author: HARRIS, Presiding Judge.

text:
    Thomas Alan ROGERS v. STATE.
    8 Div. 557.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.

      Don T. Terrell, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Charles M. Allen, II, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by a Madison County Grand Jury on a “felony-murder” charge under § 13A-6-21(a)(3), Code of Alabama 1975. Appellant was subsequently convicted for the offense and the trial court set a prison term of 45 years.

The state’s first witness was the victim’s mother. Her son was 31 years old at the time of his death. The witness gave her son’s address and testified that the last time she saw her son alive was on October 27, 1980. The next time she saw her son was on November 11, 1980, after he had been killed.

The state called Doyle Kimbrell to the stand. The witness knew appellant and was at the victim’s home the night of the victim’s death. Kimbrell testified that, on the night of November 9, 1980, his sister, Melissa Long, and Marcia Rogers, appellant’s ex-wife, woke him up. The three ran into a bathroom where they heard a door being kicked in. Kimbrell testified that he also heard a gun trigger click. While in the bathroom, the witness heard appellant ask if anyone was in the bathroom. The three then walked out of the bathroom. In the living room were Bud Barr and Eddie Lang, two accomplices of the appellant. The three were searching the house for the victim when Barr yelled that he had found the victim in a back bedroom. Appellant and Barr kicked in the bedroom door. The witness heard appellant say, “You’ll whip my -, will you.” The witness then heard a gunshot.

Eddie Lang ran out of the house followed by Barr and appellant. The witness noted that guns were taken from a gun rack in the house. After the three men left, the witness walked to the bedroom and found the victim’s body.

On cross-examination, Kimbrell testified that, although Barr was armed, appellant only had a stick when he went in to the bedroom and when he left.

The state’s next witness was James Parker, a detective for the Huntsville Police Department. Parker arrived at the scene of the accident at approximately 11:45 p. m. He noted that the victim had a bullet hole in his back. The victim was dressed only in a pair of cut-off jeans. Parker also identified various photographs of the victim and photographs showing the use of force on the back door of the victim’s house and the victim’s bedroom door. A hearing was then held outside the presence of the jury to determine if appellant was adequately informed of his Miranda rights before he gave Parker a statement.

The state called Marcia Rogers, appellant’s ex-wife, to the stand. Ms. Rogers was at the victim’s house the night of the killing. Ms. Rogers essentially corroborated Doyle Kimbrell’s testimony. However, Ms. Rogers testified that all three men were armed: appellant with a pistol, Barr with a shotgun, and Lang with a rifle. She also identified the shotgun and rifle as belonging to the appellant.

On cross-examination, Ms. Rogers stated that some of her fellow employees at a local bar had threatened harm to her if she did not testify.

The state’s next witness was Melissa Lang, Eddie Lang’s ex-wife. She was dating the victim and also was at the victim’s home on November 9, 1980. She corroborated the previous testimony of the occurrences that night. Ms. Lang further testified that she worked in a local bar in Huntsville as did the victim and Ms. Rogers. She was at the bar when appellant and the victim had argued and fought in the club’s parking lot.

Grant Day, the victim’s roommate, was called to the stand. Day left his house on November 9, 1980, around 7:30 p. m. He remembered that the back door was locked. He had a shotgun and rifle in a gun rack in the house which were in the gun rack when he left. When he returned he noticed that the guns were gone. Day had not given appellant or his accomplices permission to enter his house or to take the guns on the night of the shooting.

Paul Kranca, a Huntsville police officer, was called to the scene at around 10:00 p. m. on November 9, 1980. He noticed that both the back and front doors were opened. He entered the house and found the victim in the back bedroom.

Paul Ballance, also on the police force, arrested the appellant in the early morning of November 10. He saw what appeared to be a patch of blood and human tissue on appellant’s coat. At Barr’s residence Bal-lance also found appellant’s guns stuffed under Barr’s mattress.

Dr. Joseph Embry was called to the stand. Dr. Embry worked for the State Department of Forensic Sciences in Birmingham. Dr. Embry performed an autopsy on the victim. He determined from the autopsy that whoever shot the victim was within three feet of the victim. At such a range, there is often a “blow back” of blood and tissue. The shot caused almost instantaneous death.

Greg Wilson, the victim’s next door neighbor, was at home the night of November 9. That night he heard someone yell, “He’s inside.” He then heard a loud noise from inside the house which sounded like a concrete block being thrown against a storm door. A few moments later three men ran from the house. The witness heard one of the three say, “Good shot.”

Deborah Tines, the manager of the local club where the victim worked, saw appellant arguing with the victim at her club on October 29, 1980. The victim was working as a doorman at her club. The victim and appellant went outside to the club’s parking lot where a fracas ensued. The victim won the fight and appellant was told to leave and not to return. The witness later saw appellant in the club parking lot. Appellant was waving what appeared to be a pistol. Appellant asked for the victim, stating that he “had something for him.”

Ron Adams, a Huntsville policeman, arrived on the scene at around 11:45 p. m. and noticed that the front door was open and that the back door was damaged and opened.

Brent Wheeler, a firearms criminalist, testified that wadding found on the victim’s body was from a .12 gauge shotgun.

Roger Morris, a criminalist and serology coordinator for the Department of Forensic Sciences, analyzed the substances on the jacket appellant was wearing the night of the shooting. Morris detected the presence of blood and human tissue on the jacket.

Detective Parker was recalled to the stand. Parker talked with the appellant at the police station during the early hours of November 10. He advised him of his Miranda rights and asked if he understood them. He then asked if, with those rights in mind, he wished to talk. After appellant hesitated a few minutes because of the presence of other officers, the two moved to a more isolated area where appellant gave Parker a statement. Appellant told Parker that he only wanted to black the victim’s eye and that he never intended to kill him. He claimed to have told the others that there was to be no shooting. Appellant further stated that he did not know that Barr was crazy and that Barr had shot the victim. He also stated that Barr was the one who kicked the back door in.

After the state rested, appellant presented his case.

Appellant called Eddie Lang to the stand. Lang denied that appellant or he ever returned to the club brandishing a pistol after appellant had fought with the victim. He also stated that the three of them were riding around together the night of the shooting and only went to the victim’s house to talk with the girls there. They never intended to kill anyone.

Appellant took the stand in his own behalf. He had known Lang since 1976 but he had only known Barr since the night of the homicide. The three of them went to the victim’s house to talk with Ms. Rogers and Ms. Lang. Appellant stated that they did not go to the house to commit a crime.

According to appellant, he and Lang knocked on the front door while Barr went around to the back. He and Lang walked through the unlocked door and they did not ask for the victim. He attempted to talk with his wife when she ran out of the house. After appellant had followed his wife out of the house, Barr yelled that he had found the victim. Appellant walked back to the victim’s bedroom where Barr had the victim at gunpoint. As appellant hit the victim with his fist, Barr shot past appellant hitting the victim. Appellant panicked and all three ran out of the house. Appellant stated that he never heard anyone say, “Good shot.”

Appellant denied on cross-examination that he had asked the victim to go outside and fight in a bar parking lot on October 29. He admitted that the victim beat him up, but he only returned to the bar to see why and he was not armed. Appellant also admitted that the shotgun Barr had belonged to appellant. He could not remember how Barr got his gun. Appellant stated that Barr on his own took the guns from the gun rack.

Appellant’s last witnesses were character witnesses who testified that appellant had a good reputation in the community for truth and veracity.

Appellant first contends that the state, in failing to comply with the trial court’s motion to produce, denied appellant a fair trial.

The relevant portion of the trial court’s order reads:

“... It is therefore ordered by the Court as follows:
“1. At least four (4) days prior to scheduled trial date the State will produce and allow defense counsel to inspect and copy any statement previously made by the defendant. Such statement previously made is (A) a written statement signed or otherwise adopted by the defendant or otherwise approved by the defendant; and (B) a stenographic, mechanical, or other recording or a transcription thereof, which is substantially verbatim recital of an oral statement by the defendant; and (C) any note, memorandum or other instrument in writing made by any person which was made at the same time or about the same time as any oral statement of the defendant was made. [Emphasis added.]
“3. At least four (4) days prior to scheduled trial date the State will produce and allow defense counsel to inspect and copy any report of chemical analysis of any material seized at the scene of the homicide or taken from the defendant’s person which is alleged to be evidence in the case or which the State intended to use at the trial of the case.”

Appellant argues that the state should have notified appellant of an unrecorded oral statement made by appellant to Detective Parker and the original notes used by Detective Parker to write up appellant’s statement. Appellant further argues the failure of the state to produce the statement of a prosecution witness made to police officers and test results from an analysis of appellant’s jacket also constituted reversible error.

The record shows that appellant told Detective Parker that the substance on the jacket was catsup, not blood, when in fact an analysis of the jacket proved otherwise. This information was elicited outside the presence of the jury and well before appellant testified. Also, the oral statement was never recorded. The trial court refused to allow Parker to testify about this statement, but the trial court did allow the state to cross-examine appellant on this point.

The record shows that, while cross-examining Marcia Rogers, appellant requested and received a copy of the witness’ statement to police. The record is unclear whether appellant received a copy of the analysis made on the jacket. However, this information was also produced before the toxicologist who made the test had testified and well before appellant presented his case.

Finally, the record indicates that Detective Parker did not have the original notes he used in writing up his formal report on what appellant had told him. After the trial court instructed Detective Parker to produce the notes, he testified that, after a diligent search, he could not find the notes. He further testified that he was not required to keep the original notes since he wrote up the statement only a few hours after he had talked to appellant. He also stated that his testimony substantially covered all information found in the notes.

Neither the lost notes nor Marcia Rogers’ statement was used by the witnesses to aid them in testifying.

The defense basically asserts that it may not have called appellant to the stand if it had known about appellant’s unrecorded oral statement concerning the bloodstains and if it had known of the test results showing the existence of blood on the jacket. This court recently addressed this issue in Jones v. State, 396 So.2d 140 (Ala.Cr.App. 1981), a case factually similar to the present case. In Jones, this court in discussing the failure of the state to produce certain photographs covered by the trial court’s motion to produce, states:

“... We note from the motion to produce that it is extraordinarily lengthy and tends to cover almost every conceivable item, but that it lacks specificity. We can see, as appellant contends, the possibility that from a standpoint of advisable tactics there would have been a change in the way counsel prepared and presented the defendant’s case if counsel had known before the trial started of the existence of the photographs, but we cannot say that the material evidence as to defendant’s guilt or innocence would have been any different from what it was. We can also see that if counsel for the state had intentionally withheld the photographs from inspection by defendant’s counsel in order to trap defendant’s counsel into an unwise tactical maneuver, defendant’s counsel would have just ground for complaint, but there is neither evidence nor a contention to that effect.
“Although suppression of evidence to which a defendant is entitled in a criminal case may constitute a violation of the Due Process clause of the Fifth Amendment as amplified in coverage by the Fourteenth Amendment to the Constitution of the United States irrespective of whether the suppression has been intentional, the evidence must have a material bearing upon the question of the guilt or innocence of the defendant, which would exclude evidence that tends merely to cause defendant to overextend himself tactically.
“ ‘Whether or not procedural rules authorizing such broad discovery might be desirable, the Constitution surely does not demand that much. While expressing the opinion that representatives of the State may not “suppress substantial material evidence,” former Chief Justice Traynor of the California Supreme Court has pointed out that “they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses.” In Re Imbler, 60 Cal.2d 554, 569 [35 Cal.Rptr. 293, 301], 387 P.2d 6, 14 (1963). And this Court recently noted that there is “no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Moore v. Illinois, 408 U.S. 786, 795, 95 S.Ct. 2562 [2568] 33 L.Ed.2d 706. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’ United States v. Agars, 427 U.S. 97, 100, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 353 (1976).
“The protection of the due process clause is primarily in the field of exculpatory rather than inculpatory evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963).
“It should be said also that the photographs were seen by defendant’s counsel before Dr. Roper testified and well before the defendant presented his evidence, including his own testimony.”

None of the contested evidence is exculpatory. The closest any evidence comes to being helpful to appellant was his statement to Detective Parker that Barr shot the victim. However, appellant was tried under the “felony-murder” doctrine rendering the fact of who actually pulled the trigger an unnecessary element in the burden of proof. In fact, appellant moved to exclude Detective Parker’s testimony concerning appellant’s statement. The state’s actions did not violate due process. See also Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied Ex parte Johnson, Ala., 335 So.2d 678, cert. denied 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629; Jones v. State, Ala.Cr.App., 356 So.2d 728, cert. denied Ex parte Jones, Ala., 356 So.2d 735 (1978); Brager v. State, Ala.Cr.App., 380 So.2d 401 (1980).

Moreover, the judge’s order did not include production of any unrecorded oral statement made by appellant. We preter-mit consideration of a motion seeking enlightenment as to oral statements not recorded or transcribed. Lewis v. State, Ala.Cr.App., 335 So.2d 426, cert. denied Ala., 335 So.2d 429 (1976). Likewise, the order did not contain any reference to the statements made by witnesses other than appellant, and the trial court so acknowledged. The trial court cited Mack v. State, Ala.Cr. App., 375 So.2d 476 (1979) which held that the defendant was not entitled to statements made by witnesses other than defendant.

Finally, there is no evidence in the record to indicate that the state was ever in possession of the original notes made by Detective Parker and thus in a position to suppress the evidence. The record shows that the prosecutor specifically asked Detective Parker if, prior to the trial, the prosecutor had discussed the original notes with him. He replied that he had not. Apparently the state also did not know of appellant’s unrecorded oral statement concerning the bloodstains until the trial. It cannot be said that appellant has been denied due process where there has been no showing that the evidence was suppressed by the state. Jones v. State, Ala.Cr.App., 356 So.2d 728, cert. denied Ala., 356 So.2d 735 (1978). Also, original notes are considered work product and as such a defendant has no right to their production. Butler v. State, 55 Ala.App. 421, 316 So.2d 348, cert. denied, 294 Ala. 754, 316 So.2d 355, cert. denied, 423 U.S. 996, 96 S.Ct. 424, 46 L.Ed.2d 370.

Appellant also contends that the trial court improperly denied appellant’s requested jury charge on manslaughter.

After deliberating for approximately 5V2 hours, the jury indicated that it wished further instructions on circumstantial evidence. Appellant then requested that the court also charge the jury on manslaughter as a lesser-included offense. The court gave appellant time to submit a written charge on manslaughter which read:

“A person commits the crime of manslaughter if:
“(1) He recklessly causes the death of another person or
“(2) He causes the death of another person under circumstances that would constitute murder, except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.”

This requested charge is a verbatim recital of § 13A-6-3, Code of Alabama 1975.

Although the charge requested by the defendant may be a correct statement of the law, the law is well settled in Alabama that it is not reversible error to refuse a charge which merely states an abstract principle of law without containing instructions as to the effect such doctrine has on the issues involved in the case. Craig v. State, Ala.Cr.App., 389 So.2d 177 (1980); Hudson v. State, Ala.Cr.App., 335 So.2d 208, cert. denied Ala., 335 So.2d 211 (1976).

Moreover, the trial court may within its discretion refuse a charge which is not applicable to the evidence presented at trial even though said charge is arguably a correct statement of law. Taylor v. State, Ala.Cr.App., 408 So.2d 551, cert. denied, Ala., 408 So.2d 555 (1982).

During the trial of this case neither party contended that the crime which was committed was manslaughter pursuant to § 13A-6-3. The state’s case was a felony (burglary) murder charge without any assertions of any alternative offense. In defense, appellant merely denied committing a burglary or shooting the victim, blaming the act on someone else. He made no assertion and produced no evidence that he either “recklessly” caused the death of the victim or that he killed the victim during a “sudden heat of passion” caused by a provocation recognized at law. The only question presented to the jury was whether, during the commission of a burglary, appellant or another participant “did cause the death of Larry Frank Russell.” Consequently, the trial court did not abuse its discretion in refusing appellant’s requested charge. Taylor, supra.

Appellant also argues that the trial court erred in not explaining to Marcia Rogers her spousal privilege under § 12-21-227, Code of Alabama 1975 which directs that a spouse may elect to refuse to testify against her husband. The record shows, however, that Ms. Rogers had divorced appellant before the trial. A defendant and his spouse must be married at the time the testimony is sought before the statute will apply. Ex parte Arnold v. State, Ala., 353 So.2d 524 (1977).

Appellant claims that he and the witness, although legally divorced, had been living together and holding each other out as husband and wife and were thus joined in a common-law marriage. The trial court allowed appellant to present evidence of a common-law marriage out of the hearing of the jury. Appellant testified that, since the crime, he and the witness had only lived together since the Saturday before the trial, although they had had sexual relations throughout this period. In subsequently refusing appellant’s request that the court instruct the witness of her privilege if she was still a spouse, the trial court implicitly found that no marriage existed at the time of the trial.

The determination of the competency of a witness is within the sound discretion of the trial court, and such discretion is of a well nigh irrevisable nature. Trammell v. State, 53 Ala.App. 246, 298 So.2d 666 (1974); Segrest v. State, 44 Ala.App. 673, 219 So.2d 890, cert. denied, 283 Ala. 718, 219 So.2d 893 (1969). We find no abuse of this discretion.

Appellant argues that the state failed to show the required “knowing and intelligent” waiver of his constitutional rights before he made a statement to Detective Parker as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant bases his argument on the fact that appellant never expressly stated that he wished to waive each specific part of the Miranda warning.

Appellant was given an extensive and thorough reading of his rights and he subsequently stated that he understood those rights. Appellant was further asked if he understood that he was not being promised anything for his statement, nor was he being threatened. Appellant responded that he understood this. Finally, appellant was asked if, with those rights in mind, he wished to talk. Detective Parker testified that appellant did not immediately talk because of the presence of other officers. After the two men moved to a more isolated area, appellant began his statement.

An express waiver of Miranda rights is not a constitutional requirement per se. The totality of the circumstances determines whether an accused has knowingly and intelligently waived his rights. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Love v. State, Ala.Cr.App., 372 So.2d 414 (1979); Sullivan v. State, Ala.Cr.App., 351 So.2d 659, cert. denied, Ala., 351 So.2d 665 (1977). As this court held in Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809 (1969), quoting from State v. Kremens, 52 N.J. 303, 245 A.2d 313, “Any clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth. The criteria is not solely the language employed but a combination of that articulation and the surrounding facts and circumstances.” A review of the totality of circumstances convinces us that the appropriate constitutional procedures were followed.

Appellant’s contention in oral argument that the state erred in not readvising appellant of his Miranda rights after a five-minute delay in making a statement is groundless. Anderson v. State, Ala.Cr. App., 339 So.2d 166 (1976).

Appellant’s final argument is that the trial court allegedly neglected to send appellant’s given requested charges with the jury for use during their deliberations. Appellant bases his argument on a passage from the record in which the trial court stated that, when the jury returned, it would have “the indictment, the forms of your verdict and the exhibits formally admitted.”

This court cannot review appellant’s contention. Appellant has not noted and we cannot find any objection made at the trial level or any ground in any post-trial motion. This issue was not preserved for our review. Herring v. State, Ala.Cr.App., 401 So.2d 296 (1981); Potter v. State, 46 Ala.App. 95, 238 So.2d 894 (1970).

We find no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM. McDONALD, Justice, ALDERMAN, Chief Justice,

license: Public Domain

text:
    Harold Gene LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. 51135.
    Supreme Court of Florida.
    July 1, 1982.
    Jack 0. Johnson, Public Defender and Douglas A. Lockwood, Asst. Public Defender, Tenth Judicial Circuit, Bartow, and Douglas M. Midgley, Public Defender, Twentieth Judicial Circuit, Fort Myers, for appellant.
    Jim Smith, Atty. Gen. and Charles Core-es, Jr. and James S. Purdy, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

A jury convicted Harold Lucas of first-degree murder and, agreeing with that jury’s recommendation, the trial judge sentenced him to death. On appeal we affirmed his conviction, but, because the trial judge had erroneously considered a nonstat-utory aggravating circumstances, we remanded for resentencing without the benefit of a new sentence recommendation by a jury. Lucas v. State, 376 So.2d 1149 (Fla.1979). Following our mandate, the trial judge heard argument of counsel and again sentenced Lucas to death. Lucas now appeals this sentence claiming that the trial judge abused his discretion by not properly reweighing and reevaluating the valid aggravating and mitigating circumstances. We again reverse and remand for an additional sentencing hearing.

The United States Supreme Court, when it upheld the constitutionality of Florida’s death statute in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), pointed out that both the trial judge and this Court have a keen and deep responsibility in imposing and reviewing death sentences. That Court stated:

Florida, like Georgia, has responded to Furman [Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346] by enacting legislation that passes constitutional muster. That legislation provides that after a person is convicted of first-degree murder, there shall be an informed, focused, guided, and objective inquiry into the question whether he should be sentenced to death. If a death sentence is imposed, the sentencing authority articulates in writing the statutory reasons that led to its decision. Those reasons, and the evidence supporting them, are conscientiously reviewed by a court which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality in the evenhanded operation of the state law. As in Georgia, this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed.

Id. at 259-60, 96 S.Ct. at 2970.

This Court restated the dual responsibility of the trial judge in Brown v. Wain wright, 392 So.2d 1327, 1331 (Fla.1981), where we said:

Florida’s death penalty statute, section 921.141, Florida Statutes (1979), directs that a jury and judge, not this Court, must weigh the evidence of aggravating and mitigating circumstances delineated in the statute to determine whether death is an appropriate sentence. The jury performs that function only to recommend a sentence to the trial judge. It then becomes the responsibility of the trial judge to weigh evidence of aggravating and mitigating circumstances in order to arrive at a reasoned judgment as to the appropriate sentence to impose.
This Court’s role after a death sentence has been imposed is “review,” a process qualitatively different from sentence “imposition.” It consists of two discrete functions. First, we determine if the jury and judge acted with procedural rectitude in applying section 921.141 and our case law.... '
The second aspect of out review process is to ensure relative proportionality among death sentences which have been approved statewide. After we have concluded that the judge and jury have acted with procedural regularity, we compare the case under review with all past capital cases to determine whether or not the punishment is too great.

(Footnote and citations omitted.) For the dual responsibility to be fulfilled the trial court must exercise a reasoned judgment in weighing the appropriate aggravating and mitigating circumstances in imposing the death sentence. To satisfactorily perform our responsibility we must be able to discern from the record that the trial judge fulfilled that responsibility.

The directions to the trial judge emanating from this Court in this cause may not have been clear, but, nevertheless, it was his responsibility to exercise a reasoned judgment in weighing the aggravating and mitigating circumstances on remand. After all, it is this sentence and not any prior one which may be carried out.

In a dialogue with counsel the trial judge expressed his belief that all this Court mandated was- cleaning up the language of his order. Although this statement could have been facetious, it tends to negate any supposition that he used reasoned judgment in reweighing the factors. There is nothing in the record to demonstrate that he engaged in a reasoned consideration.

Lucas also argues that the court erred in not impaneling an advisory jury, in not permitting him to introduce evidence of nonstatutory mitigating circumstances, and in not holding section 921.141, Florida Statutes (1979), unconstitutional as applied to him. The state moves to strike these points because Lucas, in asserting these points below, asked the trial court to go beyond the mandate of this Court. We do not fault the trial judge for following the letter of our mandate in this regard.

In Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), this Court denied Songer’s petition to present additional testimony when the cause had been remanded for a Gardner hearing, and we held that it was not error to decline the petition. On rehearing we held that Lock-ett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), did not invalidate Florida’s death penalty statute because we have always held that the list of statutory mitigating factors is not exclusive and that all relevant circumstances may be considered in mitigation. It would follow that on the evidence presented, section 921.141 was not unconstitutionally applied to Lucas.

We vacate the death penalty imposed in this cause and remand to the trial judge to conduct a new sentencing proceeding.

It is so ordered.

BOYD, OVERTON and SUNDBERG, JJ., concur.

McDONALD, J., concurs with an opinion.

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

McDONALD, Justice,

concurring.

I concur with this opinion. On remand, however, the trial judge should consider the recent United States Supreme Court decision of Eddings v. Oklahoma, - U.S. -, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Eddings reminds us that it is important for the sentencing authority to explicitly consider and weigh the defendant’s background and character along with the crime and the circumstances of its commission and states that

the rule in Lockett [v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)] is the product of a considerable history reflecting the law’s effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.

Id., at ——, 102 S.Ct. at 874.

ALDERMAN, Chief Justice,

dissenting.

The majority, in vacating the sentence of death, holds that the trial court did not exercise a reasoned judgment in weighing the aggravating and mitigating circumstances on remand from us. I disagree. In the first appeal in this cause, we remanded to the trial court to reweigh the aggravating and mitigating circumstances without allowing the nonstatutory aggravating circumstances of the atrocity of the attempted murders of two other victims to enter into the trial court’s equation. In my view, the trial court followed our directions, properly reweighed the circumstances eliminating the inappropriate circumstance, and reimposed the death sentence, thereby assuring us that the nonstatutory aggravating circumstance which we invalidated did not “tip the scales of the weighing process in favor of death.” Elledge v. State, 346 So.2d 998, 1003 (Fla.1977). Accordingly, I would affirm the sentence of death.

ADKINS, J., concurs.

      . The new sentencing order, prepared by the state at the direction of the trial judge, varied only slightly from the original and, in pertinent part, reads as follows:
      The aggravating circumstances are:
      1. The Crime of First Degree Murder was cortimitted only seconds, or at best, only minutes, before he committed two other felonies, to-wit: two separate counts of Attempted First Degree Murder.
      2. That each of the three crimes committed by the Defendant were carried out with such an indifference to others as to create great possible injury to others. The charge of First Degree Murder, in this case, was carried out in such a sadistic fashion as to be especially heinous, atrocious and cruel. Despite the Court’s doubts as to the efficacy of the death penalty, it is impossible for me to find any justifiable reason for disturbing the jury’s advisory sentence.

      . Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

      . We do not decide in the instant case whether Lockett rises to the level of a fundamental change in the law so as to warrant post-conviction relief. See Witt v. State, 387 So.2d 922 (Fla.1980).


author: McDONALD, Justice.

text:
    Pauline S. DORMAN, et al., Appellants, v. HIGHLANDS COUNTY HOSPITAL DISTRICT, Appellee.
    No. 61896.
    Supreme Court of Florida.
    July 1, 1982.
    James F. McCollum of the Law Offices of McCollum & Rhoades, Sebring, for appellants.
    William D. King and Michael G. Tanner of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   McDONALD, Justice.

Numerous taxpayers who reside within the Highlands County Hospital District appeal a circuit court order validating a bond issue proposed by the district. We have jurisdiction and affirm the final judgment of validation.

Following a two-and-one-half-year study, the Florida Department of Health and Rehabilitative Services issued a certificate of necessity allowing expansion of Highlands General Hospital. This hospital is owned and operated by the district, and on December 17, 1981 the district’s board of commissioners approved a resolution providing for the issuance of $11,500,000 in revenue bonds for improving and enlarging the hospital. After holding a hearing, the circuit court validated the bond issue proposal.

The appellants make the same claims here that they made in the trial court. They contend that the district’s complaint does not comply with section 75.04, Florida Statutes (1981), because it fails to state the interest that the bonds will bear, fails to allege the creation of a trust indenture, and fails to attach a full and complete copy of the board’s resolution. As did the circuit court, we find no merit to these claims.

Under subsection 75.04(1) a complaint seeking bond validation must set out the interest that the bonds are to bear. The instant complaint states that the bonds will bear “interest at rates not to exceed the maximum rate permitted by law at the time of issuance.” The appellants claim that subsection 75.04(1) should be read to require the setting forth of a specific rate and that the above-quoted language is defective. We disagree.

Bonds issued by this district fall within the scope of section 215.84, Florida Statutes (1981). Subsection (3) of that section sets out a formula for calculating the maximum rate of interest that government-issued bonds may bear. Holloway v. Lakeland Downtown Development Authority, 417 So. 2d 963 (Fla.1982). We find that the complaint satisfies subsection 75.04(l)'s requirement regarding rate of interest.

Subsection 75.04(2) states that bond validation complaints filed by special districts must “allege the creation of a trust indenture established by the petitioner for a bonded trustee acceptable to the court who shall certify the proper expenditure of the proceeds of the bond.” The instant complaint states that all payments on the bond issue will be

pursuant to a Trust Indenture substantially in the form attached as Exhibit 1 to the Bond Resolution (herein called the “Indenture”), to be made between Plaintiff and one of the banks or trust companies named therein, to be designated by the Issuer by the adoption of a subsequent resolution, and which shall satisfy all requirements of law, as trustee (herein called the “Trustee”).

The appellants claim that the complaint evidences no “present” creation of a trust indenture. Again, we disagree.

The bond resolution, in its definition of “trustee,” states that one of three listed banks will be designated as the trustee in a subsequently adopted resolution. The exhibit referred to above is a 107-page trust indenture, containing numerous blanks which, presumably, will be filled in at the time of execution. We find that the complaint, which includes the bond resolution and trust indenture, complies with subsection 75.04(2).

Appellants also contend that the district failed to attach to the complaint a full and complete copy of the bond resolution. The court, however, found that the district had done correctly everything necessary to get this bond issue validated. Trial court decrees are presumed to be correct, and the burden is on the appellant to demonstrate their incorrectness to a reviewing court. State v. Town of Sweetwater, 112 So.2d 852 (Fla.1959). After reviewing the record, we find that the appellants have failed to carry this burden.

Finding no merit to appellants’ contentions, we affirm the circuit court’s validation of the instant bond issue.

It is so ordered.

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

      . A special tax district created by ch. 61-2232, Laws of Fla.

      . Art. V, § 3(b)(2), Fla.Const.

      . We agree with the trial court’s observation that everything that ought to be done has been done and whether it is good or bad must be left to the wisdom of the district commissioners because a court may not substitute its judgment for that of the district’s board.


author: McDONALD, Justice. SUNDBERG, Justice,

text:
    NATIONAL GYPSUM CO., Petitioner, v. TRAVELERS INDEMNITY CO., Respondent.
    No. 60520.
    Supreme Court of Florida.
    July 8, 1982.

      J. Robert Olian of Britton, Cohen, Kaufman, Benson & Sehantz, Miami, for petitioner.
    Richard C. Milstein of August, Pohlig & Milstein, Miami, and Lionel M. Spring of Deutsch & Spring, New York City, for respondent.
    Joseph C. Jacobs and Thomas M. Ervin, Jr. of Ervin, Yarn, Jacobs, Odom & Kitchen, Tallahassee, for American Ins. Ass’n, amicus curiae.
   McDONALD, Justice.

We have for review Travelers Indemnity Co. v. National Gypsum Co., 394 So.2d 481 (Fla. 3d DCA 1981), which conflicts with Maule Industries, Inc. v. Gaines Construction Co., 157 So.2d 835 (Fla. 2d DCA 1963). We have jurisdiction and approve the result reached in Travelers.

Caminos y Estructuras, C. A., a South American company, contracted with Pavari-ni Construction Company of Puerto Rico to build a hotel and casino on Aruba, Netherlands Antilles. To protect the owner from claims, Pavarini purchased ajabor .and. material bond from. Travelers. Pavarini subcontracted for the drywall, plastering, and masonry work with Goodnow Company of Florida, Inc.

Goodnow purchased some of its supplies from National Gypsum Company on credit and paid its account month-by-month after receiving payment for completed work from Pavarini. A dispute arose between Pavari-ni and Goodnow, however, which resulted in Pavarini’s refusal to make more payments to Goodnow and, eventually, in Goodnow’s being thrown off the job. During this time, Goodnow failed to pay National Gypsum.

National Gv.psum sued. Goodnow for materials delivered butjiot paid for and then, a monthlater^amended its^compíalnt to Travelers~asa secondjiefendant. Gopdnow had gone out of business, and National Gypsum oE55ned-a-defauIL_judgment against' that company. The trial court granted a summary judgment against Travelers and awarded National Gypsum $105,565.00. Travelers appealed, and the district court reversed, finding that National Gypsum had failed to give written notice of the claim within 90 days of the last delivery, as required by Pavarini’s bond with Travelers, to any two of (1) the owner (Caminos y Es-tructuras), (2) the principal (Pavarini), or (3) the surety (Travelers).

Writing for the majority, Judge Nesbitt articulated a broad rule that failure to comply with a condition precedent, in this ease notice, precludes recovery against a surety. Judge Hendry, in dissent, disagreed with the majority’s basic holding and expressed his concern over the instant ease’s impact on the general rule that an insurance carrier may absolve itself of a contractual duty only to the extent that a breach of contractual terms causes demonstrable injury to the carrier. In a special concurrence Judge Schwartz agreed with the result, but stated that he would confine the holding to only would-be beneficiaries of performance and payment bonds on building and construction contracts. We find that Judge Schwartz’s special concurrence sets out the proper rule which best preserves the rights and expectations of the parties.

Both National Gypsum and Travelers rely on insurance cases dealing with prejudice to insurers to support their respective positions. We do not find those cases to be on point with the instant situation. When notice of a possible claim is not given to an insurance company, prejudice is presumed, but recovery is not pr5cIMed~tf the insured can demonstrate lack of_act.ual prejudice. H. S. Equities, Inc. v. Hartford Accident & Indemnity Co., 334 So.2d 573 (Fla.1976); Tiedtke v. Fidelity & Casualty Co., 222 So.2d 206 (Fla.1969). Cf. Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977) (insurer must show prejudice).

In Brakeman the Pennsylvania Supreme Court articulated several reasons for allowing recovery against an insurer despite lack of proper notice: insurance contracts are not truly consensual; they involve forfeitures; and allowing recovery is the more equitable course of action and furthers the reasonable expectations of those who purchase insurance. Id. at 76-77, 371 A.2d at 198. The same concerns are not present in the instant case. Pavarini secured the bond for the benefit of the owner; protecting materialmen, such as National Gypsum, was not the main purpose. Additionally, the construction industry is well aware of the necessity of giving timely notice, and the notice provision here appears to be fairly standard throughout the industry.

Courts are not authorized to rewrite contracts. Home Development Co. v. Bursani, 178 So.2d 113 (Fla.1965). This, however, is essentially what the trial court did. As Judge Schwartz pointed out, National Gypsum is, at best, merely a donee third-party beneficiary of the instant bond. We see no reason to allow National Gypsum to enjoy the benefits of the bond without bearing its burdens as well.

Finding that the special concurrence sets out the better rule, we approve the result reached by the third district court. Maulé Industries is disapproved to the extent of conflict with this opinion.

It is so ordered.

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

SUNDBERG, J., dissents with an opinion, in which ADKINS, J., concurs.

SUNDBERG, Justice,

dissenting.

I respectfully dissent. Because we deal here with a compensated surety I would follow the reasoning espoused in Maule Industries, Inc. v. Gaines Construction Co., 157 So.2d 835 (Fla. 2d DCA 1963). That is, to the extent the surety is not prejudiced by an immaterial breach of a condition of the bond the beneficiary should be allowed to recover. As the majority recognizes, this is the rule in Florida with respect to policies of insurance. Unlike the rule expressed in Maulé Industries, however, the authorities dealing with policies of insurance place the burden on the insured to demonstrate lack of prejudice to the insurer. See H. S. Equities, Inc. v. Hartford Accident & Indemnity Co., 334 So.2d 573 (Fla.1976); Tiedtke v. Fidelity & Casualty Co., 222 So.2d 206 (Fla.1969).

Even though the materialman is a donee beneficiary of the bond secured by the general contractor, I believe he has a substantial interest in the transaction which should place him on the same footing with an insured under a contract of casualty insurance. He has no control over either the decision of the general contractor to supply the bond or its terms. Nonetheless, he is deprived (in this state) of the benefits of the mechanics’ lien law by that act of the general contractor over which he has no control. The ends of justice, it occurs to me, are better served by permitting recovery by the materialman when he can demonstrate that the surety is not prejudiced by late notice.

ADKINS, J., concurs.

       Art. V, § 3(b)(3), Fla.Const.


author: ALDERMAN, Chief Justice.

text:
    Anibal JARAMILLO, Appellant, v. STATE of Florida, Appellee.
    No. 60570.
    Supreme Court of Florida.
    July 8, 1982.
    Louis Casuso and Edward McHale of the Law Offices of Casuso & McHale, Coral Gables, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for appel-lee.
   ALDERMAN, Chief Justice.

Aníbal Jaramillo appeals his two convictions for murder in the first degree and his sentences of death. Finding that the State’s evidence is legally insufficient to support the guilty verdicts, we reverse the convictions and remand to the trial court with directions to discharge Jaramillo.

The State’s case against Jaramillo was based on circumstantial evidence. A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. In McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977), we reiterated this standard to be that “[wjhere the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” See also McArthur v. Nourse, 369 So.2d 578 (Fla.1979). Proof that Jaramillo’s fingerprints were found on certain items in the murder victims’ home was the only evidence offered by the State to show that Jaramillo was involved in these murders. This proof is not inconsistent with Jaramillo’s reasonable explanation as to how his fingerprints came to be on these items in the victims’ home. The State failed to establish that Jaramillo’s fingerprints could only have been placed on the items at the time the murder was committed. Cf. Tirko v. State, 138 So.2d 388 (Fla. 3d DCA 1962).

The evidence the State introduced at trial showed that on December 2, 1980, police were called to a residence in Dade County where they discovered the bodies of the two victims. Each victim had been shot in the head three times. The associate medical examiner for Dade County stated that the deaths had occurred between 2 a. m., November 30, 1980, and 2 a. m., December 1, 1980. The bodies were lying in the dining-living room area where there were money and projectiles and shell casings scattered about on the floor. The male victim’s hands had been tied behind his back with cord, and the female victim’s hands had been handcuffed. On the handcuffs were identifiable latent fingerprints which did not belong to Jaramillo. A coil of cord similar to the cord used to tie the male victim’s hands was found near his body. Near the coil was the packaging for a knife. Jaramillo’s latent fingerprint was found on this item. A knife, also possessing Jaramil-lo’s latent fingerprint, was found on the dining room table. A grocery bag was located next to a chair on the east side of the table in the dining room. Jaramillo’s fingerprint was found on this bag. Two bedrooms and two closets had been ransacked, and numerous latent fingerprints were obtained from this area, none of which belonged to Jaramillo. Another fingerprint which did not belong to Jaramillo was also found on the knife wrapper. The print technician stated that he had no way of determining when the fingerprints were placed on these items. After introducing this evidence, the State rested, and Jaramil-lo moved for judgment of acquittal on the basis that since the State’s entire case was based on the fingerprints, it failed to carry its burden of proving that the prints were left at the murder scene at the time of the crimes and at no other time. The trial court denied this motion.

Jaramillo then took the stand to explain how and when his fingerprints were placed on the items in question. He stated that he and Edison Caicedo, the male victim’s nephew who lived with the victims, had known each other for several years. On Saturday, November 29, 1980, he went to Edison’s home. Edison, who was home alone at the time, asked Jaramillo if he would help him straighten the garage because it was in shambles. While they were stacking boxes in the garage, Jaramillo asked Edison if he had something to cut them with so that they could be more easily stacked. Edison told him that on the table in the dining room there was a bag with a knife in it. Jaramillo took the knife out of the bag, which he said also contained light bulbs, tissue paper, and rope, and took the knife out of its wrapper, leaving the wrapper in the dining room. He then went back to the garage to cut some boxes so they could be squashed. When he finished with the boxes and put them in his car, he placed the knife back on the dining room table where he had found it. He went home about 10 o’clock that Saturday night.

The State then called Mark Breslaw, a next-door neighbor of the victims, as a rebuttal witness. He testified that on Sunday, November 30,1980, at about 7 p. m., he heard very loud noises from the victims’ home which sounded like fighting, furniture being pushed around, a scream, and a gunshot. Upon cross-examination by defense, Breslaw stated that about an hour after hearing these noises he saw Edison about one mile from his house and that Edison had a look of anxiety on his face. Another rebuttal witness for the State, Elizabeth Lambroglia, then testified that at approximately 7:45 p. m. on Sunday, November 30, she observed Edison standing near a sign located about a half mile from the victims’ home and that he appeared frightened. She and her husband drove Edison to his home. They remained in the car while Edison went up to the house for less than a minute. They then took him to the shopping center where some people who knew him picked him up and drove away.

At the close of the evidence, Jaramillo again moved for judgment of acquittal. This motion was denied. He later filed a motion for new trial on the basis that the court erred in denying his motion for judgment of acquittal since the evidence was insufficient as a matter of law to support his conviction. He also renewed his motion for judgment of acquittal. These motions were denied.

We conclude that the State’s evidence was not legally sufficient to establish a prima facie case against Jaramillo. Accordingly, we reverse his convictions for first-degree murder and remand to the trial court with directions to discharge him.

It is so ordered.

BOYD, OVERTON, SUNDBERG, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Curtis Lee GARVIN, Respondent.
    No. 61286.
    Supreme Court of Florida.
    July 8, 1982.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for petitioner.
    Charles S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   PER CURIAM.

We have jurisdiction to review the decision of the district court of appeal, Garvin v. State, 413 So.2d 34 (Fla. 1st DCA 1981), which passed upon a question certified to be of great public importance. Art. V, § 3(b)(4), Fla.Const.

As we have recently decided the issue in Abram v. State, 408 So.2d 215 (Fla.1981), in accordance with that decision, we reverse the decision of the district court of appeal and remand this case with instructions to reinstate the sentences of the trial court.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Rosemary SIRIANNI, Respondent.
    No. 61598.
    Supreme Court of Florida.
    July 8, 1982.
    Jim Smith, Atty. Gen. and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and Brynn G. Newton, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondent.
   PER CURIAM.

On March 31, 1982, this Court entered its Order accepting jurisdiction and dispensing with oral argument. We have now determined that the Court is without jurisdiction, and therefore the Petition for Review is denied, Fla.App., 411 So.2d 198.

No Motion for Rehearing will be entertained by the Court.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. David Mark CANTRELL, Respondent.
    No. 60721.
    Supreme Court of Florida.
    July 8, 1982.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for petitioner.
    David M. Cantrell, in pro. per.
   McDONALD, Justice.

Cantrell successfully appealed a trial court’s denial of his motion for post-conviction relief wherein he contended that the imposition of separate sentences for the offenses of burglary and possession of burglary tools was improper. When it reversed the trial court’s denial the First District Court of Appeal certified the following question as being of great public importance:

The Supreme Court of the United States having ruled in Albernaz v. United States [450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) ], that the imposition of consecutive sentences for violation in one criminal transaction of two separate statutes is not precluded by the double jeopardy clause of the Fifth Amendment of the United States Constitution, does the Supreme Court of Florida desire to adopt the same construction or a more restrictive construction to Article I, Section 9, of the Florida Constitution?

Cantrell v. State, 405 So.2d 986, 990 (Fla. 1st DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

In our recent decision of Borges v. State, 415 So.2d 1265 (Fla. 1982), we held that it is permissible to impose consecutive sentences for violations committed during one criminal transaction of two or more separate statutes. To answer the instant question, we apply and construe article I, section 9 of the Florida Constitution in the same manner that the United States Supreme Court applied the fifth amendment to the United States Constitution in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), as it relates to consecutive sentences for violation in one criminal transaction of two separate statutes. The decision of the district court in Cantrell is quashed.

It is so ordered.

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


author: PER CURIAM. BERANEK, Judge,

text:
    Joan E. GRIFFIN, Appellant, v. Leslie AUSTIN, Peter J. Chansen, Greta Elliott, Hacienda Flores, Inc., and Bellafonte Underwriters Insurance Company, Appellees.
    No. 81-70.
    District Court of Appeal of Florida, Fourth District.
    March 10, 1982.
    Rehearing Denied June 25, 1982.
    R. Fred Lewis of Kuvin, Klingensmith & Lewis, P.A., and Harry A. Gaines, Miami, for appellant.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED.

DOWNEY and HERSEY, JJ., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I would reverse on the authority of Zabner v. Howard Johnson’s Incorporated of Florida, 227 So.2d 543 (Fla. 4th DCA 1969).


text:
    FLORIDA POWER AND LIGHT COMPANY, self-insured, Appellant, v. Robert E. DOWLING, Appellee.
    No. AE-97.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    Rehearing Denied April 6, 1982.
    Albert E. Harum of Harum & Harum, Coral Gables, for appellant.
    J. J. Goodmark of Goodmark & Good-mark, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Guzman v. Surge Electric, Inc., 381 So.2d 287 (Fla. 1st DCA 1980).

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.


author: PER CURIAM. McCORD, Judge,

text:
    WESTCHESTER GENERAL HOSPITAL & Sylvia Urlich, as President of Westchester General Hospital, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
    Nos. TT-222, W-189.
    District Court of Appeal of Florida, First District.
    March 22, 1982.

      Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for appellants.
    Eric J. Haugdahl, Tallahassee, for appel-lee.
   PER CURIAM.

In this consolidated appeal, one point survives from a cross-appeal involving an order directed to a rule challenge brought by Westchester General Hospital, contending that Rules 10-5.02(21) and 10-5.05(2) were invalid exercises of legislative authority. Those rules were declared invalid exercises of legislative power by the hearing officer on the narrow ground that the HRS in promulgating them did not address in its economic impact statement the rules’ impact on the regulated hospitals. We agree with the hearing officer and affirm the administrative order.

The cross-appellees maintain that the inadequacies of the economic impact statement were harmless error because the proposed rules merely reiterated their statutory authority. See Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944 (Fla.1979). Hawkins, however, is distinguishable because the rules in the instant case were interpretative of the statute and have economic impact. See State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). Cf. Department of Health and Rehabilitative Services v. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979); School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979).

The remaining arguments urged by the cross-appellee that the rules were otherwise invalid are not ripe for our consideration. See General Development Utilities, Inc. v. Florida Public Service Commission, Division of Administrative Hearings, 385 So.2d 1050 (Fla. 1st DCA 1980).

AFFIRMED.

ERVIN and SHAW, JJ., concur.

McCORD, J., dissenting.

McCORD, Judge,

dissenting.

It is my view that the economic impact upon previously exempt health care facilities results from the statute which repeals their grandfather rights to exemption from certificate of need requirements, rather than from the rule which merely interprets the ambiguity of the statute. The hearing officer, in his final order, found:

The Department did not consider the increased costs that a provider would incur because the project would be subject to Certificate of Need requirements rather than exempt under the grandfather clause. There are such costs, and they are susceptible of estimation. The Department did not consider these costs and made no effort to estimate them.

Such costs to any health care providers whose grandfather rights are revoked and who as a result determine to seek certificates of need result directly from the legislative act rather than the rule which merely interprets the ambiguity of the act. Furthermore, I can see nothing to be gained from the Department attempting to speculate on how many of the potential health care providers who have lost their grandfather rights would pursue applications for certificates of need and of such number the amount of costs that would be involved in such pursuit. Such would merely be an exercise in futility. I would, therefore, reverse.

      . We observe that there is a pending Section 120.57 hearing that is related to the subject matter of this appeal. Our invalidating the rule here would not necessarily destroy the cross-appellant’s position at that proceeding. Incipient, non-rule policy may be explicated at a Chapter 120.57 proceeding. Dept, of Highway Safety & Motor Vehicles v. Florida Police Benevolent Assoc., 400 So.2d 1302 (Fla. 1st DCA 1981); Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 1280 (Fla.1980); Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980).


text:
    STATE of Florida, Appellant, v. Donald CASPER, Appellee.
    No. AG-45.
    District Court of Appeal of Florida, First District.
    April 21, 1982.

      Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellant.
    Louis 0. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for appellee.
   ON PETITION FOR REHEARING

PER CURIAM.

Urging that this Court, 418 So.2d 1280, erred in affirming, without opinion, the trial court’s order granting the defendant’s motion to dismiss on the ground of entrapment, the State petitions for rehearing and clarification. Although we do not recede from our earlier affirmance, we find it appropriate to explicate our reasons for sustaining the trial court’s order.

The essential facts to this appeal were established by a Florida Rule of Criminal Procedure 3.190(c)(4) motion: On April 28, 1981, the Jacksonville Sheriff’s Office deployed a decoy in the unit block of the West Duval Street in order to apprehend potential robbers and thieves. The decoy was dressed in old clothes and doused himself with alcohol in order to appear to be under the influence of alcoholic beverages. He was in a semi-prone position on the sidewalk with several bills amounting to $150 protruding from his rear pant’s pocket. The bills were clearly visible to passersby and were stapled together. If someone approached the decoy and talked to him, he was to pretend that he was unconscious and could not respond. Several robberies and purse snatchings had occurred in the general area of the site of the decoy. However, no robberies or thefts had occurred at this specific site to the best knowledge of the Sheriff’s office. None of the unsolved robberies or thefts involved the same type of victim or modus operandi of this case. The Sheriff’s office had no suspects or identifications of possible suspects for the thefts and robberies and did not employ the decoy to catch any particular individual. On April 28, the defendant walked along Duval Street and observed the decoy lying on the side of the street. The defendant walked by and then returned to the decoy, reaching down and removing the protruding money. He then walked on down the street, where the police arrested him. The police had not observed the defendant in the area prior to his arrest. They had no knowledge that he had previously engaged in similar theft-related crimes prior to this arrest.

To dispose of some preliminary matters, we reject the State’s argument that the motion was improperly granted because the State had filed a traverse and demurrer to the defendant’s motion and had asserted that there were material facts in dispute. This argument is expressly contradicted by the record. The State only demurred to the above statement of facts and did not traverse it. Further, such an argument was never made in the State’s brief, and it is not appropriate to raise new matters on petition for rehearing. See O’Steen v. State, 92 Fla. 1062, 111 So. 725 (1926); Leslie Bros., Inc. v. Roope, 108 Fla. 289, 148 So. 212 (1933), adhered to 112 Fla. 734, 150 So. 804.

The precise issue presented by this appeal is whether the evidence in a light most favorable to the State demonstrates that, at a time when the defendant had no intention to steal the decoy’s money, the police, acting through the decoy, induced the defendant to commit grand larceny. We note that entrapment is normally a question for the jury unless the evidence is so clear and convincing that the trial judge can pass on the issue as a matter of law. State v. Rouse, 239 So.2d 79 (Fla. 4th DCA 1970). A high degree of government participation in the crime scenario is not necessarily impermissible. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); State v. Dickinson, 370 So.2d 762 (Fla.1979). Moreover, the police are not precluded from acting in good faith for the purpose of detecting a crime and merely furnishing an opportunity for the commission of the crime by one who had the required criminal intent. Lashley v. State, 67 So.2d 648 (Fla.1953).

It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.

Newman v. United States, 299 F. 128, 131 (4th Cir. 1924); accord State v. Rouse, supra.

Under the most current formulations of the United States Supreme Court, the entrapment defense “focuses on the intent or predisposition of the defendant to commit a crime.” State v. Brider, 386 So.2d 818, 820 (Fla.2d DCA 1980); accord, United States v. Russell, supra; Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Accordingly, where the defense of entrapment is raised, the State must show predisposition by the defendant to commit the crime. See Dupuy v. State, 141 So.2d 825 (Fla. 3rd DCA 1962). Moreover, the State must make a showing amounting to more than mere surmise and speculation that the intent to commit the crime originated in the mind of the accused and not the police. Id.

The State may demonstrate predisposition by proof of the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime. Story v. State, 355 So.2d 1213 (Fla. 4th DCA 1978). Moreover, evidence of pri- or unlawful acts, similar to the one with which the defendant is charged, is ordinarily admissible to rebut a defense of entrapment. See, e.g., Drayton v. State, 292 So.2d 395 (Fla. 3rd DCA 1974), cert. denied 300 So.2d 900 (Fla.1974); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974), cert. denied, 294 So.2d 91 (Fla.1974). Upon this record, we are unable to find any evidence which would tend to show predisposition so as to defeat a motion to dismiss under Rule 3.190(c)(4), and the State did not traverse the facts as stated in defendant’s motion. There is no evidence of any prior conduct of the defendant that would have shown predisposition. There is no evidence that he was engaging in criminal activity before he took the money from the decoy. See Du-puy, supra. No ready acquiescence is shown; on the contrary, the defendant’s acts, as stated in the motion, demonstrate only that he succumbed to temptation. The record, as such, reveals that the decoy did not detect or discover, nor could he reasonably be intended to discover, the type of crime the police were attempting to prevent by the use of the decoy, i.e., robberies and purse snatchings. Indeed, lifting some money protruding from the pocket of a seemingly unconscious, drunken bum is just not sufficiently similar to either robbery or purse snatchings. Upon these facts, the decoy simply provided the opportunity to commit a crime to anyone who succumbed to the lure of the bait. Accordingly, we uphold the trial court’s ruling that, as a matter of law, the defendant was entrapped. In doing so, we do not wish to proscribe any use of the police decoy procedure. We hold only that, where the defense of entrapment is raised, the State must demonstrate [or, as in this case, allege] facts tending to show a predisposition on the accused’s part to commit the crime. Absent such a showing or allegation, as the case may be, we will have no alternative but to conclude that the accused’s entrapment defense has merit and prevents the conviction for the offense.

Citing State v. J. T. S., 373 So.2d 418 (Fla. 2d DCA 1979), the State argues that the issue of predisposition is not a proper ground upon which to grant a motion to dismiss. For one, we again note with displeasure that this particular argument was never presented in the State’s brief. Second, while entrapment is normally a question for the jury, the trial judge may pass on the issue as a matter of law where the evidence is clear and convincing. See State v. Rouse, supra. Here, under no reasonable construction of the facts of record could the State establish a prima facie case for predisposition. Therefore, we conclude that the holding of State v. J. T. S., supra, is inapplicable here.

Petition for rehearing denied.

McCORD, ERVIN and SHAW, JJ., concur.


text:
    Jerry MILLER, Appellant, v. BEN’S SERVICE STATION, INC. and Gulf Insurance Company, Appellees.
    No. AD-482.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Rehearing Granted in Part, Denied in Part July 30, 1982.
    Thomas R. Trompeter, of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for appellant.
    John F. McMath, Miami, for appellees.
   PER CURIAM.

In this workers’ compensation case, the claimant appeals an order of the deputy commissioner awarding disability benefits and attorney’s fees. We reverse and remand as to Points I and IV, relating respectively to alleged errors in the calculation of claimant’s average weekly wage and the amount of attorney’s fees awarded. We affirm as to Points II and III, finding them to be without merit to the extent they are not disposed of by our resolution of Point I.

Claimant was injured in a compensable accident on July 22, 1975. In his deposition and at the hearing on the claim for benefits, claimant testified that he earned $175.00 a week as salary plus commissions which averaged $55.00 to $75.00 per week. The employer testified that he paid claimant commissions in cash on a monthly basis, the amount averaging between $60.00 and $75.00 a week, in addition to paying claimant a salary of $175.00 per week at the time of the accident.

The deputy found that “(Claimant’s) rate of pay was $175.00 per week plus commissions. The commissions were paid in cash on a monthly basis and no records were kept of the amount. The employee did not report the commissions to the Internal Revenue Service.”

From this finding we do not know whether the deputy disregarded the claimant’s and the employer’s testimony. The order has certain facial inconsistencies and the basis of the award is unclear. While the $105.00 per week for 25% permanent partial disability was the maximum compensation rate that could be awarded at the time of the accident, the order appears to state that commissions should not be included in the average weekly wage under the circumstances.

Commissions fall under the term “wages” and are to be included in a determination of the average weekly wage. See, Waymire v. Florida Industrial Commission, 174 So.2d 404 (Fla.1965); Section 440.02(12), Florida Statutes (1975).

Having found that claimant received commissions over and above his salary, the deputy erred in not finding a dollar amount and by not determining an average weekly wage dollar amount which clearly included the amount of commission income.

In Decker v. City of West Palm Beach, 379 So.2d 1004 (Fla. 1st DCA 1980), we reversed and remanded for more definitive findings of fact on the question of claimant’s average weekly wage where we were unable to determine from the order the basis of the deputy’s determination of that issue. See, Brown v. S. S. Kresge Co., 305 So.2d 191, 194 (Fla.1974); Eden Roc Hotel v. Karasik, IRC Order 2-2717 (1975); North Shore Hospital v. Courtright, IRC Order 2-2840 (1975).

The critical component in the formula for determining the duration of compensation for claimant’s permanent partial disability is “diminution of wage-earning capacity,” which presumptively represents the difference between the injured employee’s wage-earning capacity before and after the injury. Wage-earning capacity before the injury is measured solely by the employee’s average weekly wage. Kerce v. Coca-Cola Company-Foods Division, 389 So.2d 1177 (Fla.1980).

The calculation of average weekly wage in this case does not go to the claimant’s compensation rate, but to the proper determination of his loss of wage-earning capacity, to be translated into a percentage of permanent partial disability benefits. See, American Health Plan v. Levin, IRC Order 2-3353 (1978). The inclusion of the commission income would result in an average weekly wage greater than $175.00. A comparison of the average weekly wage with claimant’s post-injury earnings, considered along with the Walker v. Electronic Products & Engineering Co., 248 So.2d 161 (Fla.1971), criteria to measure loss of wage-earning capacity, may result in an increase in the percentage of permanent partial disability. Such an increase would not affect the compensation rate, but would increase the number of weeks that claimant would receive payment of benefits. If it was the deputy’s intent to limit the average weekly wage to $175.00, this could have affected the determination of permanent partial disability. However, we do not wish to imply that the deputy could not appropriately make a determination of an overall 25% permanent partial disability of the body as a whole.

Accordingly, the cause is remanded for clarification and determination of that portion of the order concerning commissions and the related factual finding of average weekly wage, and for a re-evaluation of the attorney’s fees award in view of this court’s modification of the order on appeal.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    LEE COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. The EXCHANGE NATIONAL BANK OF TAMPA, as Trustee, et al., Appellees.
    No. 81-1176.
    District Court of Appeal of Florida, Second District.
    May 28, 1982.
    As Amended on Denial of Rehearing July 21, 1982.
    Frank A. Pavese and Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellant.
    Harold Hume, Jr. of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, and S. W. Moore of Brigham, Reynolds, Moore, Muir & Gaylord, Sarasota, for appellee The Exchange Nat. Bank of Tampa, as Trustee.
   GRIMES, Acting Chief Judge.

This is an appeal from that portion of a condemnation judgment which awarded severance damages to the appellee.

In October of 1979, Lee County filed suit to condemn some 3,500 acres from various owners for use in conjunction with the proposed Southwest Florida Regional Airport. Appellee holds title as trustee to 2,932 acres of undeveloped land lying northeast of the proposed airport. The county condemned 127 acres of appellee’s land which represents the most easterly extension of the airport site. A sketch showing the relationship between appellee’s land and the proposed airport follows:

Preliminary studies for the airport indicated that there would be a significant noise impact on the area surrounding the airport. To ameliorate the noise problem, the county determined to take far more property than was needed for the actual airport facility. The rest is intended to form “environmental buffer zones” at both ends of the airport. All of the 127 acres of appellee’s property being taken is within the buffer zone and will not be developed or disturbed in any manner.

On the issue of severance damages, the court denied the county’s motions to exclude evidence of any decrease in value of appellee’s remaining property caused by the construction of the proposed facility on property taken from other landowners. Thus, appellee’s appraisers were permitted to testify that because of the proximity to the airport, the bulk of appellee’s remaining property would no longer be suitable for residential purposes which was its highest and best use. The jury returned a verdict of $267,000 for the 127 acres taken and $968,400 as damages to the remainder.

The county raises two primary points, but the only one which we believe to have merit is whether the court erred in allowing the jury to consider evidence showing a decrease in the value of the appellee’s remainder caused by the use to which the property taken from other landowners will be put.

When a portion of a landowner’s property is acquired by eminent domain, he is entitled to be paid not only for the land taken but also for damages suffered by the remainder. 4A P. Nichols, The Law of Eminent Domain § 14.02 (rev. 3d ed. P. Rohan 1981). In Florida, the right to severance damages is now guaranteed by section 73.-071(3)(b), Florida Statutes (1979). Often, the damage to the remaining land occurs because it has been reduced by the taking to a smaller size or even cut in two. Sometimes the depreciation occurs because of the condemnor’s intended use of the taken property. We are presently concerned with the latter aspect of damages.

In the case of a partial taking, a landowner is generally entitled only to such damages to the remainder as are attributable to the use or activity on the land which is taken and is not entitled to such consequential damages from activity occurring on land which is taken from others. An-not., 59 A.L.R.3d 488, 499 (1974). The most prominent authority for this rule is Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328 (1924), in which the government took a portion of the landowner’s property for use in the construction of a nitrate plant. However, the actual plant was to be built on property taken from other landowners. In rejecting the landowners’ claim for damages to the remainder caused by the proposed nitrate plant, the court said:

The rule supported by better reason and the weight of authority is that the just compensation assured by the 5th Amendment to an owner, a part of whose land is taken for public use, does not include the diminution in value of the remainder, caused by the acquisition and use of adjoining lands of others for the same undertaking.

266 U.S. at 372, 45 S.Ct. at 117 (citations omitted).

However, the rule is often subject to an exception which authorizes an award for damages to the remainder where the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put. Annot., 59 A.L.R.3d 488, 501 (1974). A good example of the application of the exception is found in cases in which the landowner is permitted to recover for the damages to the remainder of his property caused when the condemned land is to be used as part of the construction of a highway. E.g., Andrews v. Cox, 129 Conn. 475, 29 A.2d 587 (1942). These cases are grounded on the premise that it is impossible to separate the damages caused by the small portion of the highway built upon the taken land from the damages caused by the highway as a whole. But see Kentucky Department of Highways v. Williams, 487 S.W.2d 290 (Ky.Ct.App. 1972).

A leading case involving the taking of property for use as an airport is Boyd v. United States, 222 F.2d 493 (8th Cir. 1955). In Boyd the government condemned fifteen acres of an eighty-two acre farm which was to be located at the northern tip of the airport complex. In rejecting the landowners’ claim that they were erroneously denied the opportunity to prove that their remainder had been damaged by the fact that the taken property was to be used for airport purposes, the court said:

But a landowner’s right to compensation for such a depreciating injury to his remainder has relation only to the affecting use that may be made of the taken part of his own tract and “does not include the diminution in value of the remainder caused by the acquisition and use of adjoining lands of others for the same undertaking.” Campbell v. United States, 266 U.S. 368, 372, 45 S.Ct. 115, 117, 69 L.Ed. 328.
Appellants therefore could not claim a right to prove or recover for any diminution in value which might be occasioned to their remainder by the fact that it was being made to adjoin an air base generally, of which their 15.7 taken-acres were to constitute merely some slight, incidental or abstract segment — for example, a vacant border area — having no specifically demonstrative and directly affective utilization or function. Any depreciating injury which would exist to their remainder in such a situation would have to be regarded legally as being simply a consequence from the air base generally and as not being provably a product of their 15.7 taken-acres. And in respect to such a general, depreciating injury only, appellants would, of course, be in no different position of damage than their neighbors, whose farms the air base also adjoined, although none of their land had been appropriated for inclusion therein.

222 F.2d at 494-95.

In United States v. Kooperman, 263 F.2d 331 (2d Cir. 1959), the government condemned property for the construction of an ammunition storage facility. No portion of the actual facility was to be constructed upon the property taken from Ms. Kooper-man; it was to be used as a “buffer and safety zone” around the facility. The court of appeals affirmed the denial of consequential damages to the remainder of Ms. Kooperman’s property.

The power company had condemned a small piece of the landowner’s property in order to run a transmission line across it in Public Service Electric & Gas Co. v. Old-wick Farms, Inc., 125 N.J.Super. 31, 308 A.2d 362 (1973). On appeal from an award of severance damages, the Supreme Court of New Jersey posed the issue and stated the general principle as follows:
With respect to the primary issue raised on this appeal — whether a con-demnee, part of whose property has been taken, is entitled to compensation for damage to the remainder of his land where such damage is attributable to the effect of the total improvement constructed by the condemnor, including portions on adjoining lands acquired by others — the general rule is said to be that where it is possible to separate the element of damage to remaining lands due to use of the land taken from the owner, from the damage thereto flowing from the use of lands taken from others for the same project, the measure of damage is limited to that caused by use of the land taken from the owner. See 4A Nichols, Law of Eminent Domain, § 14.21(1) at 14-53.

125 N.J.Super. at 35, 308 A.2d at 364. The court observed that the consequential damages were not caused by the use to which the property taken from the landowner would be put but, rather, by the lines and towers located on adjoining property that lessened the residential value of the entire area. The landowner argued that the transmission line that crossed his property was an “integral and inseparable part of a single use to which the land taken and other adjoining land is put,” so that he was entitled to consequential damages by virtue of the exception to the general rule. In rejecting the landowner’s argument and reversing the award of severance damages, the court held:

While it is apparent that the transmission lines which transverse defendant’s property are physically an “integral and inseparable part” of the total project, we do not find that that fact requires a departure from the rule enunciated in Campbell v. United States, above.
In this respect the cases upon which Oldwick relies appear to be clearly distinguishable. In those cases, unlike here, the damage to the remaining lands resulting from the taking of a portion of the tract were inseparable from the damages to the remaining land attributable to the whole improvement. Since it is here practicable to separate the use of the land taken from that of the adjoining land, defendant is entitled to compensation only for the land taken and the use to which it will be put, and not for the use which will be made of the adjoining lands.

125 N.J.Super. at 38, 308 A.2d at 365.

Florida law on the subject is scarce. Our court recognized both the general rule and the exception in City of Tampa v. Texas Co., 107 So.2d 216 (Fla. 2d DCA 1958), but made no definitive application to the facts. In State Department of Transportation v. West Palm Beach Garden Club, 352 So.2d 1177 (Fla. 4th DCA 1977), the court denied severance damages predicated upon highway noise when a 150-foot strip of land off the edge of a city park was condemned for use as an interstate highway. The court held that the damage to the park was no different in kind from that suffered by anyone else similarly situated. Because it would seem to be impossible to separate the damages caused to the remainder of the park by the use of the taken property from the damages caused by the similar use of adjoining land, the court appeared to align itself with the minority of jurisdictions which fail to recognize an exception to the general rule. E.g., State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674 (1935). However, the holding in that case must be tempered by the fact that the decision was clearly influenced by considerations of estoppel against the city of West Palm Beach. Finally, we note that the holding in State Department of Transportation v. Capital Plaza, Inc., 397 So.2d 682 (Fla.1981), was consistent with the application of the general rule, but the court made no mention of it. There a service station owner unsuccessfully sought severance damages for a partial taking to widen a highway on the theory that the erection of a median as part of the highway project reduced the traffic flow into his business. The court reasoned that because the median had been erected on land already owned by the DOT, the damage had not resulted directly from the taking.

We accept the general rule and its concomitant exception as an appropriate standard to measure severance damages when the diminution of value to the remainder is caused by the taking or use of the land of others for the same undertaking. As for the present case, we are convinced that the facts fall within the scope of the general rule rather than its exception. While the value of its entire property may have been greatly reduced by virtue of the construction of the nearby airport, the appellee could make no claim for severance damages if the county had not chosen to condemn any of its property. Weir v. Palm Beach County, 85 So.2d 865 (Fla.1956). Yet, the appellee will be in no different position as a result of the taking of its 127 acres because this land will be left in its natural state as a buffer zone. The taken property will not be utilized in any manner for the operation of the airport. Hence, it was error for the court to permit the appel-lee’s appraisers to predicate their opinions upon consequential damages caused to the remainder by the proximity to the airport.

We find unpersuasive appellee’s argument that the taken land is an essential part of the airport project because airplanes will periodically occupy the air space above it. As the court stated in Boyd v. United States:

The fact that runways, located on other land taken, were so directioned that planes would take off or come in over appellants’ remainder would not make their 15.7 taken-acres constitute a direct and identifiable element of depreciation merely because it was an abstract part of the general airbase area.

222 F.2d at 496. Unlike the runway or the operations center or even the storage areas, the undisturbed buffer zone is not an integral and inseparable part of the airport facility. It simply serves to insulate the airport from the surrounding land. If the appellee is ever deprived of the beneficial use of some of its remaining property due to overflights, it will be entitled to make a claim for inverse condemnation. Again, the court in Boyd v. United States made this clear:

It must be remembered in this connection that any subsequent operation of the field in such a manner as to cause appellants’ remainder to be subjected to flights of aircraft over it, so low and frequent as to constitute a direct and immediate interference with their enjoyment and use thereof, would itself give rise to a wholly independent right of compensation for the appropriation of an easement as to the remainder. See United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 206 [1206]. The present condemnation does not cover any such possible, subsequent and additional taking.

222 F.2d at 496. Moreover, the appellee may be entitled to additional compensation if the county ever departs from the proposed plan and endeavors to use the taken land for purposes other than a buffer zone. State Department of Transportation v. Decker, 408 So.2d 1056 (Fla. 2d DCA 1981).

We reverse the judgment to the extent of the award of severance damages and remand the case for a new trial on this issue. Since the award of attorney’s fees was predicated in part upon the successful prosecution of the claim for severance damages, we also reverse the judgment of attorney’s fees and remand for the setting of a new fee. Otherwise, the judgment is affirmed.

OTT and RYDER, JJ., concur.


author: ORFINGER, Judge.

text:
    DAYTONA MIGI CORPORATION, etc., Appellant, v. DAYTONA AUTOMOTIVE FIBERGLASS INC., etc., Appellee.
    No. 82-304.
    District Court of Appeal of Florida, Fifth District.
    June 2, 1982.
    Rehearing Denied July 27, 1982.

      Henry C. Anderson, pro se.
    J. Doyle Tumbleson of Kinsey, Vincent, Pyle, Williams & Tumbleson, Daytona Beach, for appellee.
   ON MOTION TO DISMISS APPEAL

ORFINGER, Judge.

Following the remand of this case to the trial court after an earlier appeal, the trial court, in compliance with the mandate of this court, reconsidered the matter of damages and on December 16, 1981, entered a final judgment from which appellant takes this appeal.

On January 14, 1982, the trial court entered an order denying appellant’s motion for rehearing. This order also denied appellant’s motion for suggestion of disqualification, and taxed costs in favor of appel-lee. On January 29, 1982, the trial court entered an amended order, identical in every respect to the order of January 14,1982, except that paragraph 2 read: “Plaintiff’s motion for rehearing is denied.” Appellee moves to dismiss the appeal on two grounds: (1) that the notice of appeal was untimely, in that it was filed more than thirty days from rendition of the final judgment appealed from; and (2) even if timely, a notice of appeal is ineffective when signed only by an officer of a corporate appellant, not an attorney, and no attorney has signed the notice. We conclude that for either reason, the appeal should be dismissed.

Appellant is correct that the notice of appeal was timely if the time for filing began to run on January 29,1982, when the amended order was entered. However, the amendment or modification of an order in an immaterial way does not delay the time for seeking review. St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971). The time for taking an appeal is tolled only if the second order changes matters of substance or resolves a genuine ambiguity. B. G. Leasing, Inc. v. Heider, 372 So.2d 184 (Fla. 3d DCA 1979). The test is whether the court in the second order has disturbed or revised legal rights and obligations which had been settled with finality in the original order. Id; cf. Salinger v. Salinger, 100 So.2d 393 (Fla.1958) [trial court order amending final decree, per stipulation of the parties, to provide for a different effective date did not suspend rendition of the original order and postpone the time for taking appeal].

We note no substantive change between the order of January 14 and the amended order of January 29. In both, the petition for rehearing was denied. Neither does appellant point to any such change. Thus, the amended order did not extend the time for filing an appeal and final judgment was “rendered” when the motion for rehearing was disposed of by the order of January 14. The notice of appeal filed March 1, 1982, was too late.

Because the notice of appeal was signed by a corporate officer who is not an attorney, the notice of appeal would be dismissed in any event. A corporation must be represented in court by an attorney and may not be represented by a corporate officer. Quinn v. Housing Authority of Orlando, 385 So.2d 1167 (Fla. 5th DCA 1980); Southeastern Associates, Inc. v. First Georgia Bank, 362 So.2d 967 (Fla. 1st DCA 1978); Angelini v. Mobile Home Village, Inc., 310 So.2d 776 (Fla. 1st DCA 1975). In Nicholson Supply Co., Inc. v. First Federal Savings & Loan Assoc. of Hardee County, 184 So.2d 438 (Fla. 2d DCA 1966), the court denied a petition to amend the complaint for foreclosure of a lien to include an attorney’s signature after the time for foreclosure had run, holding the original complaint to be a nullity.

A corporation, unlike an individual, may not appear in court “in proper person” and represent itself. Neither may a pleading be signed by a corporate officer who is not a licensed attorney at law. Thus, any pleading purporting to be signed by such corporate officer is a nullity and has no effect. Nicholson, 184 So.2d at 442.

The motion to dismiss is GRANTED and the appeal is DISMISSED.

DAUKSCH, C.J., and SHARP, J„ concur.

      . See Daytona Migi of Jacksonville, Inc. v. Day-tona Automotive Fiberglass, Inc., 388 So.2d 228 (Fla. 5th DCA 1980).

      . The precise language was:

      “2. Plaintiffs Motion for Corrected Order, Rehearing and Explicit Finding of Fact is denied.”

      . The thirtieth day fell on February 28, 1982, a Sunday, and the notice was filed March 1, 1982, the next day.


text:
    Joe W. CUNNINGHAM, as Personal Representative of the Estate of Robert Wayne Cunningham, a deceased minor, Appellant, v. LASH, INC., d/b/a Perrine Pub, Appellee.
    No. 81-1169.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Rehearing Denied Aug. 11, 1982.
    Hoffman & Hertzig and Carl H. Hoffman, Coral Gables, for appellant.
    Whitman, Wolfe & Gross and John W. Salmon, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Lonestar Florida, Inc. v. Cooper, 408 So.2d 758 (Fla. 4th DCA 1982).


text:
    Anthony D. BAUZA, Appellant, v. STATE of Florida, Appellee.
    No. 81-559.
    District Court of Appeal of Florida, Second District.
    June 30, 1982.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon the State’s motion for rehearing, our earlier opinion is vacated and the following decision is substituted in its stead:

Due to apparent misunderstandings by the parties and the trial court concerning the plea bargain arrangement, we REVERSE the judgment and sentence and REMAND with directions to allow the appellant to withdraw his nolo contendere plea on Count II and the State to reinstate Count I and proceed on both counts.

HOBSON, A. C. J., and GRIMES and SCHOONOVER, JJ., concur.