text:
    Robert Lewis BUFORD, Appellant, v. STATE of Florida, Appellee.
    No. 54010.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Oct. 14, 1981.

      Jack O. Johnson, Public Defender, and James R. Wulchak and Douglas A. Lockwood, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr. and Richard G. Pippinger, Asst. At-tys. Gen., Tampa, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and guilty of sexual battery upon a child under eleven years of age, and imposing two sentences of death. Defendant was also adjudged guilty of burglary with intent to commit a sexual battery and sentenced to a term of years.

In the early morning hours of Sunday, November 6, 1977, Lewis Wright, father of the victim, fell asleep on the living room sofa while he and his children were watching television. His children were on a pallet on the living room floor. Wright awakened about 2:30 or 3:00 o’clock a. m., turned off the television, and went to his bedroom. He did not notice if all of his children were still sleeping on the pallet. On his way to the bedroom he observed that the back door of the house was open, but assumed that the children’s grandmother had visited the house while he was sleeping and had exited through the back door.

Lewis Wright awoke again about 7:00 o’clock a. m. and noticed that the victim, his seven-year-old daughter, Toni, was missing. Wright notified police; shortly thereafter the victim’s body was discovered next to a nearby church. She was lying on her back in a flower bed, with her dress pulled up around her chest and her underpants a short distance away. There were injuries to her head and dried blood on her head and face. Pieces of a shattered and bloodstained concrete block were found nearby.

At approximately 3:00 o’clock a. m. on Sunday, November 6, 1977, the defendant returned to his father’s home where he was greeted by his sister, Annette Buford. She observed him breathing hard, as if he had just been running and saw him carrying his t-shirt and tennis shoes. He had white oxydized paint on his bare back and appeared to be drunk. Defendant told his sister if anyone came looking for him to say that he had been at home since 11:00 o’clock p. m. In a few moments defendant broke down and stated that he might have killed a lady with a brick. He started to implicate a person known as “Fat Boy”, but immediately stopped, saying he was not going to involve anyone else.

While at his father’s home later in the day, the defendant talked both of leaving home and of turning himself over to police. On Monday night defendant went to the police station, after his sister had talked with police about his role in the crime. He was arrested for murder, sexual battery, and burglary with intent to commit sexual battery. After being advised of his legal rights, defendant signed a written waiver of these rights and blurted out, “I did it.” He was again advised of his rights in the interrogation room, and he again waived these rights. In his statement defendant said he broke into Wright’s house through a back window. Upon entering, he saw the girl lying there, picked her up, and carried her out the back door. He took her to the church area, had her lie down and remove her clothes. He removed his clothing and then inserted his finger into her vagina. He did not move his finger; he just put it in and later took it out. He admitted penetration with his penis. When the victim started screaming, the defendant picked up a concrete block and dropped it twice on the victim’s head. The defendant said he was not trying to kill her but to stop her from screaming. The victim had recognized the defendant.

After the statement was concluded, the defendant signed a consent form to search his room at his father’s house for the jeans he had been wearing on the night of the incident. These jeans were recovered. A lab analysis of a blood spot on the jeans indicated that it was of the same type as the victim’s blood.

With defendant’s consent, the officers secured blood and hair samples from him. While the doctor was examining defendant and taking samples, the doctor pointed out various cuts and scratches on defendant’s body. When the doctor was noting a set of scratches, the defendant said, “Those were not made by the little one.”

A pubic hair that was discovered in the victim’s vagina was consistent in characteristics with the sample taken from the defendant. Both the pubic hair found on the decedent and the sample taken from the defendant contained an unusual “starchy” substance. The child was too young to have pubic hair of her own; she was only seven years old.

At trial, the defendant testified that although he had participated in the sexual battery, a man known as “Fat Boy” had raped and killed Toni. Defendant said he refused to climb inside the Wright home because he was known by them. His testimony was that Fat Boy climbed through the window while defendant stood outside. When Fat Boy did not return for a while, defendant left. A few minutes later defendant met Fat Boy again. This time Fat Boy was carrying Toni Wright. Upon questioning her, Toni said that she knew defendant but did not know Fat Boy. Fat Boy carried Toni to the church area and commanded her to lie down. Defendant admitted having sexual intercourse with Toni while Fat Boy watched. Toni did not scream while defendant was on top of her. Defendant got dressed and was planning to leave when Fat Boy commenced sexual intercourse with Toni. Toni started screaming. Defendant turned around to face them and saw Fat Boy drop a concrete block on the girl’s head. Fat Boy picked up the brick to drop it again and defendant charged at him to prevent it. Fat Boy threw defendant against the wall and dropped the brick again. Fat Boy left when defendant refused to allow him to go home with him.

The police officers learned about Fat Boy and his alleged involvement in the incident from the defendant’s sister before the trial took place. After an investigation, Fat Boy was eliminated as a suspect by virtue of an alibi. Defendant was charged by indictment with the offenses of first-degree murder, capital sexual battery, and burglary with intent to commit a sexual battery. The jury found defendant guilty on all three counts. The case then proceeded into the penalty phase of the bifurcated trials. The jury recommended to the court that it impose a life sentence on both the murder and sexual battery convictions. The trial court then made the following findings of fact:

In making the following findings of fact and conclusions of law the Court has taken into consideration only the testimony produced at trial and no other factors.
As to Count One of the Indictment wherein defendant was convicted of First Degree Murder the Court makes the following findings of fact:
1. As an aggravating circumstance, the capital felony, that is, the murder of Toni Annette Wright, a black female, age seven (7) years, was committed while the defendant, Robert Lewis Buford, was engaged in the commission of the crime of sexual battery. F.A. 921.141(5)(d). The evidence is conclusive that the crime of sexual battery was complete and that sufficient penetration occurred. The defendant’s free and voluntary statement to law enforcement officers supports this finding together with his testimony in his own behalf during the trial. The defendant attempted to repudiate his previous confession to create an accomplice by the name of “Fat Boy”, however, the Court specifically rejects this testimony as being an untrue and a total fabrication.
2. As a further aggravating circumstance the Court finds that the capital felony was especially heinous, atrocious and cruel. F.A. 921.141(5)(h). The testimony amply supports a finding that this seven (7) year old child was abducted from her home, while asleep by a nineteen (19) year old adult male, that she was taken to a secluded spot where the defendant brutally sexually assaulted her. After he had fulfilled his lustful desires and ascertained that the victim would be in a position to identify him, the defendant snuffed out the life of this child by crushing her head with a concrete block dropped at heights from at least waist high. The testimony of the pathologist, Dr. Robert Smith, reveals at least three (3) separate crushing wounds and the defendant “admits” to dropping the thirty-two (32) pound concrete block on the victim’s head twice. The Court specifically rejects as untrue and as a fabrication, the defendant’s testimony that the victim was killed by this so called accomplice “Fat Boy”. Dr. Robert Simth viewed the victim’s body at the scene and testified that the child was covered with sand and that there was evidence of an extensive struggle. The Court finds that the struggle was between the defendant and the seven (7) year old child and that no other person was involved. The pathologist testified that he found numerous abrasions over the entire body of this child, with extensive amounts of blood coming from the nose and mouth areas. Three (3) severe wounds were found in the head area, two (2) on the right side and one (1) almost in the midline in the back of the head, indicating at least three (3) separate blows. The skull was extensively fractured resulting in numerous fragments of the skull becoming depressed directly into the brain. Multiple recent abrasions were found on the child’s right arm and on her right chest area.
The pathologist was of the opinion that any of the three (3) separate blows would have been sufficient to cause death and that the child may have lived for at least an hour after the first blow but that she would have lost consciousness fairly rapidly.
The pathologist also testified that he visually observed extensive trauma to the genital area and that his autopsy revealed acute perforation of the hymen resulting in acute hemorrhaging from the hymenal area. The autopsy revealed numerous bleeding points in the lining of the vagina itself and the presence of five (5) cc’s of seminal fluid within the vagina.
Although the defendant in his statement and in his testimony denied that the victim made any outcry while she was being sexually abused the Court rejects this testimony as being unbelievable and patently untrue and finds as a matter of common understanding and knowledge that a seven (7) year old virginal child would suffer excruciating pain as her vagina was being penetrated first by the defendant’s finger and then by his adult penis.
The standard jury instructions define heinous as meaning extremely wicked or shockingly evil. Atrocious is defined as outrageously wicked and vile. Cruel means designed to inflict a high degree of pain; utter indifference to, or enjoyment of, the suffering of others; pitiless. In the Court’s experience of seven (7) years as an Assistant Prosecuting Attorney and six (6) months on the bench, I am not aware of a case where a defendant’s conduct more clearly falls within the definition of heinous, atrocious, and cruel.
3.The other aggravating circumstances: F.S. 921.141(5)(a); 921.141(5)(b); 921.141(5)(c); 921.141(5)(e); 921.141(5)(f); 921.141(5)(g), are inapplicable in this case.
As to mitigating circumstances involving both the charge of first degree murder and the charge of sexual battery, the Court makes the following findings:
1.The defendant has no significant history of prior criminal activity. F.S. 921.141(6)(a), and this a mitigating factor.
2. As to F.S. 921.141(6)(b), there is no evidence that the capital crimes were committed while the defendant was under the influence of extreme mental or emotional disturbance. The defendant’s mother testified that for several weeks prior to the crime the defendant had been using alcohol and marijuana extensively but the Court finds that this alcohol and marijuana usage do (sic) not result in extreme mental or emotional disturbance.
3. As to F.S. 921.141(6)(c), there is absolutely no evidence that the victim was a participant in the defendant’s conduct or that she consented to the act.
4. As to F.S. 921.141(6)(d), the defendant attempted to establish by his testimony that he was merely an accomplice to these offenses and that his participation was relatively minor, however, he did “admit” to having sexual intercourse with this seven (7) year old child, and as the Court has stated above, his testimony that this so called “Fat Boy” was an accomplice is rejected as being untrue.
5. As to F.S. 921.141(6)(e), there is no evidence that the defendant was under extreme duress or under the substantial domination of any person.
6. As to F.S. 921.141(6)(f), there is no believable evidence that the defendant lacked the capacity to appreciate the criminality of his conduct or that his ability to conform his conduct to the requirements of law was substantially impaired. On the contrary, the fact that the defendant sought to eliminate Toni Annette Wright because she would be in a position to identify him supports a finding that the defendant appreciated the criminality of his conduct.
7. As to F.S. 921.141(6)(g), the defendant was nineteen (19) years at the time of these offenses and his age is therefore, a mitigating circumstance. The Court notes, in passing, that as to sexual battery the legislature found that the age of the defendant was a factor to be taken into account in determining whether the sexual battery is a capital crime.
As to Count Two of the indictment wherein the defendant was convicted of sexual battery wherein the victim was eleven (11) years of age or younger and the defendant was over eighteen (18) years of age, the Court makes the following findings of fact:
1. As an aggravated circumstance, the capital felony was especially heinous, atrocious and cruel. F.A. 921.141(5)(h). In support of this finding the Court readopts the findings contained in paragraph 2 above.
2. The other aggravating circumstances to-wit: F.S. 921.-141(5)(a)(b)(c)(d)(e)(f)(g), are inapplicable to this charge.
The trial jury has rendered its advisory sentence to the Court recommending that a sentence of life imprisonment be imposed on the defendant as to each of these capital crimes. Our Florida Supreme Court has stated that the recommendation of the trial jury is to be accorded great weight by the trial judge but I perceive the law still to be that the recommendation of the trial jury is not binding on the trial judge and that I still have the awesome responsibility of making the ultimate determination of whether the aggravating circumstances do in fact outweigh any mitigating circumstances and accordingly whether the death penalty should be imposed. In the following cases the trial judge declined to follow the recommendation of the trial jury and the imposition of the death penalty was subsequently affirmed by the Florida Supreme Court: Hoy vs. State, 353 So.2d 826 (1977); Barclay vs. State, 343 So.2d 1266 (1977); Dobbert vs. State, 328 So.2d 433 (1976); Douglas vs. State, 328 So.2d 18 (1976); a case originating from this Circuit; Gardner vs. State, 313 So.2d 675 (1975); and, Sawyer vs. State, 313 So.2d 680 (1975). A review of the factual statements in these cases leads the Court to the conclusion that this defendant’s conduct was at least equal to the conduct of the defendants in each of those capital cases.
It is the ultimate finding and determination of the Court that as to the charge of first degree murder, the aggravating circumstances substantially outweigh the mitigating circumstances and therefore the death penalty should be imposed upon the defendant, the recommendation of the trial jury to the contrary notwithstanding.
As to the charge of sexual battery, the aggravating circumstances outweigh the mitigating circumstances and therefore the death penalty should be imposed upon the defendant, the recommendation of the trial jury to the contrary notwithstanding.

Upon appeal the defendant says that he could not be convicted and sentenced for both the first-degree felony murder and the underlying felonies, sexual battery and burglary, relying upon the principles enunciated in Pinder v. State, 375 So.2d 836 (Fla.1979). Pinder was a prosecution for first-degree murder, sexual battery and burglary. The Court commented that the jury could have found defendant guilty of first-degree murder only on the basis of evidence that the defendant killed the victim during the perpetration of the burglary or sexual battery, as there was no evidence of premeditation. Therefore, the Court held, defendant could not be convicted of felony murder and the underlying felony upon which the murder conviction was based. If, in addition to the killing, the defendant commits more than one felony, only one of the felonies need be considered the underlying felony and the defendant may be convicted and sentenced for the other felonies. The Court relied upon Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

In the case sub judice there was ample evidence from which the jury could have found premeditation. Although the defendant, at one point, declared that he did not intend to kill the victim; nevertheless, he also said that he dropped the concrete block on the victim “because she knowed me.” He also stated that after the sexual battery he took a cement block, held it “a little higher than the waist — -right here” and dropped it on the child. He did it again. This time he lifted it higher. He bent down to see if she was still alive and she was not.

If the evidence shows that the accused had ample time to form a purpose to kill the deceased and for the mind of the killer to become fully conscious of his own design, it will be deemed sufficient in point of time in which to enable the killer to form a premeditated design to kill. Green v. State, 93 Fla. 1076, 113 So. 121, 122 (1927). Where a person strikes another with a deadly weapon and inflicts a mortal wound, the very act of striking such person with such weapon in such manner is sufficient to warrant a jury in finding that the person striking the blow intended the result which followed. See Rhodes v. State, 104 Fla. 520, 140 So. 309, 310 (1932).

There being adequate proof of premeditation, the principles announced in Pinder are not applicable to this case.

Defendant also said that the offenses are not sufficiently distinguishable to permit the imposition of cumulative punishment. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of the facts which the other does not. Brown v. Ohio. Murder in the first degree through premeditation requires proof of a fact not required in sexual battery: premeditated design to kill.

It is true, as asserted by defendant, that the double jeopardy clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In the absence of proof of premeditated design, this principle would be applicable to the case sub judice. The two offenses are sufficiently distinguishable so as to permit two convictions and two punishments.

Defendant also complained that the court improperly limited cross-examination of two state witnesses regarding their knowledge of defendant’s non-violent nature. Witnesses Barnes and Hayes were friends of the defendant. Barnes testified as to activities of the defendant until 11:00 o’clock p. m. the night of the homicide. Hayes testified as to his activities until 2:00 o’clock a. m. the same night. On cross-examination the attorney for defendant asked Barnes if he found defendant “to be a quiet, non-violent person.” On cross-examination counsel for defendant asked Hayes if he had known defendant “to get violent or anything like that.” There were no facts elicited by the state upon direct examination relative to defendant’s propensity for violence. It is true that cross-examination extends to the entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief. Coxwell v. State, 361 So.2d 148 (1978). However, the attempted cross-examination in the case sub judice was in no way relative to the direct examination of the witnesses. It was improper cross-examination.

In addition the question itself was improper. Defendant had a right to produce evidence of his non-violent character, but this is done through his own witnesses. In any event, he could only have elicited evidence of his general reputation in the community, not specific instances of non-violence. Prevatt v. State, 82 Fla. 284, 89 So. 807 (1921); Reddick v. State, 25 Fla. 112, 5 So. 704 (1889).

Defendant next contends that section 921.141, Florida Statutes (1977), is unconstitutional because it restricts the mitigating circumstances to be considered to those enumerated in the statute. He says this violates the Eighth and Fourteenth Amendments to the United States Constitution. This question was raised when defendant moved to dismiss or quash the indictment. Also he requested a jury instruction stating that mitigating circumstances which the jury could consider were not limited to those listed in the statute. The trial court denied the motion to dismiss or quash and also denied the requested instruction. The record does not show that the trial judge precluded defendant from offering any evidence of mitigation. The trial judge correctly ruled that the standard jury instructions adequately covered the instructions on mitigating circumstances.

Defendant argues that the death penalty statute is unconstitutional in light of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), where the Supreme Court held that the limited range of mitigating circumstances which could be considered by the sentencer under the Ohio statute was incompatible with the Eighth and Fourteenth Amendments. The identical attack was made upon the Florida statute in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). There the Fifth Circuit held that the Florida statute as applied and construed by the Supreme Court of Florida conforms to the decision rendered in Lockett v. Ohio. In several cases this Court has recognized the relevance of non-enumerated mitigating circumstances and utilized them in determining the propriety of the sentence. See Buckrem v. State, 355 So.2d 111 (Fla.1978); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Messer v. State, 330 So.2d 137 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976); Jones v. State, 332 So.2d 615 (Fla.1976); Chambers v. State, 339 So.2d 204 (Fla.1976); Halliwell v. State, 323 So.2d 557 (Fla.1975). It is clearly established that all relevant evidence pertaining to the character of the defendant and circumstances of the crime may be considered by the sentencer in Florida. Lockett does not invalidate our statute.

Defendant says the imposition of the death sentence upon him for the murder conviction, where he did not possess a purpose to cause the death of the victim, is unconstitutional. This assertion is without foundation in the record. There was sufficient proof of premeditation.

Section 794.011(2), Florida Statutes (1977), provides that whoever being eighteen years or older commits a sexual battery upon a person eleven years of age or younger, is guilty of a capital felony. The defendant was nineteen years of age at the time of the offense and his victim was seven years of age. In his motion to dismiss, defendant challenged the constitutionality of this statute, contending that punishment by death for the crime of sexual battery constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. By denying the motion to dismiss and imposing the death penalty, the trial court held that the statute was constitutional. This question has not been decided under present Florida law. We have recently considered sexual battery cases in which the penalty had been imposed, but we reduced the sentence to life imprisonment in both cases because of the particular circumstances. Purdy v. State, 343 So.2d 4 (Fla.), cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977); Huckaby v. State, 343 So.2d 29 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977).

Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), involved the sentencing of a man convicted of rape upon the verdict of a Georgia jury. The Georgia jury recommended the death penalty and the trial court imposed a death sentence. The Georgia Supreme Court affirmed. The Supreme Court of the United States held that the punishment of death for the rape of an adult woman violates the cruel and unusual punishment clause of the Eighth Amendment because it is grossly disproportionate and excessive in relation to the crime committed. The Court has yet to decide whether the same holds true for the rape of a child under eleven years of age. In its plurality opinion (Justices White, Stewart, Blackmun, and Stevens) the Court noted that Georgia was the only state which authorized a sentence of death when the rape victim was an adult woman. Only two other jurisdictions (Florida and Mississippi) provided capital punishment when the victim was a child. It was then said in the opinion:

Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which “is unique in its severity and irrevocability,” Gregg v. Georgia, 428 U.S. [153] at 187, 96 S.Ct. 2909, [at 2931,] 49 L.Ed.2d 859, is an excessive penalty for the rapist who, as such, does not take human life.
This does not end the matter; for under Georgia law, death may not be imposed for any capital offense, including rape, unless the jury or judge finds one of the statutory aggravating circumstances and then elects to impose that sentence. Ga.Ann.Code § 26-3102 (1976 Supp.); Gregg v. Georgia, supra, at 165-166, 96 S.Ct. 2909 [at 2921-2922], 49 L.Ed.2d 859. For the rapist to be executed in Georgia, it must therefore be found not only that he committed rape but also that one or more of the following aggravating circumstances were present: (1) that the rape was committed by a person with a prior record of conviction for a capital felony; (2) that the rape was committed while the offender was engaged in the commission of another capital felony, or aggravated battery; or (3) the rape “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim. Here, the first two of these aggravating circumstances were alleged and found by the jury.
Neither of these circumstances, nor both of them together, change our conclusion that the death sentence imposed on Coker is a disproportionate punishment for rape. Coker had prior convictions for capital felonies — rape, murder, and kid-naping — but these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life.

433 U.S. at 598-599, 97 S.Ct. at 2869 (footnotes omitted).

Justices Brennan and Marshall concurred in the judgment as each believed that the death penalty in all circumstances is cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Justice Powell concurred in the judgment, but would not prejudge the issue of capital punishment in the case of an outrageous rape resulting in serious, lasting harm to the victim. Justice Burger and Rehnquist dissented. The reasoning of the justices in Coker v. Georgia compels us to hold that a sentence of death is grossly disproportionate and excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment.

We point out that section 782.04, Florida Statutes (1977), defines murder in the first degree as the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any sexual battery. Since the death sentence sub judice is sustained under the conviction of premeditated murder, the constitutionality of the statute imposing the death penalty for sexual battery becomes academic. Capital punishment can be inflicted only once.

The defendant says that the death sentence should be vacated in the murder conviction because there was no evidence to support the finding of the trial judge that the crime was heinous, atrocious, and cruel. Defendant refers us to State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), where we held that atrocious means outrageously wicked and vile and that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. Defendant insists that when the facts of this case are compared with previous decisions of this Court the findings of the trial judge cannot be upheld. He cites Halliwell v. State, 323 So.2d 557 (Fla.1975). In Halli-well the killing arose from a love triangle in which defendant flew into a violent rage after the husband of the woman he loved had beaten her. It was an emotional type of homicide. However, hours later the defendant dismembered the body. We held that the dismemberment of the body after death was not relevant in fixing the death penalty. ■ Since the dismemberment was not relevant, a killing committed in an emotional rage was not heinous, atrocious, or cruel. In the case sub judice there was no emotional rage. The defendant kidnapped a seven-year-old child for the purpose of sexually abusing her and when he felt she could identify him, defendant proceeded to kill her with a cement block.

In Burch v. State, 343 So.2d 831 (Fla.1977), cited by defendant, there was evidence that the defendant was mentally disturbed at the time of the offense. We held this to be a mitigating factor and that this factor was obviously considered by the jury in recommending life and improperly rejected by the trial judge. When this mitigating circumstance was weighed against the aggravating circumstances, the judge’s rejection of the jury’s recommendation was overturned by this Court. In Burch we did not say that the act was not especially heinous, atrocious, or cruel.

In Chambers v. State, 339 So.2d 204 (Fla.1976), the defendant and the victim shared a long-standing relationship which included severe and disabling beatings. Also, the victim had consented to the beatings which caused death. We held that the totality of circumstances and the weighing of mitigating and aggravating circumstances did not warrant the imposition of the death penalty on the defendant.

Jones v. State, 332 So.2d 615 (Fla.1976), cited by defendant, resulted in the approval of the jury’s recommendation of a life sentence because the defendant’s mental illness was considered as a factor to be weighed.

The imposition of the death penalty was held to be proper in Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979), where the victim was kidnapped and held captive for twenty-four hours before being stabbed to death while tied, spreadeagled and helpless, on a bed, crying out and moaning as the stabbing continued.

Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976), involved a defendant twenty-seven years of age who was convicted of the murder of a thirteen-year-old female. The victim’s body was discovered lying atop a trash pile. She had been raped and shot to death, execution style. Her nude body was found blindfolded, with bullet wounds in her head, chest, back and arm. We upheld the death sentence and described the act as being especially heinous, atrocious, and cruel.

The homicides in Proffitt v. State, 315 So.2d 461 (Fla.1975), aff’d, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (stabbing a man asleep in his bed), and Spinkellink v. State, 313 So.2d 666, (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976) (shooting a sleeping companion), were heinous, atrocious, and cruel. So the instant case certainly qualified as one which is heinous, atrocious and cruel. The mental anguish suffered by the victim preceding the killing is a factor that may be considered in determining whether the act was especially heinous, atrocious, or cruel. Knight v. State, 338 So.2d 201 (Fla.1976).

Defendant also cites, in support of his position, the case of Purdy v. State, 343 So.2d 4 (Fla.), cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977). Purdy involved a sexual battery on a child and the imposition of the death sentence was based primarily on the aggravating circumstance of heinous, atrocious, and cruel. We held that the evidence failed to show that the sexual battery of this child was especially aggravated under the terms of the death sentence law. We pointed out there was no evidence of physical abuse other than the sexual assault and the victim was not physically harmed. The case sub judice was more than a sexual assault. There was a kidnapping and physical harm which resulted in death. In Washington v. State we observed that the mental anguish experienced by a kidnapped victim awaiting eventual death bears upon the atrocity of the crime. This contention is without merit.

Defendant then contends that the trial court erred in not finding the additional mitigating factors which were present in the evidence. He complains that the trial court rejected the mitigating circumstances of extreme mental or emotional disturbance or impaired mental capacity, discounting the effects of defendant’s consumption of alcohol, drugs, and marijuana. Obviously the ability of the defendant to give a detailed account of the crime was inconsistent with the contention that he had a diminished or impaired mental capacity because of excessive consumption of alcohol, drugs, and marijuana. In view of the testimony presented, the trial judge correctly rejected defendant’s “drinking” and “drug use” as a mitigating factor. Jones v. State, 332 So.2d 615 (Fla.1976), does not avail defendant because in Jones there was extensive psychiatric evidence to the effect that the defendant did not know the difference between right and wrong.

Defendant raises the possibility that he was a mere accomplice and that this theory was not considered by the trial judge. During the course of the investigation and during the trial, the defendant did attempt to implicate Fat Boy. This theory was rejected by the trial judge in weighing the evidence produced at the trial.

Defendant contends that the trial court committed error in rejecting the jury’s recommendations of life imprisonment, relying upon Tedder v. State, 322 So.2d 908 (Fla.1975). In Tedder we pointed out that the recommendation of the jury should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.

In Malloy v. State, 382 So.2d 1190 (Fla.1979), the Court said:

We have repeatedly stated that in reviewing the propriety of a death sentence, this Court must weigh heavily the advisory opinion of life imprisonment by the sentencing jury. The facts justifying the death sentence must be clear and convincing in order to overrule the jury’s recommendation. Therefore, we must examine this record to determine whether there are clear and convincing facts that warranted the imposition of the death penalty, and, in doing so, we must determine if there was a reasonable basis for the jury’s recommendation.

Id. at 1193. (Citations omitted.)

If defendant’s testimony were accepted as creating a reasonable doubt, he should not be found guilty of murder in the first degree for his participation in the murder would not be proved. Defendant said he was leaving the scene, turned around when the victim screamed, and saw Fat Boy drop a concrete block on her head.

A convicted defendant cannot be “a little bit guilty.” It is unreasonable for a jury to say in one breath that a defendant’s guilt has been proved beyond a reasonable doubt and, in the next breath, to say someone else may have done it, so we recommend mercy.

This case is unlike Neary v. State, 384 So.2d 881 (Fla.1980), where an accomplice receiving lesser punishment played a significant role in the perpetration of the criminal act. Here the defendant committed the murder or Fat Boy did it. This question was settled by the verdict of guilty.

The trial court reviewed other cases where this Court has affirmed the death penalty after a recommendation by the jury of life imprisonment. The trial judge made a specific finding that defendant’s actions in the case sub judice at least equaled the conduct in those cases. This finding is supported by the evidence. Consequently, it comes to this Court with the presumption of correctness.

In Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Dobbert v. State, 328 So.2d 433 (Fla.1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976); and Sawyer v. State, 313 So.2d 680 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976), this Court found compelling reasons to reject the jury’s recommendations.

Unquestionably the Court in each of these cases was swayed by the extreme heinousness and atrociousness of the crimes. So was the trial court in the instant case. In all of the above cases, with the exception of Dobbert, the victim was an adult. Here it was a seven-year-old child. She had been kidnapped, subjected not only to sexual abuse, but to the anguish of perceiving that she was about to have her head crushed, and this mental anguish bears on the atrocity of the crime. Washington v. State. The trial judge exercised a reasoned judgment, and the facts suggesting a sentence of death were so clear and convincing that virtually no reasonable person could differ.

The trial judge was not required to request a presentence investigation before sentencing the defendant. Hargrave v. State, 366 So.2d 1 (Fla.), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Thompson v. State, 328 So.2d 1 (Fla.1976).

The sentence of death imposed for conviction of sexual assault is vacated. Section 775.082(1), Florida Statutes, mandates a punishment of life imprisonment with a requirement that defendant serve no less than twenty-five years before becoming eligible for parole. This is an automatic sentence, and the Court has no discretion. Sufficient factors are present in this case to create an exception to Florida Rule of Criminal Procedure 3.180 requiring the presence of defendant at sentencing. See Anderson v. State, 267 So.2d 8 (Fla.1972). The defendant, for the crime of sexual battery upon a child under eleven years of age, shall be imprisoned for life, with no eligibility for parole during the first twenty-five years.

We have carefully reviewed the evidence in this case and find that the judgments of guilt and the sentence of death for murder, as well as the sentence to a term of years, were appropriate. These judgments and sentences of the trial judge are therefore affirmed.

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

ENGLAND, J., concurs as to the conviction and dissents as to the sentence.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    Ricardo REDONDO, Petitioner, v. STATE of Florida, Respondent.
    No. 59032.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Oct. 9, 1981.

      Peter Kutner, Law Office of Henry R. Carr, Miami, for petitioner.
    Jim Smith, Atty. Gen., James H. Greason and Theda R. James, Asst. Attys. Gen., Miami, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision in Redondo v. State, 380 So.2d 1107 (Fla.3d DCA 1980). We find express and direct conflict with Mahaun v. State, 377 So.2d 1158 (Fla.1979), and therefore have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioner was charged by a two-count information with aggravated battery and the unlawful possession of a firearm while engaged in the commission of a felony. The case was tried before a jury. On the aggravated battery charge, the jury returned a verdict of guilty of the lesser included offense of simple battery. On the firearm charge, the jury found petitioner guilty as charged of possession of a firearm during the commission of a felony.

The trial court initially entered judgment on both convictions, but later granted a motion for arrest of judgment on the firearm charge on the ground that it was inconsistent with the jury’s acquittal of petitioner on the underlying felony charge.

On appeal, the district court reversed the judgment of conviction of simple battery due to an error the trial court made in instructing the jury. The case was ordered remanded for a new trial on a charge of simple battery, since a re-trial of the aggravated battery accusation was barred by the Double Jeopardy Clause.

The state cross-appealed the trial court’s order in arrest of judgment on the firearm charge. The district court reversed the order, reasoning that although technically inconsistent with the jury’s verdict on the underlying felony charge, the guilty verdict for possession of a firearm during the commission of a felony was within the power of the jury to return. Although holding that the trial court erred, the appellate court declined to simply reinstate the judgment, since the same error in jury instructions that called for a new trial on the battery accusation also required one on the firearm possession charge. The court remanded for a new trial for the misdemeanor of simple battery and the crime of possession of a firearm during the commission of a felony.

In Mahaun v. State, 377 So.2d 1158 (Fla.1979), the appellants were charged with third-degree felony murder and aggravated child abuse. Patricia Mahaun was found guilty by the jury of third-degree felony murder and child abuse by culpable negligence, a lesser included misdemeanor of the felony of aggravated child abuse. We concluded that by returning the verdict of guilty of the misdemeanor the jury had acquitted her of the felony of aggravated child abuse. We held that since the felony of aggravated child abuse was an essential element of the felony murder, Mrs. Mahaun could not be convicted on the latter charge.

In the present case the jury in effect acquitted petitioner of the felonies of aggravated battery and attempted aggravated battery when it found him guilty of the lesser included offense of simple battery, a misdemeanor. The existence of a felony or an attempted felony is an essential element of the crime of unlawful possession of a firearm during the commission of a felony. § 790.07(2), Fla.Stat. (1977). Therefore, petitioner may not be convicted of that crime. A conviction for unlawful possession of a firearm during the commission of a felony must stand or fall in conjunction with the underlying felony. Ferrell v. State, 358 So.2d 843 (Fla.3d DCA 1978), cert. denied, 366 So.2d 885 (Fla.1979).

That portion of the district court decision that reversed the trial court’s order in arrest of judgment is quashed. We remand the case to the district court with directions to reinstate the trial court’s order and to remand for a new trial on the charge of simple battery.

It is so ordered.

ADKINS, OVERTON and ALDERMAN, JJ., concur.

SUNDBERG, C. J., and ENGLAND and McDONALD, JJ., dissent.

      . Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.


author: McDONALD, Justice. ALDERMAN, Justice,

text:
    John Hunter RAY, Petitioner, v. STATE of Florida, Respondent.
    No. 57795.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 9, 1981.

      Lawrence E. Staab and David Paul Montgomery of Staab & Montgomery, Braden-ton, for petitioner.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for respondent.
   McDONALD, Justice.

We have accepted jurisdiction to resolve conflict created by Ray v. State, 374 So.2d 1002 (Fla.2d DCA 1979), and Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975). Art. V, § 3(b)(3), Fla. Const. (1972). The issue to be determined is whether a defendant convicted of a crime for which he was not charged, but which was submitted to the jury as a lesser included offense when in fact it was not, may challenge that conviction when he failed to object to the submission of that crime to the jury. We quash the instant decision.

Under section 794.011(5), Florida Statutes (1975), an information alleged that Ray “did commit a sexual battery upon. . ., a person over the age of eleven, without her consent, and in the process thereof used physical force and violence not likely to cause serious personal injury.” Besides instructing on sexual battery, the trial court

also instructed the jury on committing a lewd and lascivious act as a lesser included offense of sexual battery. The jury convicted Ray of lewd assault as proscribed by section 800.04, Florida Statutes (1975).

Two days after the jury rendered its verdict, Ray filed motions for a new trial and to arrest judgment. As grounds for relief, these motions alleged that Ray was convicted of an offense not charged because lewd assault is not a lesser included offense of sexual battery. The trial court denied both motions, and Ray appealed his conviction and sentence to the district court. That court affirmed the conviction.

An incomplete record was presented to the district court. Specifically, the charge conference had not been recorded. Trying to fill this gap, the court ordered a reconstruction of the conference. In response, defense counsel neither admitted nor denied requesting the lewd and lascivious charge and stated that, upon the court’s announcement that the charge would be given, neither counsel objected to or commented on the charge at any time. The prosecutor agreed with this statement, but considered it unlikely that the charge was not discussed. The judge responded that at the time of Ray’s trial she never charged on a lesser included offense unless requested to do so by one of the parties.

The lack of a complete record, even as reconstructed, placed the Second District in the unenviable position of having to guess at what occurred during the charge conference. After scrutinizing the record as reconstructed, the court found that Ray could, and should, have objected to the improper instruction at several points in the proceedings. Concluding that any “error was invited — -if not induced,” the district court held that he had waived any error or else was estopped to claim error for the first time on appeal. 374 So.2d at 1003.

To dispose of this case, we must first determine whether committing a lewd and lascivious act on a minor under the age of fourteen is a lesser included offense of sexual battery of a person over the age of eleven. In Brown v. State, 206 So.2d 377 (Fla.1968), this Court identified four categories of lesser included offenses. Committing a lewd and lascivious act is not a necessarily lesser included (type 3) offense of sexual battery. Walker v. State, 351 So.2d 382 (Fla. 4th DCA 1977). Nor is it a category 4 lesser included offense in the instant case because the information did not contain all the elements specified in section 800.04. See id.; Brown. It is also not “lesser” because both section 794.011(5) and section 800.04 are second-degree felonies. Thus, Ray was convicted of a crime for which he was not charged and which was not a permissible lesser included offense of the crime for which he was charged.

Ray claims that convicting him of a crime not charged constitutes fundamental error which is per se reversible. To support this claim, Ray relies on Minor v. State, 329 So.2d 30 (Fla.2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla.2d DCA 1975); O’Neal v. State, 308 So.2d 569 (Fla.2d DCA), overruled in Roberts v. State, 320 So.2d 832 (Fla.2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975); and Johnson v. State, 226 So.2d 884 (Fla.2d DCA 1969). In these cases, the Second District found that erroneous instructions on lesser included offenses, are indeed, fundamental error.

These Second District cases are unanimous in characterizing faulty instructions on lesser included offenses as fundamental error regardless of the defendant’s failure to object. The Fourth District Court of Appeal reached the same conclusion in Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976), and Priester v. State, 294 So.2d 421 (Fla. 4th DCA 1974). All of these cases speak of fundamental error; in other eases, erroneous lesser included instructions have been found to be reversible, but not fundamental, error. See Smith v. State, 365 So.2d 405 (Fla.3d DCA 1978); Hicks v. State, 362 So.3d 730 (Fla.2d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979); Walker v. State, 351 So.2d 382 (Fla.4th DCA 1977); Evanco v. State, 318 So.2d 535 (Fla.1st DCA 1975). In all of the cases finding that an erroneous instruction produced a conviction for a crime not charged, only one (Hicks) says that the defendant objected to the charge; the rest are silent on that point.

The district court cases do not explain why convictions based on erroneous instructions are fundamental error. Our own investigation has yielded the following information.

As stated by the United States Supreme Court:

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.

Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948). The Court went on to comment that:

It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.

Id. As support for this statement, the Court cited De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937), wherein the Court had previously stated that “[c]onviction upon a charge not made would be a sheer denial of due process.” Id. at 362, 57 S.Ct. at 259.

This Court has reached the same conclusion.

The Constitution guarantees to every accused person . . . the right to know “the nature and cause of the accusation against him,” and it necessarily follows that the accused cannot be indicted for one offense and convicted and sentenced for another, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment.

Penny v. State, 140 Fla. 155, 162, 191 So. 190, 193 (1939). Accord, Perkins v. Mayo, 92 So.2d 641 (Fla.1957). This Court has indicated that for error to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process. Castor v. State, 365 So.2d 701, 704 n.7 (Fla.1978). See State v. Smith, 240 So.2d 807 (Fla.1970). Thus, we are really dealing with denial of due process.

The main benefit to a defendant of having a procedural defect declared fundamental error is that such error can be considered on appeal even though not objected to in the lower court. The doctrine of fundamental error thus is an exception to the contemporaneous objection rule as set out in Florida Rule of Criminal Procedure 3.390(d). This Court has long applied rule 3.390(d) and its statutory predecessors to bar the appeal of instructions not objected to at trial. See Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947); Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942). Most recently, this Court applied the contemporaneous objection rule to the failure to object to instructions in Castor v. State. In Castor we commented that the

requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of the judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.

365 So.2d at 703. See Clark v. State, 363 So.2d 331 (Fla.1978); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

This Court has previously refused to adopt an absolute rule that would allow a defendant to object for the first time on appeal. Clark. We refuse to do so in this instance as well. Fundamental error has been defined as “error which goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). The appellate courts, however, have been cautioned to exercise their discretion concerning fundamental error “very guardedly.” Id. We agree with Judge Hubbart’s observation that the doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application. Porter v. State, 356 So.2d 1268 (Fla.3d DCA) (Hubbart, J., dissenting), remanded, 364 So.2d 892 (Fla.1978), rev’d. on remand, 367 So.2d 705 (Fla.3d DCA 1979).

An accused, as is required of the state, must comply with established rules of procedure designed to assure both fairness and reliability in the ascertainment of guilt and innocence. The failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial. “It is well-established law that where the trial judge has extended counsel an opportunity tó cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.” Sullivan v. State, 303 So.2d 632, 635 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

Contrary to the cases that Ray relies on, the district courts have also found that instructing on a crime not charged does not necessarily constitute reversible error. Achin v. State, 387 So.2d 375 (Fla.4th DCA 1980); Wilson v. State, 383 So.2d 670 (Fla.5th DCA 1980); Carter v. State, 380 So.2d 541 (Fla.5th DCA 1980); Odom v. State, 375 So.2d 1079 (Fla.1st DCA 1979), cert. denied, 386 So.2d 640 (Fla.1980); Smith v. State, 375 So.2d 864 (Fla.3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980); Ray v. State, 374 So.2d 1002 (Fla.2d DCA 1979); Lumia v. State, 372 So.2d 525 (Fla.4th DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980); Thompson v. State, 368 So.2d 670 (Fla.3d DCA 1979); Jones v. State, 358 So.2d 37 (Fla.4th DCA), cert. denied, 364 So.2d 887 (Fla.1978); McPhee v. State, 254 So.2d 406 (Fla.1st DCA 1971). These cases have supported convictions based on crimes not specifically charged because of invited error, waiver, and/or es-toppel.

In most of these cases, the failure to object has been coupled with affirmative acts either seeking or acquiescing in the erroneous instructions. Ray contends that these cases do not apply to the instant situation because the record is totally silent as to whether Ray’s counsel requested or depended on the instruction at issue. He therefore claims that, even if fundamental error can be waived, no waiver has been shown here.

We agree that no waiver has been shown in the instant case. The two crimes instructed on by the trial court are both second-degree felonies, and lewd assault is not a permissible lesser included offense of sexual battery. On these facts, silence alone is not sufficient to demonstrate a waiver.

If Ray’s counsel had requested the improper instruction, or had affirmatively relied on that charge as evidenced by argument to the jury or other affirmative action, we could uphold a finding of waiver absent an objection because constitutional error might not be fundamental error and because even constitutional rights can be waived if not timely presented. At trial, objecting to erroneous instructions is the responsibility of a defendant’s attorney, and the attorney’s failure to object to such instructions can properly constitute a waiver of any defects. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C. J., concurring). If the instant complained-of instruction had been a permissible lesser included offense, i. e., a crime of lesser degree or one subject to a lesser penalty or had been includable under category 3 or 4 of Brown, the district court would have been correct in affirming the conviction.

We hold, therefore, that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction. These conditions have not been met in the instant case, and the district court opinion is quashed.

It is so ordered.

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

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

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree with that part of the majority opinion which holds that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object, if the improperly charged offense is lesser in degree or penalty than the main offense. But I disagree with the majority’s limitation of this rule to situations where the improperly charged offense is lesser in degree and penalty than the main offense.

This Court has made it clear by rule and by decision that in order to preserve for appeal the issue of the giving of or failure to give an instruction, the defendant must make a timely objection. Florida Rule of Criminal Procedure 3.390(d); Castor v. State, 365 So.2d 701 (Fla.1978). The obligation of a defendant to object is not obviated by the fact that the offense improperly charged upon is equivalent in penalty to the offense for which he is charged. The reconstructed record before us demonstrates that Ray did not object to the presently contested instruction, and the district court, therefore, properly determined that Ray is es-topped from raising this point for the first time on appeal. By his silence, he has effectually consented to the amendment of the charges against him to conform to the evidence and to include the additional charge of lewd and lascivious conduct. He has not been denied due process because, by his failure to object, he has waived the procedural right of prior notice of the specific charge. The conviction in this case came to the appellate court with a presumption of correctness. The burden was on the defendant to show that he timely objected to what would have been reversible error on the part of the trial court. The defendant has failed to meet this burden, and his conviction should be affirmed.

BOYD, J., concurs.

      . § 794.011(5) provides that:
      A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . § 800.04 reads as follows:
      Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without the intent to commit involuntary sexual battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083 or s. 775.084.

      .Care should be taken to preserve the record of all action taken at charge conferences. This includes the designation of requested charges, all objections to the giving or denial of charges, and the identity of the complaining party.

      . Fla.R.Crim.P. 3.390(d) provides, in part, that: No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection.

      . Clark v. State, 363 So.2d 331 (Fla.1978).

      . Id.; Rubin v. State, 368 So.2d 69 (Fla.3d DCA 1979).

      . In re Standard Jury Instructions (Criminal Cases), No. 58,799 (Fla. April 16, 1981), contains, as an appendix, a schedule of lesser included offenses. This schedule is presumptively correct and complete, and the Court expects that using the schedule will lessen the confusion surrounding lesser included offenses.

      .Failing to object to improper instructions is thus analogous to failing to object to faulty informations; both failures will result in waiver. See Tracey v. State, 130 So.2d 605 (Fla.1961); Haselden v. State, 386 So.2d 624 (Fla.4th DCA 1980).


author: BOYD, Justice. ENGLAND, Justice,

text:
    UNITED TELEPHONE COMPANY OF FLORIDA, et al., Petitioners, v. Robert T. MANN, et al., Respondents.
    No. 58647.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 15, 1981.

      Jerry M. Johns, Gen. Counsel, Altamonte Springs, for United Tel. Co. of Florida.
    Earl B. Hadlow and John T. Sefton of Mahoney, Hadlow & Adams, Jacksonville, William B. Barfield, Miami, and Robert W. Sterrett, Jr. and Fred A. Walters, Atlanta, Ga., for Southern Bell Tel. and Tel. Co.
    Jack Shreve, Public Counsel, Michael MeK. Wilson, Deputy Public Counsel, and Benjamin H. Dickens, Associate Public Counsel, Tallahassee, for the Citizens of the State of Florida, cross-petitioners.
    Arthur C. Canaday, Gen. Counsel, William S. Bilenky, Deputy Gen. Counsel and Virginia Daire Reber, Associate Gen. Counsel, Tallahassee, for the Florida Public Service Commission, respondents.
   BOYD, Justice.

This cause is before us to review a Public Service Commission (commission) order directing United Telephone Company of Florida (United) to refund excess revenues collected during the pendency of a full scale rate making proceeding. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

This case began when the public counsel petitioned for a show cause order and immediate rate making proceedings on September 29, 1978. Public counsel asserted that for the year preceding the filing of the petition United had been earning revenues in excess of the ceiling of its last authorized rate of return range of 9.0%-9.2%. He requested the commission order United to show cause why its rates should not be reduced and to schedule interim rate making hearings. Before responding to this petition, the commission in Order No. 8513 initiated a full scale rate making proceeding under section 364.14, Florida Statutes (1977), establishing June 30,1978 as the end of the test year, and in Order Nos. 8742 and 8773 authorized other utilities to intervene, including Southern Bell Telephone and Telegraph Company (Southern Bell). On March 22, 1979, the commission issued Order No. 8782 granting the public counsel’s petition and ordering that an interim rate making proceeding be held on April 11. In this order the commission explained that if it found after the interim hearing that United’s rates were excessive, the commission had the authority to either perscribe new rates which would effectuate the decrease or maintain the present rates with the excessive revenues being subject to refund. For purposes of this case we will not distinguish between these two methods of effectuating an interim rate decrease. Cf. Askew v. Bevis, 283 So.2d 337 (Fla.1973) (amount of rate relief granted by the Public Service Commission was placed under bond on condition that refunds be paid to customers if utility failed to improve its service).

After the interim proceeding, the commission rendered Order No. 8855 on May 1, 1979, finding that approximately 3.3 million dollars of United’s annual gross revenues were in excess of the ceiling of its last authorized rate of return and were therefore unjust and unreasonable. The commission ordered United to set aside $275,000 per month beginning May 1, which amount would be subject to refund upon the completion of the comprehensive rate making proceeding.

The comprehensive rate making proceeding was concluded on January 14, 1980, when the commission rendered Order No. 9208, the subject of our review in this case. The commission found that United’s rate of return should be 9.62% encompassed by a range of 9.16% to 10.07% and that the adjusted rate base for the test year ending June 30, 1978, was $154,158,358. Despite the increase in United’s allowable rate of return, the commission found that United was still earning an excess of $2,803,093 on an annual basis. Therefore the commission ordered United to reduce its rates by that amount and refund the appropriate portion of excess revenues collected since May 1, 1979.

United filed a petition for writ of certio-rari, in which Southern Bell joined. The two companies claimed that the commission lacks the statutory authority to hold interim rate decrease proceedings and that if the commission does have that authority it cannot order a refund of amounts of revenues collected that are not in excess of the newly authorized rate of return ceiling. The public counsel filed a cross brief claiming that the commission does have the authority to reduce rates on an interim basis but that the amount to be refunded should be based on the previously, not the newly, authorized rate of return ceiling. In addition public counsel raised a new issue concerning the commission’s calculation of a working capital allowance. Naturally, in its answer briefs the commission defended the actions it had taken.

We will first consider the question of whether the commission has the authority to order interim rate decreases. Petitioners United and Southern Bell claim that the section which the commission proceeded under, section 364.14, cannot be interpreted as giving the commission the implied authority to reduce rates on an interim basis. They point out that the statute specifically provides that upon finding that the rates are unjust or unreasonable, the commission must determine just and reasonable rates “to be thereafter observed and in force 364.14, Fla.Stat. (1977). They argue that calculating new rates after a full rate making proceeding and applying them to the interim period constitutes unlawful retroactive rate making. See City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968).

The commission and public counsel respond by arguing that the procedure used in this case is the reverse of the “make whole” procedure authorized by this Court in Southern Bell Telephone and Telegraph Co. v. Bevis, 279 So.2d 285 (Fla.1973). In that case we stated that if a company showed that its rate of return was below the minimum previously authorized by the commission, it made a prima facie case for approval of an interim rate increase. We also stated that if the commission was in doubt as to the propriety of the rate of return, it could grant the interim increase contingent upon the outcome of the full hearing and require the company to refund any part of the interim increase which was later found to be improper. We specifically stated that our decision in City of Miami was never meant to preclude the commission from making interim increases contingent on the outcome of a full hearing. By the same token that decision does not preclude the commission from making interim decreases contingent upon the outcome of a full hearing. Since there is no logical reason for distinguishing between rate increase proceedings and rate decrease proceedings, we find that the commission is authorized to order interim rate decreases upon finding that a company is earning revenues in excess of its maximum allowable rate of return.

The question we are faced with now is how much money collected during the interim period should be refunded. United argues that it should have to refund only the amount of revenues collected that are in excess of 10.07%, the ceiling of the newly authorized rate of return range. Public counsel argues that the new rate of return should be applied prospectively and that the refund should be based upon 9.20%, the ceiling of the previous rate of return range. As mentioned earlier the commission took to the middle ground and ordered the refund of any collected revenues that were in excess of the newly authorized rate of return of 9.62%. To resolve this dispute we need to analyze the purpose of and method of calculating a public utility’s rate of return.

A regulated public utility is entitled to an opportunity to earn a fair or reasonable rate of return on its invested capital. Gulf Power Co. v. Bevis, 289 So.2d 401 (Fla.1974). A fair rate of return is for the benefit of the utility’s investors. Gulf Power Co. v. Bevis, 296 So.2d 482 (Fla.1974). This amount “should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain credit and to attract capital.” Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 603, 64 S.Ct. 281, 288, 88 L.Ed. 333 (1944); see also Bluefield Waterworks & Improvement Co. v. Public Service Commission, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176 (1923). Therefore the purpose of establishing a fair or reasonable rate of return is to “fairly compensate investors for the risks they have assumed. . . . ” Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312 (1968).

The method of calculating a rate of return is primarily based upon calculating the cost of investment capital. There are three main sources of investment capital: debt, preferred stock and common stock. The cost of the first two sources can be mathematically derived whereas the cost of common stock is a matter of economic judgment. Each of these costs expressed in terms of percentage is then multiplied by that particular source’s capitalization ratio to achieve a weighted average. The sum of these weighted averages is the rate of return. After this figure is reached, the commission can make further adjustments to account for such things as accretion, attrition, inflation and management efficiency.

As an example we give the calculations used by the commission in deriving the 9.62% rate of return in this case:

The commission found there was insufficient evidence in the record to support any further adjustments. There are no calculations for preferred stock since all of it had been redeemed by June 30, 1978.

The main dispute in this case is the assessment of the cost of United’s common stock. United’s witness testified that the cost of common equity based upon the test year was 14.25%, whereas the public counsel’s witness testified that the cost was between 11% and 12%. The commission felt that United was overstating the cost of common equity and that public counsel was understating it and therefore compromised the two positions by finding that the cost of common equity based on the test year was 13.25%. Although United presented supplemental testimony, the commission did not rely upon the additional evidence, but instead based its decision on data that was gathered and available before the interim hearing was held.

The commission properly refrained from considering the extensive testimony pertaining to the appropriate rate of return at the interim hearing. To have done otherwise would have been tantamount to holding a comprehensive rate making proceeding. The purpose of the interim hearing is to fix temporary rates based upon known and easily measurable changes which nave caused the utility’s rates to be unjust and unreasonable. Since changes in the cost of common equity are not easily calculable, they are not proper subjects for interim hearings.

That does not mean that the amount to be refunded must necessarily be calculated by the previously authorized rate of return. To hold so would defeat the purpose of allowing the utility to collect excess revenues subject to refund. The commission is unable to determine at the time of the interim hearing the amount of the utility’s revenues, if any, which are excessive. Such a determination can only be made after a comprehensive rate making proceeding has been held. A part of that determination is the rate of return which the utility should be authorized to earn during the pendency of the full rate making proceeding. Therefore the commission may base its refund order upon the newly established rate of return so long as the new rate is based upon data that existed before the commission issued its interim order.

Thus the commission is not required to order United to refund all of its revenues collected during the pendency of the full rate making hearing that were in excess of its previously established rate of return ceiling of 9.2%. Nor is the commission required to allow United to keep all the revenues collected that were not in excess of the newly authorized rate of return ceiling of 10.07%. The figure of 10.07% merely establishes the top end of the rate of return range which was calculated to be 9.16% to 10.07%. By establishing a rate of return range in addition to establishing a specific rate of return, the commission is acknowledging the economic reality that a company’s rate of return will fluctuate in the course of a normal business cycle. Earnings in excess of the authorized rate of return could possibly be offset by lower earnings in later years. Thus the purpose of having a range is to give the commission some flexibility in deciding whether a public utility’s rates should be changed. The existence of the range does not limit the commission’s authority to adjust rates even though a public utility’s rate of return may fall within the authorized range. For example, if a public utility is consistently earning a rate of return at or near the ceiling of its authorized rate of return range, the commission may find that its rates are unjust and unreasonable even though the presumption lies with the utility that the rates are reasonable and just. The commission’s discretion in this matter is not annulled by the establishing of a rate of return range.

We therefore hold that the commission has the discretion to determine the amount of revenues collected during the interim period which are excessive so long as that amount does not exceed the amount ordered subject to refund at the interim hearing. In this case we do not find that the commission abused its discretion. By pegging the amount of refund to the newly authorized rate of return, the commission was taking a neutral stance. If there had been uncontroverted evidence that United’s future earnings would be less than its authorized rate of return, then United would have been justified in earning more than its rate of return to offset that amount. Since this is not the case, the commission properly ordered a refund of all revenues collected that were in excess of the newly authorized rate of return.

We now come to public counsel’s claim that the commission departed from the essential requirements of law in the method used in calculating United’s working capital. At the hearing public counsel proposed a different method of calculating working capital. The commission found fault with both methods so it ordered a generic investigation into the matter. In the meantime it ordered that the traditional method proposed by United be utilized and that the amount of associated revenues be collected subject to refund. Thus this issue has not been adequately presented to us and we therefore refrain from commenting upon the matter.

We affirm the Public Service Commission’s order in all its aspects.

It is so ordered.

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

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

ENGLAND, Justice,

dissenting.

In the face of a clear statutory directive proscribing retroactive rate making and uniform precedents both in and out of Florida construing precisely that legislative limitation against the commission’s action in this case, I must dissent from my colleagues’ conclusion that the Public Service Commission had inherent authority to order a refund of any amounts collected by United Telephone Company between May 1, 1979, and January 23,1980. The legislature recently chose to confer upon the commission the very authority it now claims to possess, but because this statute has only prospective effect, it does not govern this litigation. In the absence of an applicable statute permitting the action taken here, I do not believe that we can substitute good motives or ostensibly equitable principles for legislative authorization.

I recognize that the Court approved inherent authority to make interim rate increases in Southern Bell Telephone and Telegraph Co. v. Bevis, 279 So.2d 285 (Fla.1973), before specific legislation conferred express authority. I also recognize that, conceptually, the authority for rate decreases and rate increases must flow from the same source, whether inherent or express. Nonetheless, I would not duck the problems of inherent authority simply by conceding that precedent from this Court provides the rationale to continue the “flip side” of an earlier practice.

The evolution of more sophisticated rate making procedures in Florida is manifest in our laws. The legislature has taken giant strides in the regulatory arena in the last seven years. An advocate for the public has been created. File and suspend rate making procedures now exist for the benefit of utility companies. Public Service Commissioners have been removed from elective politics. In short, the regulatory climate in Florida has undergone significant reform.

This Court’s Southern Bell decision, I submit, is a relic of a bygone era and should not be resurrected in this enlightened age. See Citizens of Florida v. Mayo, 333 So.2d 1, 6 n.12 (Fla.1976).

SUNDBERG, C. J., concurs.

      . This range was established by Public Service Commission Order No. 7109 rendered February 18, 1976.

      . The Public Service Commission filed a motion to strike public counsel’s brief as being untimely filed under Fla.R.App.P. 9.110(f). The commission’s motion is premised upon the belief that public counsel is not a respondent to this proceeding. Since this premise is erroneous in light of Fla.R.App.P. 9.020(f), we deny the motion.

      . United filed a motion to strike portions of the public counsel’s cross reply brief which were not limited to this issue. The contents of a cross reply are limited to “argument in response and rebuttal to argument presented in the answer brief.” Fla.R.App.P. 9.210(e). This language indicates that the contents of a cross reply brief should be limited to issues initially raised by the cross appellee. We therefore grant the motion.

      . 364.14 Readjustment of rates, charges, tolls, etc.; hearing; order compelling facilities to be installed, etc.—
      (1) Whenever the commissioners shall find, after a hearing had upon their own motion or upon complaint, that the rates, charges, tolls, or rentals demanded, exacted, charged, or collected by any telegraph company or telephone company for the transmission of messages by telegraph or telephone, or for the rental or use of any telegraph line, telephone line, or any telegraph instrument, wire, appliance, apparatus, or device or any telephone receiver, transmitter, instrument, wire, cable, apparatus, conduit, machine, appliance, or device, or any telephone extension or extension system, or that the rules, regulations, or practices of any telegraph company or telephone company affecting such rates, charges, tolls, rentals, or service are unjust, unreasonable, unjustly discriminatory, or unduly preferential, or in anywise in violation of law, or that such rates, charges, tolls, or rentals are insufficient to yield reasonable compensation for the service rendered, the commissioners shall determine the just and reasonable rates, charges, tolls, or rentals to be thereafter observed and in force, and fix the same by order as hereinafter provided.
      (2) Whenever the commissioners shall find after such hearing that the rules, regulations, or practices of any telegraph company or telephone company are unjust or unreasonable, or that the equipment, facilities, or service of any telegraph company or telephone company are inadequate, inefficient, improper, or insufficient, the commissioners shall determine the just, reasonable, proper, adequate, and efficient rules, regulations, practices, equipment, facilities, and service to be thereafter installed, observed and used and fix the same by order or rule as hereinafter provided.

      . One of the major problems the commission faced at the interim hearing was the introduction of relevant evidence within a minimum amount of time. Much of the evidence was repetitious in that it had been presented at a previous informal proceeding which had apparently been attended by public counsel. Unfortunately the commission operated under the presumption that it could not consider that evidence nor base an interim order on it since it was obtained through an informal proceeding held pursuant to section 120.57(2), Florida Statutes (1978 Supp.). The commission erroneously concluded that it could only issue an interim order after holding a formal proceeding under section 120.57(1). A formal hearing does not need to be held if there is no disputed issue of material fact or if waived by all the parties. If during an informal proceeding a dispute arises as to a material fact and one of the parties insists upon a formal proceeding, there is nothing to prevent the commission from making all of the evidence that had been presented at the informal proceeding part of the record of the formal proceeding.

      . Section 364.14(1), Florida Statutes (1979), provides that “the commissioners shall determine the just and reasonable rates ... to be thereafter observed and in force . . . . ” (emphasis added).

      . City of Miami v. Florida Pub. Serv. Comm’n, 208 So.2d 249, 259-60 (Fla.1968); Public Utils. Comm’n v. United Fuel Gas Co., 317 U.S. 456, 63 S.Ct. 369, 87 L.Ed. 396 (1943); Pacific Tel. & Tel. Co. v. Public Utils. Comm’n, 62 Cal.2d 634, 401 P.2d 353, 44 Cal.Rptr. 1 (1965); Michigan Bell Tel. Co. v. Michigan Pub. Serv. Comm’n, 315 Mich. 533, 24 N.W.2d 200 (1946).

      .Section 366.071(2)(b), Florida Statutes (1980), gives the commission the power to order collection and refund of revenues in a proceeding for interim decrease in rates. It became law in 1980. Ch. 80-35, § 8, Laws of Fla.

      . Regarding the vitality of Southern Bell after legislative action, see Maule Indus., Inc. v. Mayo, 342 So.2d 63 (Fla.1976).

      . § 350.061, Fla.Stat. (1979).

      . § 366.06(4), Fla.Stat. (1979).

      . § 350.031, Fla.Stat. (1979).


author: PER CURIAM. ENGLAND, Justice,

text:
    Helen Mackey LUDLOW, etc., Petitioner, v. Richard P. BRINKER, Clerk of the Circuit Court, etc., Respondent.
    No. 58807.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 9, 1981.

      Elizabeth S. Baker and Stephen Maher of Legal Services of Greater Miami, Inc., Miami, for petitioner.
    Gus Efthimiou, Jr., Miami, for respondent.
   PER CURIAM.

In construing a provision of Florida’s in forma pauperis statute, the Third District Court of Appeal has held that an indigent may not utilize section 57.081(1), Florida Statutes (1977), to record without charge a certified copy of a judgment for costs which she has obtained after a favorable lawsuit. Brinker v. Ludlow, 379 So.2d 999 (Fla.3d DCA 1980). As the district court’s decision expressly affects all court clerks, a class of constitutional officers, we have accepted this case for discretionary review. Art. V, § 3(b)(3), Fla.Const. The issue presented for our consideration is whether section 57.-081 provides for the recordation, without charge, of a certified copy of an indigent’s post-judgment order taxing costs (a “cost judgment”).

Section 57.081(1) reads in pertinent part: Insolvent and poverty-stricken persons having actionable claims or demands shall receive the services of the courts, sheriffs, and clerks of the county in which they reside without charge.

Helen Ludlow proceeded under this statute in her lawsuit against a corporation and an individual. After obtaining a favorable judgment, she obtained an order taxing costs against the defendants, a certified copy of which she attempted to have the clerk of the circuit court record without charge. The clerk refused, stating that section 57.081 did not apply to the recordation of documents.

In due course the district court ruled with the clerk, finding the phrase “actionable claims or demands” to be dispositive of the controversy. The court determined that a claim or demand within the context of this statute is merely the traditional “cause of action” which, upon the successful conclusion of a lawsuit, merges into a final judgment. From this the court reasoned that an indigent has no “actionable claim or demand” after judgment and that section 57.081 provides an indigent only with “the essential services from the courts, sheriffs and clerks in the prosecution of the steps in the cause of action as opposed to steps beyond the cause of action, i. e., after entry of judgment.”

The legislative history and judicial gloss surrounding section 57.081 provide little guidance on the meaning of the pivotal phrase “actionable claims or demands.” Without parroting the district court’s copious research, we can nonetheless make several general observations regarding the development of this provision.

The crucial phrase “actionable claims or demands” has been in the statute since its enactment in 1937. See Ch. 17883, Laws of Fla. (1937). Besides the district court’s opinion below, only one case since 1937 has addressed, even peripherally, its meaning. In Lee v. City of Winter Haven, 386 So.2d 268 (Fla.2d DCA 1980), the court held that section 57.081 was not applicable to appellate cases, though noting on the basis of several prior cases that “whether or not ‘actionable claims or demands’ includes appeals is arguable.” 386 So.2d at 269.

The Third District’s interpretation of “actionable claims or demands” — defining the phrase to mean a “cause of action” — mirrors the general trend of decisions interpreting section 57.081 in other contexts. Florida courts have consistently adopted narrow constructions of the statute. See, e. g., McGriff v. McGriff, 392 So.2d 914 (Fla.3d DCA 1980) (indigent not entitled to proceed on appeal without payment of filing fee); Hillman v. Federal National Mortgage Association, 375 So.2d 336 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980) (same); Harrell v. Department of Health and Rehabilitative Services, 361 So.2d 715 (Fla. 4th DCA 1978) (indigent not entitled to free transcript on appeal); Bower v. Connecticut General Life Insurance Co., 347 So.2d 439 (Fla.3d DCA 1977) (same). The Third District’s decision to exclude post-judgment services from coverage under section 57.081 is in accord with the general trend or Florida case law.

A judgment for cost is valid whether or not recorded. The only reason for recording such judgment is to secure a lien on real property that is superior to later judgments. Recording a judgment does not affect access to the courts. We agree with the district court’s holding and approve the instant decision.

It is so ordered.

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

ENGLAND, J., dissents with an opinion in which SUNDBERG, C. J., and BOYD, J., concur.

ENGLAND, Justice,

dissenting.

I respectfully dissent. The Third District’s decision and our affirmance today may line up nicely with the general trend of Florida case law, but the result of that alignment flies squarely in the face of our responsibility “to promote the full availability of legal services to the poor.” The Florida Bar v. Furman, 376 So.2d 378, 382 (Fla.1979), appeal dismissed, 444 U.S. 1061, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). The fact that Florida’s district courts have over the years consistently parsed the legislature’s grant of free access to the civil justice system is no reason to continue that trend in the future.

As compared with restrictive court interpretations of Florida’s in forma pauperis statute, I note that other states have taken a more generous approach to providing civil litigation services to indigents. The scope and coverage of relevant statutes vary considerably from jurisdiction to jurisdiction, of course. Some are quite broad, such as Louisiana’s provision for “[a]U services required by law of a sheriff, clerk of court, court reporter, notary, or other public officer in, or in connection with, the judicial proceeding....” La.Code Civ.Pro.Ann. art. 5185 (West Supp.1980). Kentucky furnishes indigent litigants with “all needful services and process . .. . ” Ky.Rev.Stat. Ann. § 453.190(1) (Cum.Supp.1980). While many of these provisions include various limitations and restrictions, my research fails to reveal any statute, or any decision interpreting them, in which a distinction was drawn between pre-judgment and post-judgment litigation services at the trial level.

The Court’s decision to exclude post-judgment services from coverage under section 57.081 attributes to the Florida Legislature a relatively novel statutory scheme in comparison with our sister states. With no clear guidance regarding the meaning of “actionable claims or demands” in section 57.081, I believe that the district court’s construction of the troublesome phrase, now adopted here, was strained and unduly technical. To define the phrase in terms of a “cause of action,” based on various dictionary and case law definitions of the relevant words, is one possible view. The term could refer as well, however, to a basic assertion of legal rights and obligations in the courts. I prefer to believe the legislature would not have utilized such a broad, comprehensive and ambiguous term as delimiting. Section 57.081 provides indigents with “the services” of the clerks, one of which indisputably is the clerk’s recordation of official documents. See § 28.222, Fla.Stat. (1977).

The general purpose of legislation such as section 57.081 is to grant indigents reasonably useful access to the civil justice system. The statute is remedial in nature, and it should be liberally construed to advance its purpose. The construction of section 57.081 most consonant with its purpose would provide qualified indigents with the essential services of the courts, sheriffs, and clerks, without charge, both before and after rendition of judgment. To draw an artificial distinction between pre-judgment and post-judgment services of the clerk is to create the anomaly of requiring an indigent litigant to pay recording fees when he has not yet collected the judgment which, if collected, would enable him to pay the fees.

I would hold that an indigent’s “actionable claim or demand” does not dissipate after a judgment is rendered, despite technical doctrines of “merger” used in other contexts. Helen Ludlow should be allowed to record a certified copy of her cost judgment free of the $4.00 charge imposed by section 28.24(16), Florida Statutes (1979).

SUNDBERG, C. J., and BOYD, J., concur.

      . Ludlow attempted to record the order so that it could become a lien against the Dade County real property of the judgment debtor. See § 55.10, Fla.Stat. (1977).

      . The district court’s opinion below contains a fuller treatment of the procedural history of this case. See Brinker v. Ludlow, 379 So.2d 999 (Fla.3d DCA 1980).

      . Id. at 1001.

      . Id. at 1002.

      . This phrase was recently deleted. See Ch. 80-348, § 1, Laws of Fla. One court has opined that the purpose of the deletion was to broaden the scope of the provision. See Kleinschmidt v. Estate of Kleinschmidt, 392 So.2d 66, 67 (Fla.3d DCA 1981), where the court said:
      We perceive that one of the purposes of the recent amendment was to authorize the right to appellate review by an indigent person. The term “proceeding,” used in the amended statute, is more encompassing than the term “actionable claim or demand” found in the former statute.

        See also Fields v. Zinman, 394 So.2d 1133 (Fla. 4th DCA 1981); Nichols v. Florida Parole and Probation Comm'n, 393 So.2d 13 (Fla. 1st DCA 1980) (en banc); Chappell v. Florida Dep’t of Health and Rehabilitative Servs., 391 So.2d 358 (Fla. 5th DCA 1980); 1980 Op. Att’y Gen. Fla. 080-86 (Nov. 4, 1980), each construing the amended statute to encompass civil appeals. Whatever the value of these constructions of the revised statute, our concern is the statute before its amendment in 1980, and we make no judgment on the meaning of the new provision. We decline Ludlow’s invitation to apply the new statute retroactively to afford her the relief she requests.

      . The Lee court examined Harrell v. Department of Health and Rehabilitative Servs., 361 So.2d 715 (Fla. 4th DCA 1978), and Hillman v. Federal Nat’l Mortgage Ass’n, 375 So.2d 336 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980), neither of which directly discussed the meaning of the contested phrase.

      . For a good overview and analysis of these various state provisions, see Note, Indigent Access to Civil Courts: The Tiger Is at the Gates, 26 Vand.L.Rev. 25 (1973).

      . E. g., Ark.Stat.Ann. § 27-402 (1979) (plaintiff must not be worth $10 over and above necessary wearing apparel); Tenn.Code Ann. § 20-12-127 (1980) (statute not available for false imprisonment, malicious prosecution, slander and divorce actions).

      . The federal in forma pauperis statute, 28 U.S.C. § 1915 (1966), which is expressly applicable to appeals, has been held to cover the fee for filing a post-judgment notice of appeal. See Williford v. California, 329 F.2d 47 (9th Cir. 1964).

      . Brinker v. Ludlow, 379 So.2d 999, 1001 (Fla.3d DCA 1980).

      . Black’s Law Dictionary 313 (4th rev. ed. 1968).

      . See Fields v. Zinman, 394 So.2d 1133 (Fla.4th DCA 1981) (Hurley, J., concurring). The need for and concern about effective access to justice for the poor transcends Florida’s borders. See generally Access to Justice (M. Cappelletti gen. ed. 1978) (four vols.), which surveys access to justice in the United States and other parts of the world.

      . See Stern v. Miller, 348 So.2d 303 (Fla.1977).