 Ala. 603, 41 So. 466 (1906).

We point out first that the reference here to an attempt to settle the case was not made in the form of evidence introduced by the prosecution against appellant for the purpose of showing a consciousness of guilt. Rather, the remark came from the trial judge, obviously not as an effort to prejudice or influence the jury, but rather as a hospitable effort by the court to put the jury at ease during the delay. We view the remark as having been made in such a manner that the jury could not have inferred from which direction, party or for what reason a settlement was being pursued. For all that appears from the trial judge’s comment, the prosecutor may have sought a settlement by offering a lesser sentence in exchange for a guilty plea, which the appellant declined. Likewise, the conference could have been occasioned by defense counsel pointing out to the prosecutor some supposed fatal defect in the proceedings. The record does not show what was discussed or at whose suggestion. There was clearly no admission of guilt by the accused to be associated by the jury with the court’s remark. See Kennamer v. State, 28 Ala.App. 317, 183 So. 892, cert. denied, 236 Ala. 577, 183 So. 894 (1938).

Such remarks by the trial court are to be avoided because of the great weight any statement by the trial judge has on the jury’s deliberations. However, upon defense counsel’s objection, the learned trial judge immediately instructed the jury to disregard the remark and questioned the jurors as to their ability to remove the statement from their consideration. The trial court obviously believed that any prejudicial effect the remark may have had was counteracted by his prompt instruction, thereby negating the necessity of declaring a mistrial. Whether a mistrial is required in such situations is within the sound discretion of the trial court, and its determination will not be reversed, absent an abuse of discretion. Keener v. State, Ala., 347 So.2d 398 (1977). The trial court’s determination of the harmless effect of his remarks was further strengthened by the silence of all of the jurors in response to the court’s question as to any juror’s disability to disregard the remarks. Jarmon v. State, Ala.Cr.App., 333 So.2d 897 (1976).

The curative effect of the court’s instructions and the jurors’ silence in response thereto, viewed in light of the fact that defense counsel raised no further objection or motion following the court’s instructions, indicates all the parties were satisfied that any possible prejudicial effect of the court’s remark had been cured. Jarmon, supra. We find that there was no abuse of discretion in the trial court’s actions and no error prejudicial to the appellant.

II

Over continuing objections by defense counsel, the State introduced Officer Cole’s testimony, quoted supra, concerning the conversation between Chapman Stanfield and the appellant. The only basis for appellant’s objections was that Cole’s third person narration of a conversation between two other parties was inadmissible as being hearsay. No constitutional or other objection as to Cole’s means of overhearing and relating the conversation was raised by the appellant at trial or on appeal.

The record gives no indication as to why Chapman Stanfield was not called to testify concerning the conversation. However, this court has previously faced this issue under similar circumstances and determined that such a third party narration of an incriminating conversation is proper where (1) the telecommunication device is an effective means of communicating sound and (2) the third party properly identified the alleged speaker. Sexton v. State, Ala. Cr.App., 349 So.2d 126 (1977). There was no objection made as to the reliability of the telecommunication device, and Officer Cole properly identified appellant as the other party in the conversation. McGraw v. State, 34 Ala.App. 43, 36 So.2d 559, cert, denied, 251 Ala. 123, 36 So.2d 560 (1948). The testimony of Officer Cole was not objectionable as hearsay, and its introduction does not require reversal on that ground. Sexton, supra.

Ill

Conflicting evidence was introduced as to the value of the stolen television. Mr. Bradberry, the owner, testified that the television had a value of $109. Bobby Campbell, a television serviceman and salesman, estimated the value of such a television to be $50. Appellant argues this conflict in the evidence necessitates a reversal of this conviction for receiving stolen property in the second degree. Section 13A-8-18, Code of Ala.1975 (amended 1979), requires the stolen property to have a value in excess of $100. Appellant argues the evidence failed to prove that the television exceeded the required $100 in value necessary for a conviction under the statute.

Testimony as to market value is in the nature of opinion evidence. A witness need not be an expert or dealer in a particular article in order to testify as to its value, if he has had the opportunity to form a correct opinion. Thomas v. State, Ala.Cr. App., 338 So.2d 1045 (1976). Such opinion evidence is not conclusive, and it therefore remains with the jury as the trier of fact to be considered like all other evidence. The evidence is viewed in light of the knowledge and experience of the jury, which factors are to be relied upon by the jury in determining the true value of the property. State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965). The owner, Mr. Bradberry, was clearly familiar with the purchase price, age, past use, and condition of the television, and as such he was competent to testify as to its value. We cannot say the jury’s determination here as to value is without ample support from the evidence.

No prejudicial error to the substantial rights of appellant having been found in our review, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM. ENGLAND, Justice.

text:
    Peter R. GINDL et al., Appellants, v. DEPARTMENT OF EDUCATION et al., Appellees.
    No. 54665.
    Supreme Court of Florida.
    May 17, 1979.
    As Corrected on Rehearing Feb. 26, 1981.
    Larry Levy, of Dickinson, Levy & Taylor, Tallahassee, and Louis F. Ray, Jr., and Robert W. Kievit, of Louis F. Ray, Jr., P. A., Pensacola, for appellants.
    James D. Little, Gen. Counsel, State Board of Ed., and David V. Kerns, Gen. Counsel, Dept, of Administration, Tallahassee, for appellees.
   PER CURIAM.

We have jurisdiction of this direct appeal from a final judgment of the circuit court of Leon County because the trial court upheld the constitutionality of item 349 of the Appropriations Act, chapter 77-465, Laws of Florida, and section 236.081(3), Florida Statutes (Supp.1976).

By declaratory judgment action, members of the School Board of Escambia County, as the school board and individually as citizens and taxpayers of Escambia County, sought to have item 349 of the Appropriations Act (chapter 77-465), relating to district cost differentials, declared unconstitutionally violative of article III, sections 6 and 12, Florida Constitution, because it purports to amend section 236.081(3), Florida Statutes (Supp.1976), and relates to a subject other than appropriations, and unconstitutionally violative of article II, section 3, in that it constitutes an unlawful delegation of legislative authority and is vague and ambiguous. They also challenged the constitutionality of section 236.081(3) on the basis that it constitutes an unlawful delegation of the legislative authority to appropriate state funds to a state agency and is vague and ambiguous. They attacked the Florida Price Level Index referred to in section 236.081(3) and the district cost differential as being arbitrary, capricious, and discriminatory. They further alleged that school districts are authorized to levy additional millage above the required local effort millage of 6.4 mills set forth in chapter 77-465, but not to exceed a cap of eight mills as provided in section 236.25, Florida Statutes (1975), and that utilization of this “leeway” millage in the Florida Education Finance Program as well as the manner of computing district required local effort constitute a violation of the equal protection clause of the federal and Florida constitutions. They alleged that wide disparities in funds available throughout the state because of disparities in property wealth between districts cause substantial disparities in quality and extent of availability of educational opportunities.

The trial court entered final judgment in favor of appellees and found that appellants had standing; that item 349, chapter 77-465, is not unconstitutionally violative of article III, sections 6 and 12, Florida Constitution, since the one subject embraced by item 349 is appropriations; that, when read in conjunction with section 236.081(3), item 349 is neither vague nor indefinite; that by utilizing common sense and interpreting the plain meaning of these statutes, the administrators arrived at a formula which constitutes the most reasonable interpretation of these provisions; that the Florida Price Level Index, which is a study conducted by the Department of Administration and funded by the legislature, is not void because it does not have to be authorized by statute; that the legislature committed no impropriety when it appropriated funds according to this index, which was the result of a completed study and which was arrived at in a reasonable manner; that, although it did not understand why the legislature chose to use such a complex formula, the district cost differential is not arbitrary, capricious, or unreasonable and unrelated to the goal of providing substantially equal educational opportunities; and that the Florida education funding formula, in allowing leeway millage, does not violate the equal protection clause, and substantial equality of education is not prevented by the use of leeway millage.

We find that the trial court reached the correct result on each issue presented in this case, and the final judgment of the trial court is hereby affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents.

ON REHEARING

ENGLAND, Justice.

We have reconsidered our determination that item 349 of the 1977 Appropriations Act did not violate article III, section 12 of the Florida Constitution, in light of our recent evaluation of that constitutional provision in Brown v. Firestone, 382 So.2d 654 (Fla.1980), and the presentation of comparable issues in Department of Education v. School Board of Collier County, 394 So.2d 1010 (Fla.1981). We now conclude that our original decision was in error, inasmuch as item 349 impermissibly modified another statute — section 236.081(3), Florida Statutes (Supp.1976).

We have today released our decision in Collier County, holding that the 1978 Appropriations Act did not modify the distribution of formula funds under section 236.-081(6Xc), Florida Statutes (1977), although it did add dollars to select school districts based in part on the formulae set out in that statute. The differing outcomes of these two cases is a direct result of the factual differences between them.

In this case the trial judge expressly found:

The appropriations item in question did modify the formula used to allocate State educational funds among the various school districts from that set forth in F.S. 236.081(3) for the fiscal year 1977-78.

Put simply, the trial judge found as a fact that the legislature had taken funds designated for distribution under a formula set out in section 236.081(3) and, through item 349 of the appropriations act, altered the distribution formula. Having made that factual determination, with which we agree, the trial judge was wrong in failing to find that the challenged appropriation item was in violation of article III, section 12 of the Florida Constitution. See Brown v. Firestone, 382 So.2d at 664. Accordingly, we now vacate our earlier opinion and hold that the adoption of item 349 in the 1977 Appropriations Act was in excess of legislative authority. The funds having already been disbursed under that act, however, no further action of this Court is now appropriate. See Department of Administration v. Home, 269 So.2d 659, 663 (Fla.1972).

To be contrasted with our decision here is our decision today in Department of Education v. School Board of Collier County. There the legislature added dollars through the appropriations act to amounts which were otherwise to be distributed under section 236.081(6)(c), albeit utilizing a formula from that section rather than district names to determine the recipients of this additional bounty. That case involves merely supplemental dollars for the school districts, as if each had been listed separately in the appropriations act. Dollars distributed under section 236.081(6)(c) were unaffected by that supplementation. Our Brown decision expressly recognizes that the legislature may bestow extra funds in an appropriations act without violating article III, section 12 of the constitution.

To the extent that the validity of item 349 of the 1977 Appropriations Act was upheld by the trial court, the court’s final judgment is vacated. In all other respects that judgment is affirmed. The case is remanded to the trial court for such further proceedings consistent with this decision as may be appropriate.

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

ADKINS and BOYD, JJ., concur in result only.

      . “Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.” Art. Ill, § 12, Fla.Const.

      . Brown v. Firestone, 382 So.2d 654, 664 (Fla. 1980).


author: SUNDBERG, Chief Justice. OVERTON, Justice, McDONALD, Justice,

text:
    Lula M. VILLERY, Petitioner, v. The FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. 57935.
    Supreme Court of Florida.
    Oct. 30, 1980.
    As Corrected on Denial of Rehearing April 23, 1981.

      Bennett H. Brummer, Public Defender, and Robert R. Schrank, Asst. Public Defender, Miami, for petitioner.
    Michael H. Davidson, Gen. Counsel for the Florida Parole and Probation Commission, Tallahassee, for respondent.
   SUNDBERG, Chief Justice.

This suit raises questions concerning a prisoner’s eligibility for parole under section 947.16(1), Florida Statutes (1979), when he or she has been incarcerated as a special condition of probation pursuant to sections 948.01(4) and 948.03(2), Florida Statutes (1979). Our construction of Florida’s parole and probation statutory scheme will obviate the need for disposition of these questions.

Petitioner Lula M. Villery is presently a prisoner in the custody of the Florida Department of Corrections. She had pleaded guilty to five counts of knowingly issuing worthless checks in excess of fifty dollars in violation of section 832.05, Florida Statutes. The trial court withheld adjudication of guilt and imposition of sentence and placed petitioner on concurrent terms of probation for each charge, the longest of which ran two and one-half years. Following a probation violation hearing, the court adjudicated petitioner guilty of the charges and extended her probation to five years, with two and one-half years incarceration being imposed as a special condition of each probation. The jail terms were to run concurrently with two days credit being given for time served in the Dade County jail prior to the modified probation order. Because petitioner was imprisoned pursuant to a probation condition rather than a sentence, respondent Parole and Probation Commission informed petitioner that she could not be considered for parole. As a result, petitioner seeks a writ of mandamus from this Court compelling respondent to exercise its statutory duty to determine her eligibility for parole pursuant to section 947.16(1), Florida Statutes (1979). We issued an order to respondent to show cause why the writ should not be granted. Jurisdiction vests in this Court under article V, section 3(b)(5), Florida Constitution (1972).

Section 947.16(1), Florida Statutes (1979), states that every person whose sentence or cumulative sentences equal or exceed one year shall be eligible for parole. The section provides in full:

(1) Every person who has been, or who may hereafter be, convicted of a felony or who has been convicted of one or more misdemeanors and whose sentence or cumulative sentences total 12 months or more, who is confined in execution of the judgment of the court, and whose record during confinement is good, shall, unless otherwise provided by law, be eligible for consideration for parole. An inmate who has been sentenced for an indeterminate term or a term of 5 years or less shall have an initial interview conducted by a hearing examiner panel within 6 months after the initial date of confinement in execution of the judgment. An inmate who has been sentenced for a minimum term in excess of 5 years shall have an initial interview conducted by a hearing examiner panel within 1 year after the initial date of confinement in execution of the judgment. An inmate convicted of a capital crime shall be interviewed at the discretion of the commission. As used in this section, the term “confined” shall be deemed to include presence in any appropriate treatment facility, public or private, by virtue of transfer from the Department of Corrections under any applicable law.

Petitioner takes the position that incarceration as a condition of probation is a “sentence” for purposes of eligibility for parole consideration under section 947.16(1). Petitioner acknowledges the general statement in McGowan v. ’State, 362 So.2d 335 (Fla. 3d DCA 1978), that incarceration imposed as a condition of probation does not constitute a sentence. However, petitioner refers us to Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979), where the same court expressed its doubts on whether a lengthy prison term (nine and one-half years) could be imposed as a valid condition of probation when it was imposed for punitive rather than rehabilitative purposes, and when such a device served to divest the Parole Board of its exclusive authority to parole a prisoner. Petitioner argues that unless the word “sentence” in section 947.16(1) is construed to include incarceration imposed as a condition of probation, it will violate the separation of powers clause of the Florida Constitution by permitting the judiciary rather than the Parole and Probation Commission to determine the length of time a criminal defendant will in fact be required to serve in jail. In addition, petitioner argues that to classify her differently because her incarceration is labeled a “condition of probation” rather than a “sentence” would deprive her of equal protection under the Federal and Florida Constitutions since there is no rational basis for such a classification.

To respond to the issues presented here we must revisit our decision in State v. Jones, 327 So.2d 18 (Fla.1976), in which we treated the subject of incarceration as a condition of probation, also known as the split sentence probation alternative. First, however, it will be helpful to note the statutory provisions authorizing incarceration as a condition of probation.

Section 948.01, Florida Statutes (1979), authorizes the trial court to withhold imposition of sentence on a criminal defendant and instead place him on probation when it appears to the court that the defendant is not likely again to engage in a course of criminal conduct and the ends of justice do not require that the defendant presently suffer the penalty imposed by law. Section 948.03(1), Florida Statutes (1979), lists the terms and conditions of probation which may be imposed on a defendant. Section 948.03(2), Florida Statutes (1979), states that the enumeration of the terms and conditions in subsection (1) does not prevent the imposition of other conditions the court may consider proper. One of these other possible conditions includes incarceration as provided in section 948.01(4), Florida Statutes (1979):

(4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.

In State v. Jones, supra, we approved the so-called split sentence alternative where incarceration as a condition of probation is followed by a period of probation without incarceration. In doing so, we rejected the assertion that the trial judge must first impose a total sentence immediately followed by the withholding of a part of that sentence for use in the event probation is violated. We summarized our holding in the case as follows:

In conclusion, we hold (1) the trial court may place a defendant on probation and include, as a condition, incarceration for a specific period of time within the maximum sentence allowed; (2) the trial court may revoke, revise, or modify for cause the probation and incarceration provision at any time during the period that said order is in force and impose any sentence which might have been originally imposed; (3) upon revocation, a defendant must be given credit for any period of time spent in jail pursuant to a split sentence probation order.

Id. at 25 (footnote omitted). We adhere to points (2) and (3) of our holding in Jones, but for the reasons which follow we recede from point (1) and hold that the maximum period of incarceration which may be imposed as a condition of probation is up to, but not including, one year.

Two basic alternatives are available to the trial judge at the time of sentencing. He may either sentence the defendant or he may place him on probation. The term “sentence” is defined in rule 3.700 of the Florida Rules of Criminal Procedure as “the pronouncement by the Court of the penalty imposed upon a defendant for the offense of which he has been adjudicated guilty.” Generally, a fine or a sentence of imprisonment or both is the “penalty” which may be imposed. Rule 3.790(a) of the Florida Rules of Criminal Procedure states that the pronouncement and imposition of a sentence of imprisonment shall not be made upon a defendant who is placed on probation regardless of whether he is adjudicated guilty. This rule is consistent with section 948.01(3), Florida Statutes (1979), which requires the court to stay and withhold the imposition of a sentence in placing a defendant on probation. Only after probation is revoked may pronouncement and imposition of a sentence be made upon a defendant. Fla.R.Crim.P. 3.790(b). In such event the court may impose any sentence which it might have originally imposed before placing the defendant on probation. § 948.-.06(1), Fla.Stat. (1979).

Once a sentence is imposed, a defendant falls within the jurisdiction of the Parole and Probation Commission under the authority granted to the Commission pursuant to section 947.16, Florida Statutes (1979). If, however, sentence is withheld and the defendant is placed on probation, he is generally committed to the supervision and control of the Department of Corrections. The court which placed the defendant on probation retains jurisdiction over the defendant for purposes of terminating, modifying or revoking, probation. See §§ 948.-04-.06, Fla.Stat. (1979).

We agree with the District Court of Appeal, Third District, in McGowan v. State, supra, that incarceration as a condition of probation does not constitute a sentence. See also Olcott v. State, 378 So.2d 303 (Fla. 2d DCA 1979); Bracey v. State, 356 So.2d 72 (Fla. 1st DCA 1978). A sentence and probation are discrete concepts which serve wholly different functions. Imposed as a sentence, imprisonment serves as a penalty, as a payment of defendant’s “debt to society.” Imposed as an incident of probation, imprisonment serves as a rehabilitative device to give the defendant “ 'a taste of prison’ in order to graphically demonstrate what is likely to happen to him should he violate the terms of that probation.” Olcott v. State, 378 So.2d at 305.

However, while a probationer’s taste of prison is intended to be unpalatable, it must not be served as the main course. Imposing a long prison term is, as adverted to by the district court in Olcott, contrary to the spirit of probation. If a long prison term serves no rehabilitative goal, then it ceases to be an incident of probation. Indeed, far from serving the ostensible goal of rehabilitation, an extended probation jail term will instead prove more punitive to defendant than will a sentence of imprisonment where the express objective is to punish the defendant. Unless otherwise provided by law, a defendant who is sentenced to imprisonment for a term in excess of five years will be eligible for parole after one year. § 947.16(1), Fla.Stat. (1979). In contrast, a probationer must serve his entire term of imprisonment. The harsh effects of extended probation terms of incarceration have been noted with concern on a number of occasions by the district courts of appeal. See, e. g., Olcott.v. State and Shead v. State, supra; Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976).

We decline, however, to adopt petitioner’s suggestion that we construe a probation condition of incarceration as a sentence for the limited purpose of eligibility for parole under section 947.16(1), Florida Statutes (1979). Such a construction would create a legal and administrative morass which we do not believe was the legislative intent in adopting the split sentence alternative as part of the probation authority for trial judges. For example, if a prisoner were released on parole for an offense for which he was still on probation, and the defendant were charged with a violation of his parole and probation, would the Parole and Probation Commission be required to stay any hearing for revocation of parole until the trial court decided whether to revoke probation? Could the same incident be used to revoke parole when it was not deemed serious enough to revoke probation? Which condition would control if the parole and probation conditions were inconsistent? Would a prisoner’s eligibility for parole be based on his total period of probation or on only the part for which incarceration was imposed? We can only conclude that the legislature did not address these significant questions because it never contemplated the concurrent operation of parole and probation for the same offense. Rather, the separate treatment of parole and probation under the applicable statutory scheme reflects a legislative intent to maintain their separate identity.

We must determine, then, the point in time at which incarceration ceases to serve a rehabilitative function and is, therefore, invalid as a condition of probation. In Olcott v. State, supra, the district court suggested that a maximum limitation of one year would be appropriate because it would avoid any conflict with section 947.-16. We agree. Under section 947.16(1) a prisoner does not become eligible for parole consideration unless he has been sentenced to at least one year in prison. We construe this provision as expressing a legislative intent to limit the period of incarceration which may be imposed as a condition of probation under section 948.01(4) to a period of less than one year. If a longer period of incarceration could be imposed as a probation condition the trial judge could, in effect, negate the parole policy of this state. Where possible we must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. State ex rel. School Board v. Department of Education, 317 So.2d 68 (Fla. 1975). Our construction of section 947.16(1) in conjunction with section 948.01(4) achieves these objectives.

For the reasons expressed in this opinion, we hold that incarceration, pursuant to the split sentence alternatives found in sections 948.01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of probation. We further hold that this decision applies retroactively. Accordingly, one who has been given a split sentence probation contrary to the mandate of this decision is entitled upon application to have the illegal order corrected. In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment. However, unless a condition of probation is determined to have been violated, the court may not extend the term of probation either with or without incarceration, nor may the court impose a sentence of imprisonment for a period of time in excess of the original total term of probation. If a condition of probation is found to have been violated, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the defendant on probation. See § 948.-06, Fla.Stat. (1979). In modifying probation or in revoking probation and sentencing the probationer, credit must be given for time spent incarcerated pursuant to a split sentence probation order. Thus in modifying a probation order, no additional period of incarceration may be imposed on a probationer who has already served one year or more of incarceration. And in pronouncing a sentence of imprisonment on a probationer whose probation has been withdrawn because of an illegal probation order, the time spent incarcerated pursuant to the probation order will be deemed to have been time spent in prison under a sentence.

Accordingly, the petition for writ of mandamus is denied.

ADKINS, BOYD and ENGLAND, JJ., concur.

OVERTON, J., concurs specially in result with an opinion with which ALDERMAN, J., concurs.

McDONALD, J., concurs in result only with an opinion.

OVERTON, Justice,

specially concurring in result.

I agree with the result and the finding that incarceration of more than one year as a condition of probation is contrary to the legislative intent. I disagree with the the clear inference that probation is not a sentence. In my view, probation is a penalty and a sentence alternative which may be imposed as a “sentence” at a “sentencing hearing” held pursuant to our rules on sentencing. Clearly, probation is an alternative means of providing a less restrictive penalty for a criminal offense. The term “sentence” is used in our rules and by outside authorities to include any sentence alternative from probation to incarceration.

Rules of criminal procedure 3.700 through 3.721 do not apply just when a “sentence of imprisonment” is imposed but also apply when a “sentence of probation” may be imposed. ABA Standards of Criminal Justice define probation as a “sentence not involving confinement ...” (standard 18-2.3) and use the terms “sentence of probation” (standard 18-2.3) and “sentence of commitment” (standard 18-2.5). Standard 18-2.4 prescribes the intermediate sanction of both a sentence of confinement and a sentence of probation.

In imposing the appropriate penalty for a criminal offense, a trial judge in Florida generally has the broad discretion to impose a sentence of confinement or a sentence of probation in addition to some intermediate alternative penalties.

The restricted definition of the term “sentence” in the majority opinion will, in my view, cause us considerable problems in construing our rules and the sentence alternatives now prescribed in our statutes. For this reason, I must concur in result only.

ALDERMAN, J., concurs.

McDONALD, Justice,

concurring in result only.

This opinion should be limited to the maximum time a trial judge may impose jail time as a condition of probation. If the time exceeds one year it is not a valid probation order but becomes a sentence. There are times when a trial judge finds that a defendant should be sentenced to prison but also needs some form of supervision longer than the prison sentence. I construe sec. 948.01(4), Florida Statutes, to give a trial judge authority to do just that. This opinion would prevent a trial -judge from sentencing a defendant to a term in excess of one year and thereafter place him on probation to assure his supervision after the completion of his sentence. I agree that a condition precedent for probation should not exceed one year, but at the same time a trial judge should have the option of requiring probation after a specified jail sentence. To the extent that this decision prevents that, I dissent.

      . Art. II, § 3, Fla.Const.

      . U.S.Const. Amend. XIV, § 1; art. I, § 2, Fla. Const.

      . Subsequently, in State v. Holmes, 360 So.2d - 380 (Fla. 1978), we held that the combined period of incarceration and probation imposed under the split sentence alternative must be within the maximum period of incarceration provided by the particular criminal statute for the offense involved.

      . As to certain serious crimes the trial judge may enter an order at the time of sentencing retaining jurisdiction over the offender for review of a Commission release order. § 947.-16(3), Fla.Stat. (1979).

      . There is authority for this position. See McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978); 1974 Op.Atty.Gen. Fla. 74-283.

      . “A probationary period is not a sentence and any procedure that tends to mix them is undesirable, even though this mixture is accomplished by nothing more than the terminology used by the trial court in its desire to place a person on probation.” In re Florida Rules of Criminal Procedure, 196 So.2d 124, 171 (Fla. 1967).


author: ADKINS, Justice. SUNDBERG, C. J., and ENGLAND, J.,

text:
    Eligaah Ardalle JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 49345.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Rehearing Denied May 4, 1981.

      Lester Bales, Jr., Zephyrhills, for appellant.
    Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from judgments adjudging defendant guilty of murder in the first degree and sentences of death, resulting from a two count indictment. Our jurisdiction vests under Article V, section 3(b)(1), Florida Constitution (1972).

On the evening of March 4, 1974, at approximately 11:00 p. m., the appellant (Jacobs) and three companions, his wife, Thomas Collins, and Elisha Chavis, went to Ed’s Country Store in Pasco County intending to rob the store. En route the entire group consumed an undetermined amount of intoxicating beverages.

Upon arriving at the store, Jacobs and Chavis went inside while Jacobs’ wife went to the restroom. Collins remained outside near the car. While the robbery was in progress, the caretaker of the store, Grant Ison, reached into his pocket and Jacobs shot and killed him for fear that Ison had a gun. Seconds afterward, Chavis shot and killed the sole other occupant of the store, Barry Marsh, when Marsh approached Jacobs with a large knife. Jacobs and Chavis then left the store taking with them an unspecified amount of beer, cigarettes, and money, which was later divided among the group.

Approximately eight months after the robbery, Jacobs’ wife went to Massachusetts where she gave a statement to Lieutenant Richard Coughlin of the Massachusetts State Police setting forth the details of the offense. This information was transmitted to the Pasco County Sheriff’s Department and resulted in the arrest of Jacobs, Chavis, and Collins. An indictment was returned charging Jacobs with the two murders. Jacobs was tried and convicted of first degree .murder on both counts. He was sentenced to death on each count.

On this appeal Jacobs raises five points as error.

First, Jacobs argues that it was reversible error for the trial judge to refuse to instruct the jury that intoxication may negate the specific intent required to establish the commission of the crime. In the usual case, to be guilty of first degree murder the defendant must not only intend to kill another human being, but in addition the state must prove that the homicide was perpetrated from a premeditated design. In such case intoxication may make the killer incapable of the reflection called for by the requirement of premeditation. But this case is not the usual case of premeditated murder; this case involves application of the felony murder doctrine.

In cases of felony murder the mental element of the offense is that which is required for the felony; premeditation is supplied by the felony. Adams v. State, 341 So.2d 765 (Fla.1976). Thus a defendant charged with first degree felony murder on account of a killing during the commission of a robbery may defend himself on the ground that he was too intoxicated to entertain the intent to rob.

Jury instructions regarding intoxication, however, need not be given in every case in which evidence has been adduced at trial that the defendant consumed alcoholic beverages prior to the commission of the offense. Shaw v. State, 228 So.2d 619 (Fla. 2d DCA 1969). There was evidence that Jacobs had used intoxicating beverages, but there was no evidence that Jacobs was intoxicated. There is no evidence as to the amount of alcohol consumed during the several hours Jacobs drove around prior to the robbery.

In this case the record reveals that the trial judge did not commit reversible error in denying the requested jury instructions. The accomplices’ testimony shows that the robbery was carried out from a preconceived plan and, until the shooting erupted, it was successful. Also, the evidence clearly shows that defendant was capable of reflection at the time of the homicides and premeditation was thus proved. This being so, the felony murder evidence was merely cumulative to show premeditation.

Jacobs’ second point on appeal is that the 180-day speedy trial rule was violated. Jacobs was taken into custody on November 17, 1974. On February 26, 1975, he filed a motion to suppress certain evidence, which was granted on March 17, 1975. On March 18, 1975, the state sought, and the trial court granted, a continuance to take an interlocutory appeal of the suppression order. Fla.R.Crim.P. 3.191. Successive motions for extensions of time were granted to the state by the trial judge, including a June 11, 1975, extension for a reasonable period of time after the appellate court filed its opinion in the interlocutory appeal. The mandate of the appellate court (reversing and remanding the trial court’s order granting the motion to suppress) was received by the trial court on November 6, 1975. Jacobs was brought to trial on February 10, 1976.

Jacobs argues that the trial court’s initial extension of time was for 60 days and that, because the subsequent extensions were outside the trial court’s jurisdiction during the appeal, the speedy trial rule was violated.

Jacobs is in error. A review of the record reveals that the initial extension of time was not limited to a time certain. The extension was for a reasonable time in which the state could expeditiously pursue the interlocutory appeal. The additional extensions of time were effective because only the trial court, not the appellate court, may grant an extension of the speedy trial time period while an interlocutory appeal is pending. State v. Barnett, 366 So.2d 411 (Fla.1978).

The June 11, 1975, order of the trial court validly extended the time until a reasonable period after the appellate court filed its opinion. As we stated in State v. Jenkins, 389 So.2d 971, 974 (Fla.1980), “[I]f the trial court grants an extension for the period of the appeal plus ‘a reasonable period after issuance of the appellate mandate’ without specifying the number of days, the time period under rule 3.191(a) is not controlling, and only the constitutional test of reasonableness is applied ... . ” In the absence of these time limitations, the question of whether a trial date affords defendant a speedy trial must be determined in the light of the circumstances of the particular case as a matter of judicial discretion. The mere lapse of time before trial is not the only factor to be considered under such circumstances. This was the reasoning in State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla. 1971), where defendant sought a continuance. This rule is equally applicable when the state seeks a continuance. See King v. State, 303 So.2d 389 (Fla. 3d DCA 1974).

Jacobs’ third point on appeal is that one of the members of the grand jury which indicted him was not a qualified elector on the date the indictment was returned, and the indictment is therefore unlawful. The appellant made a timely motion to dismiss the indictment, which was denied, thereby preserving this point for appeal.

Section 40.01, Florida Statutes (1973), provides inter alia that grand jurors “shall be taken from the male and female persons over age of twenty-one years, . . . who are fully qualified electors of the respective counties.” (Emphasis supplied). The challenged grand juror, although a qualified elector at the time her name was placed on the jury list, was purged from the voter list prior to Jacobs’ indictment. Jacobs argues that the participation of this grand juror voids his indictment, citing the case of Ki-trol v. State, 9 Fla. 9 (1860), where a grand juror who was determined not to be qualified because over the age of sixty at the time he was summoned for jury duty, rendered the indictment void.

The applicable statute, section 40.01, Florida Statutes (1973), merely requires that the names placed on the jury list “shall be taken” from the voting list. Johnson v. State, 293 So.2d 71 (Fla.1974). The statute does not mandate that the grand juror be on the voting list when an indictment is returned. Appellant’s third point is therefore without merit. See also Reed v. State, 292 So.2d 7 (Fla.1974); Jones v. State, 289 So.2d 385 (Fla.1974).

Jacobs’ fourth point on appeal is that the imposition of the death penalty in this case would be a denial of equal protection. The Florida statute inflicting capital punishment has been held constitutional. Proffitt v. State, 315 So.2d 461 (Fla.1975), aff’d, Proffitt v. Florida, 482 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Jacobs says, however, that the death penalty is unconstitutionally imposed when a co-defendant on similar facts is not sentenced to death. He cites Slater v. State, 316 So.2d 539 (Fla.1975), where we held that the imposition of the death penalty against a defendant convicted a first degree felony murder was unconstitutionally applied where the defendant had been an accomplice and the “trigger man”, who had entered a plea of guilty, was sentenced to life imprisonment.

We are not confronted with the situation in which the “trigger man” was sentenced to life and the accomplice improperly sentenced to death, Slater v. State, supra, nor are we confronted with the situation where the accomplice is sentenced to life and the “trigger man” properly sentenced to death, Meeks v. State, 339 So.2d 186 (Fla.1976). Instead, we are confronted with the situation in which there are two “trigger men”, one (Chavis), who pleads guilty to second degree murder and is sentenced to life imprisonment, and another (Jacobs), who is convicted of first degree murder in a jury trial and is sentenced to death.

Essentially, appellant’s argument is that in case of felony murder involving two “trigger men” it is constitutionally impermissible to allow one “trigger man” to plead guilty and be sentenced to life imprisonment, and allow the second “trigger man” to exercise his right to a jury trial and take his chances that a conviction and death sentence will result. We do not accept appellant’s argument. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859, 889, n. 50 (1976).

In a related point, Jacobs argues that the trial judge committed reversible error in denying the defendant the right to inform the jury of the sentences imposed on Jacobs’ accomplices. He cites Messer v. State, 330 So.2d 137 (Fla.1976), where we remanded to the trial court for the purpose of conducting another sentencing hearing because the trial judge had erroneously refused to permit the defendant to inform the jury at the sentencing phase of the sentences imposed on the. defendant’s accomplices and of certain psychiatric testimony concerning the defendant.

The case sub judice is quite different. Jacobs was precluded from informing the jury of the sentences imposed on his accomplices at closing argument; he made no attempt to present this evidence at the sentencing hearing. Messer stands for the proposition that evidence of the sentences imposed on the defendant’s accomplices should not be withheld from the jury at the sentencing phase. § 912.141, Fla.Stat. (1975). Clearly, the jury should be allowed to weigh all the facts and circumstances surrounding the homicide, so that their advisory verdict will be the result of reasoned judgment rather than an exercise in discretion. Raulerson v. State, 358 So.2d 826 (Fla.1978). But this does not mean that evidence which is admissible at the sentencing hearing is also admissible at trial. Nor does this mean that the state or the trial judge must provide the jury with such information if the defendant fails to do so; generally, it is improper for the state to disclose that another defendant has been convicted. Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967). While it is clear that the legislature in the enactment of section 921.141, Florida Statutes (1975), sought to extend the admissibility of evidence at the sentencing hearing, it did not grant the defendant or the state any greater latitude at the trial phase of the bifurcated proceeding.

As for appellant’s final point on appeal, we have reviewed the record and determined that it is without merit.

It is our responsibility to review the judgment and sentence imposed upon defendant in light of other decisions and determine whether the punishment is too great. The following findings in aggravation and mitigation were made by the trial court:

FINDING IN SUPPORT OF DEATH SENTENCE
“On February 13, 1976, a majority of the jury recommended in favor of the death penalty for the Defendant; this Court, after considering the recommendation of the jury, and after weighing the aggravating and mitigating circumstances, as contained in Florida Statute 921.-141, sentenced the Defendant to death on each of the two counts as contained in the indictment filed in the above-styled cause and in so doing found as follows:
1. The Defendant committed or aided in the committing of these acts of murder while engaged in the commission of the crime of robbery upon the victims of the murder. The testimony of the three State witnesses, Paula Jacobs, Thomas Collins, and Jean Gray, indicated that the purpose of the Defendant being at the store was to commit a robbery, and that these murders were committed in furtherance of that motive.
2. This capital felony was committed in part for the purpose of avoiding or preventing the arrest or detection of the Defendant for the perpetration of the robbery. The State witness, Jean Gray, testified that the Defendant had made the statement to her that he never left any witnesses and that those that he did leave never “talked.” The evidence further disclosed that the participants in the robbery indicated prior to entering the subject store that the witnesses (i. e. ultimate victims) could not be left alive to identify the Defendant Jacobs or others.
3. These acts of murder were committed by the Defendant for pecuniary gain. The testimony of Paula Jacobs and Thomas Collins shows that from the very outset of the sequence of events which led to the deaths of Grant Ison and Barry Marsh, the Defendant and others were together for the sole purpose of committing a larceny.
4. This capital felony was especially heinous, atrocious, and cruel in that the testimony of Paula Jacobs, during the guilt phase of the trial, revealed that the Defendant started to her immediately following the shooting that after he shot the man behind the cash register, his victim begged the Defendant not to shoot again. Paula Jacobs further testified that the Defendant told her that he had started shooting and was not going to stop. Further, the testimony of the medical examiner shows that the man whose body was found behind the cash register had not died instantly, but was, in fact, alive for as much as an hour after he had been shot three times. Testimony of the medical examiner further indicated that the second victim had been shot a total of six times.
The only mitigating circumstances which this Court finds to exist is that the Defendant has no significant history of prior criminal activity. This Court feels that there are no other existing mitigating circumstances; and that, additionally, the evidence as presented during the guilt phase of the trial specifically negates all but the aforementioned mitigating circumstances found in Florida Statute 921.141(6).
WHEREFORE, this Court, upon weighing the aforementioned aggravating and mitigating circumstances, does, therefore, accept the advisory opinion rendered in this cause by the jury of twelve persons and hereby finds that sufficient aggravating circumstances exist and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances.

Finding 1 lists the aggravating circumstance of murder while engaged in the crime of robbery while Finding 3 includes the aggravated circumstance of murder for pecuniary gain. These are overlapping and constitute only one aggravating circumstance. Provence v. State, 337 So.2d 783 (Fla.1976), was an appeal from a judgment of first degree murder and sentence to death. At the sentencing hearing the jury rendered an advisory verdict recommending life. The trial judge considered as factors in aggravation that there were two armed robbery charges pending against defendant in another state and that, according to the presentence investigation, defendant was at the time of his arrest engaged in ripping off a heroin addict. We held that the court erred in considering mere arrest and accusation as factors in aggravation. In this opinion we said:

The judge’s order does not specifically enumerate which aggravating circumstances under Section 921.141(5), Florida Statutes, induced him to override the jury’s recommendation of mercy and to sentence Provence to die. The State argues the existence of two aggravating circumstances that the murder occurred in the commission of the robbery [subsection (d)] and that the crime was committed for pecuniary gain [subsection (f)]. While we would agree that in some cases, such as where a larceny is committed in the course of a rape-murder, subsections (d) and (f) refer to separate analytical concepts and can validly be considered to constitute two circumstances, here, as in all robbery-murders, both subsections refer to the same aspect of the defendant’s crime. Consequently, one who commits a capital crime in the course of a robbery will always begin with two aggravating circumstances against him while those who commit such a crime in the course of any other enumerated felony will nob be similarly disadvantaged. Mindful that our decision in death penalty cases must result from more than a simple summing of aggravating and mitigating circumstances, State v. Dixon, 283 So.2d 1, 10 (Fla.1973), we believe that Provence’s pecuniary motive at the time of the murder constitutes only one factor which we must consider in this case.

337 So.2d at 786. (Emphasis supplied).

In the case sub judice Finding 1, relating to the robbery, and Finding 3, relating to murder for pecuniary gain, constitute but one aggravating circumstance. In State v. Dixon, 283 So.2d 1, 9 (Fla.1973), we said:

When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Statutes, Section 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury.

It is necessary that the trial judge exercise a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances. The trial judge reasoned that a murder committed for pecuniary gain during the course of a robbery coupled with the heinous manner in which death was inflicted, as well as the circumstance that death was inflicted for the purpose of avoiding detection, required the imposition of a death sentence. The fact that these factual situations were considered as four aggravating circumstances instead of three does not indicate that the technical error committed by the judge in any way affected his reasoned judgment.

The case sub judice involves the listing of one aggravating circumstance in such a manner that the factual situation became two aggravating circumstances. Elledge v. State, 346 So.2d 998 (Fla.1977), involved an entirely different situation. Defendant El-ledge was convicted and sentenced to death for the murder of Strack. The homicide occurred on a Saturday afternoon. On Sunday afternoon defendant Elledge murdered Gaffney. On Monday morning defendant murdered Nelson. The court held that admission of evidence of the Gaffney murder at the sentence hearing was improper because there had been no conviction of the defendant for this homicide. Evidence of the Nelson murder was appropriate because defendant had been convicted of this homicide. This Court reasoned that consideration of the Gaffney homicide could have influenced the judge in his reasoned judgment and therefore, defendant should be granted a new sentencing trial. In the case sub judice the trial court’s reasoned judgment in imposing the death sentence could not have been influenced by an inappropriate factual situation. Elledge, supra, is not controlling.

. We have carefully reviewed the record in this case and it is our opinion that the aggravating and mitigating circumstances are such that the infliction of capital punishment is warranted.

Finding no error, it is our opinion that the judgments and sentences should be and they are hereby affirmed.

It is so ordered.

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

SUNDBERG, C. J., and ENGLAND, J.,

concur in affirmance of the convictions of guilt, but dissent from affirmance of the death sentences. Because of violation of the principles announced in Provence v. State, 337 So.2d 783 (FIa.1976) and Elledge v. State, 346 So.2d 998 (Fla.1977), they would remand to the trial judge for resen-tencing.


author: ENGLAND, Justice.

text:
    DEPARTMENT OF REVENUE OF the STATE OF FLORIDA, Petitioner, v. William MARKHAM, as Broward County Property Appraiser et al., Respondents.
    No. 58216.
    Supreme Court of Florida.
    March 12, 1981.
    Rehearing Denied May 8, 1981.

      Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for petitioner.
    Joel M. Weissman of Christiansen, Jack-nin & Myers, Palm Beach, and Gaylord A. Wood, Jr., Fort Lauderdale, for respondents.
   ENGLAND, Justice.

On the basis of a direct conflict of decisions, the Department of Revenue has asked us to review an adverse ruling by the First District Court of Appeal, reported at 381 So.2d 1101, to the effect that household goods owned by nonresidents were exempt from ad valorem taxation. Despite an extensive legal analysis by a majority of the district court with regard to the tax issue presented, we are compelled to reverse the decision on the ground the lawsuit was improperly commenced by one who lacked legal standing and should never have been entertained.

This proceeding was a declaratory action brought in 1978 by William Markham, as property appraiser (later joined by another appraiser as intervenor), who claimed to be in doubt as to the law, or unable to apply it, with respect to taxation of household goods. Markham also expressed his dissatisfaction with the wisdom of the law. A majority of the district court ruled that the appraisers had standing to maintain the suit, essentially relying on a 1972 precedent from this Court. A more thorough, contrary analysis of the standing issue appears in Judge Er-vin’s dissent, however, beginning in 381' So.2d at 1111. We align ourselves with that analysis.

For important policy reasons, courts have developed special rules concerning the standing of governmental officials to bring a declaratory judgment, action questioning a law those officials are duty-bound to apply. As a general rule, a public official may only seek a declaratory judgment when he is “willing to perform his duties, but ... prevented from doing so by others.” Reid v. Kirk, 257 So.2d 3, 4 (Fla. 1972). Disagreement with a constitutional or statutory duty, or the means by which it is to be carried out, does not create a justi-ciable controversy or provide an occasion to give an advisory judicial opinion. See Askew v. City of Ocala, 348 So.2d 308 (Fla. 1977). Since the property appraisers under section 195.027(1), Florida Statutes (1977), had a clear statutory duty to comply with the prescribed Department of Revenue regulations governing the taxability of household goods, they clearly lacked standing for declaratory relief in their governmental capacities.

. Because this case was filed by Markham not only in his official capacity but as a citizen and taxpayer, we must also consider whether those capacities supply standing. We conclude they do not.

The complaint for declaratory relief contained no allegation of any special injury, and it did not attack the constitutionality of the taxing statutes in question. It has long been the rule in Florida that, in the absence of a constitutional challenge, a taxpayer may bring suit only upon a showing of special injury which is distinct from that suffered by other taxpayers in the taxing district. Department of Administration v. Horne, 269 So.2d 659 (Fla.1972); Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). The rationale for the rule was recently restated in Paul v. Blake, 376 So.2d 256, 259 (Fla.3d DCA 1979):

This rule is based on the sound policy ground that without a special injury standing requirement, the courts would in all likelihood be faced with a great number of frivolous lawsuits filed by disgruntled taxpayers who, along with much of the taxpaying public these days, are not entirely pleased with certain of the taxing and spending decisions of their elective representatives. It is felt that absent some showing of special injury as thus defined, the taxpayer’s remedy should be at the polls and not in the courts. Moreover, it has long been recognized that in a representative democracy the public’s representatives in government should ordinarily be relied on to institute the appropriate legal proceedings to prevent the unlawful exercise of the state or county’s taxing and spending power.

The allegations of Markham’s complaint, alleging no special injury and no constitutional infirmity, foreclose any justiciable basis for procuring declaratory relief in his non-governmental capacity.

In Williams v. Howard, 329 So.2d 277 (Fla.1976), we reiterated from an earlier decision the standing basis for declaratory suits:

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Id. at 282 (quoting May v. Holley, 59 So.2d 636, 639 (Fla.1952)). The lawsuit here presents no genuine controversy affecting nonresidents actually aggrieved by the taxation of their household goods.

The opinion of the district court is quashed and this cause is remanded to the district court for further remand to the trial court with directions to dismiss the complaint.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.

      . We make no comment on the applicability to a suit such as this of newly-enacted section 195.092(2). Ch. 80-274, § 6 Laws of Florida. That law is expressly made applicable to tax rolls and tax levies for 1980 and subsequent years. Id., § 64(1).

      . Florida Administrative Code rule 12D-7.02.


author: OVERTON, Justice. SUNDBERG, Chief Justice,

text:
    Ruth CHENOWETH and Donald H. Chenoweth, her husband, Appellants, v. William L. KEMP, M.D., the Good Samaritan Hospital, a Florida corporation, and Abraham Szmukler, M.D., Appellees.
    No. 56418.
    Supreme Court of Florida.
    April 2, 1981.

      Dewey H. Varner, Jr. of Kohl, Springer, Springer & Varner, Palm Springs, for appellants.
    John W. Mauro and Leonard M. Bernard of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for William L. Kemp, M.D.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for The Good Samaritan Hospital.

      Adams, Coogler, Watson & Smith and Larry Klein, West Palm Beach, for Dr. Abraham Szmukler.
   OVERTON, Justice.

This is an appeal from a judgment for defendants-appellees in a negligence action brought against the physicians and hospital following appellant Ruth Chenoweth’s hysterectomy. The medical mediation panel unanimously found no actionable negligence, and the jury verdict at trial was in favor of appellees. Before trial appellants moved the court to declare unconstitutional sections 768.45, .48, .49, .50, and .51, Florida Statutes (Supp.1976), on the ground that as part of chapter 76-260, Laws of Florida, the above sections were void because chapter 76-260 contravened the “one subject” rule of article III, section 6, Florida Constitution. The trial court denied the motion and expressly found there was no violation of the “one subject” rule of the constitution. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

We find that chapter 76-260 does not violate the “one subject” rule of article III, section 6, of the Florida Constitution. We have long held that the subject of an act “may be as broad as the Legislature chooses as long as the matters included in the act have a natural or logical connection.” Board of Public Instruction v. Do-ran, 224 So.2d 693, 699 (Fla.1969). See also State v. Lee, 356 So.2d 276 (Fla.1978). While chapter 76-260 covers a broad range of statutory provisions dealing with medical malpractice and insurance, these provisions do relate to tort litigation and insurance reform, which have a natural or logical connection.

Appellants’ second point on appeal concerns the exclusion of expert testimony under section 768.45(2), Florida Statutes (Supp.1976). Mrs. Chenoweth suffered damage in the ulnar region of her left arm, which she claimed was due to some negligence by one or more of the appellees in the operating room or at some later point in the hospital. Appellants’ concentrated their argument on the theory that Mrs. Chenoweth was incorrectly positioned and secured on the operating table, and it is to this point that appellants proffered the testimony of two neurosurgeons. Appellants wished to present the opinions of these neurosurgeons as to whether it was below the standard of care for either appellee Kemp, a specialist in obstetrics-gynecology, or appellee Szmuk-ler, a board-certified anesthesiologist, to allow a compression injury to the ulnar nerve to occur during the course of an operation or not to use some type of padding to protect the ulnar nerve. Section 768.45(2) governs the admissibility of expert testimony on the accepted standard of care for health care providers, and paragraphs (b) and (c) provide:

(b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a “similar health care provider” is one who:
1. Is trained and experienced in the same specialty; and
2. Is certified by the appropriate American board in the same specialty.
(c) The purpose of this subsection is to establish a relative standard of care for various categories and classifications of health care providers. Any health care provider may testify as an expert in any action if he:
1. Is a “similar health care provider” pursuant to paragraph (a) or (b); or,
2. Is not a similar health care provider pursuant to paragraph (a) [or] (b) [but], to the satisfaction of the court, possesses sufficient training, experience, and knowledge to provide such expert testimony as to the acceptable standard of care in a given cause.

The trial court, after studying this section, refused to allow the two neurosurgeons to testify. The record is clear that the court made this determination, not upon any finding that they did not possess sufficient training, experience, or knowledge to provide such expert testimony, as allowed under paragraph (c) of section 768.45(2), but solely because they were neither specialists nor board certified in either gynecology or anesthesiology. The provisions of paragraph (c) clearly require the court to make the determination that the proffered witnesses do not possess the training, experience, or knowledge to testify on the standard of care for the alleged acts in question — here the positioning of the patient on the operating table. The trial court may not always avoid this often difficult determination by resting solely on the fact that a proffered witness does not practice the same specialty as the defendants. While it is clear that the proffered witnesses would not have been competent to testify on certain acts performed by the appellees, such as the hysterectomy performed by Kemp or the anesthetizing performed by Szmukler, it is not at all clear that the two neurosurgeons were not qualified under the statute to testify concerning the positioning of the patient on the operating table and the effect of that positioning. The standard of care for this portion of the procedure may well be, as claimed by one of the neurosurgeons, the same for all surgeons relative to protection of the ulnar nerve from compression or other injury. We find the exclusion of these witnesses, under the circumstances, was error. However, we find it was harmless error, since it was not disputed that if the ulnar nerve injury was caused on the operating table, such would constitute a breach of the standard of care for both Kemp and Szmukler. Appellants’ counsel even stated in his closing argument, “The doctors admitted that if you accept [the injury] as caused on the operating room table, then that would fall below the standard of care....” (Tr.1123). In our view, the record reflects that the jury simply did not believe that the injury was caused by the appellees’ placement of the appellant-patient on the operating table.

Appellants’ final three points on appeal are likewise rejected. Appellants argue that the trial court erred in admitting into evidence the actual written finding of the mediation panel, as opposed to its conclusion only, in violation of section 768.-47(2), Florida Statutes (Supp.1976). There is no basis for error in the admission of this evidence since appellants put the findings before the jury first, by reading the entire mediation panel report in their opening argument after having been denied a motion in limine. We recognize that this was a tactical decision, but appellants are bound by it.

We also disagree with appellants’ assertion that it was error to admit the conclusion of the mediation panel because the panel lost jurisdiction to act. Pursuant to stipulation, the only mediation hearing held within the six-month jurisdictional period was before only one member of the panel. We need not review the decision reached in Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979), that the six-month period could not be extended by stipulation, because appellant waived his objection by not contesting the admission of the mediation finding at trial. This is not a “jurisdictional” matter which could not be waived, for while the mediation time periods are jurisdictional, the admission at trial of incompetent testimony (that is, the conclusion of the mediation panel) is not.

Finally, appellants’ assertion that they were entitled to a res ipsa loquitur instruction is also without merit. This is not a case where the facts and “circumstances attendant to the injury are such that, in the light of past experience, negligence is the probable cause and the defendant is the probable actor.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339, 1342 (Fla.1978). See Guzman v. Faraldo, 373 So.2d 66 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1195 (Fla.1980); Anderson v. Gordon, 334 So.2d 107 (Fla. 3d DCA 1976).

The judgment is affirmed.

It is so ordered.

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

SUNDBERG, C. J., dissents with an opinion, with which ENGLAND, J., concurs.

SUNDBERG, Chief Justice,

dissenting.

With one ill-advised and unarticulated stroke of the judicial pen, the majority today guts the one subject requirement of the Florida Constitution. Article III, section 6 provides that “[e]very law shall embrace but one subject and matter properly connected therewith, .. .. ” The rationale underpinning this provision is clear:

The object of this constitutional provision, which in substance has been placed in practically all of the constitutions of the several states, was to prevent hodgepodge, logrolling, and omnibus legislation. It had become quite common for legislative bodies to embrace in the same bill incongruous matters having no relation to each other, or to the subject specified in the title, by which means measures were often adopted without attracting attention. And frequently such distinct subjects, affecting diverse interests, were combined in order to unite the members who favored either in support of all.

Colonial Inv. Co. v. Nolan, 100 Fla. 1349, 1351,131 So. 178,179 (1930). As previously applied, the one subject requirement kept in check the insidious leverage inherent in logrolling by ensuring that legislative acts only encompass matters having a natural relation to one another. Id.

Chapter 76-260 is a paradigm example of a law embracing more than one subject. It arguably repeals over twenty sections of the Florida Insurance Code. The law can be structurally divided into three segments, the first dealing generally with an insurance scheme for medical malpractice claims, the second entitled “Unfair Methods of Competition and Unfair and Deceptive Acts and Practices,” and the third reverting back to a melange of medical malpractice provisions, from collateral sources of indemnity to additur and remittitur. The first segment includes provisions on a medical liability insurance commission, an internal risk management program, a medical incident committee, the establishment of an insurance risk apportionment plan, limitation of liability and patient’s compensation fund, membership of medical mediation panels, and purchase of medical insurance. The second segment wanders expansively over the insurance field with multifarious provisions on misrepresentations and false advertising of insurance policies, defamation, coercion and intimidation in the insurance business, unfair discrimination in the classification of life insurance rates, unfair claim settlement practices, insurance transactions through credit card facilities, interlocking ownership and management of insurance companies, an insurance policyholder’s “bill of rights,” and life insurance relations with funeral directors. The third segment reverts back to medical malpractice claims with sections on collateral sources of indemnity, standards of recovery in malpractice actions, certification of medical experts, and standards for additur and remittitur. The chapter, rather than dealing broadly with a unified subject, is haphazardly formulated and disjointed. “A legislator in initially considering [such] a bill should not be put to the choice of accepting provisions affecting a subject matter totally alien to provisions affecting a subject matter with which he is sympathetic.” State v. Lee, 356 So.2d 276, 287 (Fla.1978) (Sundberg, J., concurring in part and dissenting in part).

This case is distinguishable from State v. Lee, where the Court took a rather permissive view of the one subject requirement of article III, section 6. The majority in Lee characterized the chapter there under attack as dealing comprehensively with “automobile insurance rates and related insurance problems.” Id. at 282 (emphasis supplied). Here, chapter 76-260 ranges over almost the entire insurance field, incorporating wholly unrelated matters from medical malpractice insurance to life insurance to a policyholder’s “bill of rights.” Indeed, it strays from the insurance arena altogether in its inclusion of provisions on expert medical testimony and standards of tort recovery.

In the face of this legislative cyclone, the majority opinion blithely proclaims that the provisions of chapter 76-260 relate to tort litigation and insurance reform, which have a natural or logical connection. How? Why? The majority offers no explanation whatsoever for its remarkable conclusion. Can it seriously be argued that life insurance for funeral directors bears a natural connection to standards of liability in medical malpractice actions, or that the purchase of insurance through the use of credit cards is logically related to the judicial standards for additur and remittitur? I think not. If this chapter passes constitutional muster, one is hard put to envision a chapter which would not.

My disagreement with the Court’s opinion runs deeper still. My colleagues hold that appellant has waived his right to contest the clearly erroneous inclusion in evidence of the actual written finding of the mediation panel because appellant first read the finding to the jury during opening argument. This ignores the fact that in the course of denying appellant’s pretrial motion in limine on this subject, the trial judge specifically noted that he was going to allow the written finding to be admitted in evidence. In light of this ruling, appellant had every right, and indeed had no choice, but to comment upon the evidence in an attempt to mitigate the damage soon to be done by the erroneous inclusion of the written finding. Trial court error, not tactics, dictated appellant’s actions. The majority’s treatment of this issue is at best formalistic and ignores what actually occurred at trial.

For these reasons I must dissent.

ENGLAND, J., concurs.

      . MR. VARNER: Is it Your Honor’s ruling that this particular surgeon does not have the training, experience and knowledge to provide expert testimony?
      THE COURT: My ruling is that in order for him to be able to testify against these gentlemen, he should be certified.
      MR. VARNER: That he has to be Board certified?
      THE COURT: He has to be a specialist. I have made my ruling, whether it is right or wrong, you have a record here. Let’s not pursue it any longer. (Tr. 142)


author: PER CURIAM.

text:
    Lenson A. HARGRAVE, Appellant, v. STATE of Florida, Appellees.
    No. 59731.
    Supreme Court of Florida.
    April 2, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Seherker, Karen M. Gottlieb, Beth C. Weitzner and Robert R. Schrank, Asst. Public Defenders, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Appellant Lenson A. Hargrave brings this appeal to review the trial court’s denial of his motion to vacate sentence under Florida Rule of Criminal Procedure 3.850. Appellant was sentenced to death for first-degree murder on July 18, 1975. His conviction and sentence were affirmed by this Court on direct appeal. Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Hargrave filed his 3.850 motion to vacate and a motion for stay of execution on September 19, 1980. The trial court denied both motions ore tenus on September 26, 1980, followed by a written order filed on October 10, 1980. The 3.850 motion asserts a multitude of grounds for relief, from constitutional and non-constitutional error in the guilt phase of the trial to alleged fundamental defects in the sentencing process. The trial court found, and we so hold, that the issues raised by appellant either were or could have been raised on direct appeal, or they involve changes in decisional law not cognizable in a 3.850 motion. See Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert, denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); State v. Matera, 266 So.2d 661 (Fla. 1972); Witt v. State, 387 So.2d 922 (Fla. 1980), cert. denied, - U.S. -, 101 S.Ct. 796, 66 L.Ed.2d 612.

Accordingly, the order of the trial court denying 3.850 relief is affirmed, and the motion for stay of execution pending disposition of this appeal is denied.

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

       On September 23, 1980, Hargrave brought a petition for writ of habeas corpus in this Court, alleging ineffective assistance of appellate counsel due to to counsel’s failure to raise two issues on direct appeal. We denied the petition on September 24, 1980. Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980).