text:
    Betty J. SANDERS v. STATE.
    5 Div. 522.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Michael A. Sundock, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of her husband, Ray Sanders. Sentence was life imprisonment as required by Alabama Code 1975, Section 13-1-74.

I

The major issue presented by this appeal is the sufficiency of the evidence to sustain and support the conviction. The defendant contends that a first degree murder was not shown and was not proved by either the facts or the evidence in this case. Specifically, the defendant contends that there was no evidence of deliberation, premeditation, willfulness or malice.

The evidence presented by the State reveals that Ray Sanders was killed by a single shotgun blast to the chest on the night of November 26, 1979, at his home.

When thirteen year old Robert Sanders went to bed that evening, the only other people in the house were his mother and his father. Robert’s mother, the defendant, had been drinking “a lot”. Mr. Sanders and the defendant had had an argument that evening over some long distance telephone calls made by the defendant. Robert testified that he heard his father say that “if he wasn’t dead in the morning, he was going to have that telephone took out and took into town.”

Later, Robert went to bed but was awakened by the defendant who was calling his name and crying. Robert got up, went into the living room and saw the defendant sitting down beside his father, crying. His father had been shot. Ray Sanders’ shotgun was behind the front door where it was usually kept. There was no one else in the house and Robert had not heard any shot.

The police arrived within a short time. Robert stated that if his mother called the police she must have done it before he got up because he did not remember her using the telephone after she awakened him.

A paraffin test of the hands of the defendant for the presence of gunpowder residue was inconclusive. A blood alcohol analysis of the defendant’s blood conducted approximately one and one-half hours after the approximate time of the shooting revealed an alcohol level of .23.

No buckshot was found anywhere in the room where the deceased was shot indicating that all the shot entered the deceased.

The defendant voluntarily gave a statement to the investigating officers in which she claimed that a young black forced his way into her house looking for her husband. She grabbed the shotgun from behind the door and pointed it at the man who pulled it away from her — cutting her hand and cocking the shotgun in the process. The man then pushed the defendant out of the way and “let Ray have it.” “The black man was standing by the corner of the living room hall by the heater when he did it and Ray was still laying down asleep with his head facing the t.v.”

Detective Keith Kolander was in charge of the investigation. He testified that the information the defendant gave him was inconsistent with what his investigation revealed: “(W)hat Mrs. Sanders told me in the statement was different from what the toxicologist told me as far as the entrance wounds on the body.” The toxicologist told him that it “couldn’t have happened that way.”

The toxicologist’s report indicated that it was “a straight-in shot.” The toxicologist testified that his findings were inconsistent with the statement given by the defendant.

An examination of the shotgun revealed that it was a single shot 16-gauge shotgun. The shell in the weapon would not properly eject and had to be removed by “jamming it out from the other end with a bar.” The results of tests revealed that the shotgun had to have been fired somewhere from two to five feet from Mr. Sanders.

The fact that the toxicologist could not positively testify when the shotgun was last fired and that the pellets found in the body of Ray Sanders were fired from that same shotgun are not significant in view of the fact that the defendant, in her written statement, admitted that it was the murder weapon. At trial, this was never a disputed fact.

No alcohol was found in the blood of the deceased.

The essential elements of murder in the first degree are that the killing must have been willful, deliberate, premeditated and malicious. Cosby v. State, 269 Ala. 501, 114 So.2d 250 (1959).

A positive intent to kill is an essential element of murder in the first degree. Jackson v. State, 239 Ala. 38, 193 So. 417 (1940). “Premeditation” and “deliberation” are synonymous terms, which, as elements of first degree murder, mean simply that the accused, before he committed the fatal act, intended that he would commit the act at the time that he did, and that death would be the result of the act. White v. State, 236 Ala. 124, 181 So. 109 (1938); Dunn v. State, 143 Ala. 67, 39 So. 147 (1905). Malice, as the term is used in defining murder, is the intent to take human life without legal excuse, justification or mitigation. Walker v. State, 339 So.2d 155 (Ala.Cr.App.1976). These elements or mental states do not require reflection for any appreciable length of time, but are sufficient if they co-exist only for a moment at the instant of time the slayer is pressing the trigger to fire the fatal shot. Caldwell v. State, 203 Ala. 412, 84 So. 272 (1919); Miller v. State, 54 Ala. 155 (1875). All of these qualities may be grouped under the phrase “formed design” and if this formed design existed in the mind of the defendant for but one moment before the homicide, that, in law, would be sufficient. Seams v. State, 84 Ala. 410, 4 So. 521 (1887).

Each of the elements of first degree murder need not be proved by direct, positive and independent evidence but may be established by circumstantial evidence. Hall v. State, 40 Ala. 698 (1867); Dolvin v. State, Ala. 391 So.2d 133 (1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied, 295 Ala. 426, 324 So.2d 333 (1975).

Each of these elements may be proven from the circumstances surrounding the killing. Where a party without necessity kills another with a deadly weapon, under the law, in the absence of proof to show that it was accidental, the implication is that the act was voluntarily done. Oliver v. State, 17 Ala. 587 (1850).

“Deliberation and premeditation, intent to kill, and other elements of murder in the first degree may be shown, like other facts, either by direct proof, or by circumstances from which there existence may be inferred. No rule can be laid down as to the character or amount of proof necessary to show deliberation and premeditation; each case must depend upon its own facts. A premeditated design to kill may be inferred from the facts. And that a malicious killing was murder in the first degree may be shown by circumstantial evidence. The question is one for the jury to determine upon a consideration of all the surrounding circumstances tending to show the relations of the parties to each other, and the animus of the accused toward the deceased. Premeditation or other elements of murder in the first degree will not be inferred, however, from the bare fact of killing. Their existence may be inferred from the circumstances, but not presumed; in this sense the words ‘inferred’ and ‘presumed’ are not synonymous. Intent to kill and other characteristics of murder in the first degree are matters of fact which cannot be implied as matters of law, but may be inferred from the nature of the weapon used, or from acts of malice which, in the usual course of things, would cause death, or great bodily harm. And in arriving at the intention regard should be had to what transpired at the time of the killing, as well as to what transpired before and after that time.”
F. Wharton, The Law of Homicide, Section 150 (3rd ed. 1907).

The existence of the necessary elements of murder in the first degree may be inferred from the circumstances and character of the act of killing itself, in the absence of surrounding circumstances clearly repelling the idea.

“Where the intent to kill appears from the circumstances preceding or connected with the homicide there can be no question of implied malice. And it has been held that an act the natural consequence of which is death, when unexplained, is evidence in itself of the preconceived intention and deliberation necessary to constitute murder in the first degree.”
Wharton, Section 151.

The deliberate use of a deadly weapon may create an inference of first degree murder.

“The unjustifiable, intentional, and deliberate use of a deadly weapon, or a use of such weapon from which death would be liable to result, gives rise to an inference of the deliberate and premeditated intent to take life necessary to make a resultant killing murder in the first degree. And this is so notwithstanding the fact that no motive appears; and the necessity rests with the slayer of showing extenuating circumstances. But the use of the deadly weapon must have been deliberate; the mere use, with nothing more, raises an inference of malice only; to raise an inference of premeditation, deliberation and premeditation must appear in the manner of the use.”
Wharton, Section 152.

These propositions are supported by Alabama law. See also Brown v. State, 142 Ala. 287, 38 So. 268 (1904); Kemp v. State, 278 Ala. 637, 179 So.2d 762 (1965); Coates v. State, 253 Ala. 290, 45 So.2d 35 (1950); Ex parte Bayne, 375 So.2d 1239 (Ala.1979); Hardin v. State, 344 So.2d 234 (Ala.Cr.App.1977); Brown v. State, 109 Ala. 70, 20 So. 103 (1896).

In reviewing the facts and the legitimate inferences arising therefrom, we find that there was sufficient evidence from which the jury could have excluded every reasonable hypothesis except that of guilty beyond a reasonable doubt. Cumbo, supra. In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. We must consider the evidence in the light most favorable to the prosecution. Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979).

The jury was authorized to consider the relationship of the defendant and the deceased and the existing state of that relationship as shown by the statement made by the deceased and their recent argument. Reeves v. State, 201 Ala. 45, 77 So. 339 (1817); Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert. denied, 289 Ala. 749, 269 So.2d 154 (1972). The jury was also authorized in finding that the defendant gave a false statement or explanation of the homicide, as proof of circumstantial evidence inconsistent with statements of the accused may show the falseness of the defendant’s statements. 0. Warren, 3 Homicide, Section 275 (1938). The jury would be justified in concluding that the defendant returned the shotgun to its usual location after shooting her husband and that she called the police before waking her son — facts that could support a finding that the defendant acted with deliberation.

In conclusion, after a careful review of all the evidence, we find that the question of whether the defendant was guilty of first degree murder was an issue which only the jury was authorized to make. We will not disturb their verdict.

II

Although the defendant argues that her motion for new trial on the ground of newly discovered evidence should have been granted, it is without dispute that the existence of this “newly discovered evidence” was first discovered by the defendant or her counsel early in the trial and was available for the defendant’s use in the presentation of her case. For this reason, the motion for new trial was properly denied. Jarrell v. State, 355 So.2d 747 (Ala.Cr.App.1978).

We have carefully searched the record for error prejudicial to the defendant and finding none affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Danny Earl COOPER v. STATE.
    4 Div. 828.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Timothy B. Loggins, Opp, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

Appellant was convicted and sentenced to imprisonment for five years under an indictment charging him with buying, receiving, concealing or aiding in concealing “one (1) 1977 Chevrolet automobile engine” of the “value of, to-wit: $500.00, the personal property of Parker Holloway knowing that the same had been stolen or having reasonable grounds for believing that the same had been stolen, and not having the intent to restore it to the owner.” The crime charged pertained to conduct prior to 1980, before the effective date of the now effective Criminal Code of 1977, and was governed by the Code of 1975. Section 13-3 • 55 thereof proscribes the offense and § 13 3-50 prescribes the punishment of “not less than one nor more than 10 years.”

Appellant does not contend that the evidence was not sufficient to present a jury issue, except in one particular that we will immediately address. Any discussion of the evidence other than that which follows seems uninvited and unnecessary.

Appellant says there was a fatal variance “between the indictment and proof as to the identity of the 1977 Chevrolet automobile engine.” It is not clear that the claim of variance is with reference to the ownership, on the one hand, or the description on the other, of the property, or both. We will consider both.

The evidence shows that Parker Holloway owned a 1977 Chevrolet pickup truck. The truck was stolen from him in Atlanta, Georgia, in August 1979. He located it about a week later in a junk yard near Atlanta. The motor had been taken out of it.

Some time after August 1979, Willie Ray Elmore and defendant traded motor vehicles at defendant’s home in Covington County, Alabama. The motor vehicle which Elmore received in the trade with defendant was thereafter traded by Elmore to Tim Reeves, which transaction also occurred in Covington County.

Elmore testified that from the time he received the motor vehicle from defendant in the trade with him until the time Elmore traded it to Reeves, it had the same engine in it. Reeves testified that such automobile had the same engine in it from the time he received it from Elmore in their trade until the time late in the same year when the motor was turned over to law enforcement authorities. Reeves testified also that prior thereto, while the particular automobile was in a garage in Covington County and while he and defendant were present in the garage, there was a conversation between him and the defendant as to the engine that was in the automobile. Following is a pertinent part of his testimony:

“Q. What did he tell you about that engine?

• “A. He told me that the motor was stolen.
“Q. Stolen from where?
“A. Atlanta.
“Q. Did he tell you what it was taken out of?
“A. A Chevrolet pickup.”

The defendant testified that the motor vehicle that Elmore had received from the defendant in the trade between them had been previously owned by defendant while he was employed in a transmission shop in Atlanta, that he sold it to Ronnie Jo Smith, that Smith sold it back to defendant and that thereafter defendant returned to Cov-ington County, Alabama, and kept it until he traded it to Elmore. He further testified that while Smith owned it “he had put a rebuilt block assembly in it,” which “looks like a brand new engine sitting in a car.” He denied knowing that the engine was stolen and denied telling Reeves that it was taken out of a Chevrolet pickup.

There was no variance between the indictment and the evidence as to the description of the property stolen.

There was evidence that said motor vehicle engine that was turned over to the officers by Mr. Reeves had the following number thereon: C7F308902. A copy of a Georgia Certificate of Title that Mr. Holloway testified was the Certificate of Title to the pickup truck that was stolen was introduced in evidence. It shows a “MANUFACTURER’S ID NO. CCL147F30 8902,” which according to the evidence corresponds with the engine number stated. According to such evidence, there was no variance between the indictment and the evidence as to the ownership of the engine.

The only other contention of appellant is that the trial court erred in admitting in evidence the copy of the Certificate of Title to the motor vehicle owned by Mr. Holloway at the time the motor or engine was stolen from it. The reference is to State’s Exhibit No. 10, a copy of which exhibit is a part of the record before us. The ruling of the court and its pertinent context are as follows:

“Q. Mr. Holloway, at the time you purchased the truck there in Georgia, did you receive a copy of the Certificate of Title from the State of Georgia?

“A. Yes, sir.
“Q. And, where did you put it along with the other papers of the truck?
“A. It was in the glove box of the truck
“Q. And, when you went to see the truck some weeks after it was stolen, did you recover any of those items out of the glove box?
“A. No, sir.
“Q. What happened to them?
“A. They were burned up.
“Q. All right, sir. I want to show you here a photostat of a State of Georgia Certificate of Title showing the owner as a Parker J. Holloway and ask you if that is a copy of the Title Certificate when you bought your truck?
“A. Yes, sir.
“MR. McGILL: We offer it in evidence at this time, the Title Certificate, a copy of the Title Certificate.
“MR. LOGGINS: Your Honor, we object on the ground that it is not the original and it is not certified and it is not offered by the preparer of the document.
“THE COURT: Overruled.
“MR. LOGGINS: We except.
“(At which time, the document was marked and received into evidence as State’s Exhibit Number Ten).”

On cross-examination, the witness said that the document came from the insurance company that settled with him for the theft, that it was “a copy of the original.” It is obvious that the record we have contains a photocopy and not the original of State’s Exhibit 10. Whether State’s Exhibit 10 is actually an original document, we cannot tell without seeing and perhaps feeling the surface of it. That it is possibly a duplicate original issued to two parties is indicated, as the name and address of the owner and that of the lienholder are typed thereon. It is not necessary for us to determine whether it is a single original, a duplicate original, or a mere copy. It is not a copy of a public record. By this we do not mean that there is or was no public record of the facts shown by the certificate, but the certificate itself is not shown or claimed to be part of a public record. The ground of defendant’s objection that the exhibit was “not the original,” on the apparent theory that it was a copy merely of the original that had been in the glove compartment of the motor vehicle, which had been destroyed, is not an obstacle to its admissibility in evidence as proper secondary evidence of the contents of an original. Reiling v. State, Ala.Cr.App. 339 So.2d 115, 116 (1976). See also, Gamble, McElroy’s Alabama Evidence, § 214.01 (1977). The trial court was not in error in overruling defendant’s objection to State’s Exhibit 10 on any of the grounds asserted.

We have considered all of appellant’s contentions for a reversal and have searched the record for error prejudicial to defendant. We find no such error and that the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    James Rufus McCOY v. STATE.
    5 Div. 537.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    R. D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Violation of the Alabama Uniform Controlled Substances Act. Sentence: five years on each of two convictions.

The sole issue raised by appellant is that his guilty pleas were involuntary because they were based upon his belief that he would be given two concurrent, rather than two consecutive, five-year sentences.

The record reveals that the trial judge explained to the appellant his privilege against self-incrimination, his right to a trial by jury, his right to confront his accusers, the maximum and minimum sentences possible, the nature of the charges, and the acts sufficient to constitute the offense as per the requirements of Boykin v. Alabama, 39 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. The court, however, did not apprise the appellant of the fact that the trial judge was not bound by any sentencing agreement reached between the district attorney and appellant’s counsel.

The record reveals that, at the time of sentencing, counsel informed the court of a plea bargain agreement with the State, in which appellant would receive two five-year concurrent sentences. The record also reveals that the trial judge denied the request for concurrent sentences and meted out consecutive terms to appellant.

Although the trial court is not bound by any agreement struck between the prosecutor and defense counsel, English v. State, 56 Ala.App. 704, 325 So.2d 211, we believe that, because the trial court may decide not to carry out the agreement reached between the two lawyers, better practice suggests that the court inform the accused that any agreement between the attorneys is non-binding on the court. The accused will then be effectively afforded the opportunity to confer further with his attorney and to withdraw his guilty plea if he chooses. See Griswold v. City of Enterprise, 384 So.2d 1219 (Ala.Cr.App.1980).

In the case at bar, appellant did not object or move to withdraw the guilty pleas after the sentences were pronounced by the court. Consequently, there is no adverse action by the trial court for this court to review. Compare Griswold, supra.

It is our judgment that the convictions and sentences by the Coosa Circuit Court be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Lasalle MINNIFIELD v. STATE.
    6 Div. 305.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Gerry E. Adams, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Asst. Attys. Gen., for appellee.
   CLARK, Retired Circuit Judge.

A jury found appellant guilty of rape. The court fixed his punishment at imprisonment for life and sentenced him accordingly-

The alleged victim of the rape testified that at about 10:30 P.M., Friday, June 22, 1979, she and a female companion were walking from a “convenience store” toward the victim’s apartment when they noticed a man following them. According to her further testimony, as the two females reached the victim’s apartment steps the man asked them if they had any money. The victim let him have three dollars and some change, and her companion let him have her billfold. Immediately thereafter the man pulled a pistol and told them to walk to the corner to an automobile about half a block down the street, a street in the southwest section of Birmingham known as West End. He told them to get in the automobile, to lie down therein and keep their eyes closed. He then drove the automobile a short distance, past some apartments, near a dumpster and there stopped the automobile, raped one of the two women and then raped the other. He then drove the automobile with the two women in it to an unidentified apartment which the three entered. He then raped each of the women again in a bed in the apartment. Thereafter, he returned them to the apartment from which he had brought them.

The alleged victim was the only person who testified as to the facts of the alleged crime. We are not apprised by the evidence of what happened to the other victim.

Appellant’s attorney argues with commendable vigor that the evidence was too weak to sustain a conviction for rape. He bases his argument largely on the fact that there was little resistance by the alleged victim or the other victim, the delay upon the part of the alleged victim in reporting the crime, inability of the alleged victim to present medical evidence of rape, the failure of the other victim to claim or report that she had been raped, and the generally recognized caveat as to the testimony of a witness identifying as the criminal a person she did not know and whom she had never before seen. Appellant does not contend that there was no substantial evidence of defendant’s guilt. The victim was positive in her identification of defendant. Her explanation for her failure to resist violently defendant’s aggressive conduct was her unrelenting fear of him during the entire time that he was with her; four or five hours intervened between. his stopping her and her companion at the steps of the alleged victim’s apartment and his return of them to the apartment. The alleged victim explained her failure to report the incident by her continued fear of defendant, which was emphasized by the express or implied threats he had made to her and the other victim.

Irrespective of the strong argument of counsel for appellant as to the claimed weakness of the evidence against defendant, an appellate court is not the proper forum to pass upon the merits of such an issue unless that issue has been first raised and determined in the trial court. What we have said is sufficient to show that there was substantial evidence of defendant’s guilt, which of itself presented a jury issue and which justified the trial court in overruling defendant’s motion to exclude the evidence. We need say no more on the particular point, but we observe that the shocking nature of the evidence as to what actually occurred, the singularity of the plurality of four rapes by the same man on the same night and the entire circumstances seem “incredible,” as that word is often used, but they are not sufficient to convince us that the jury was not justifiably convinced beyond a reasonable doubt of the guilt of defendant or that its verdict was wrong or unjust. There is no contention that the verdict could have been influenced by any possible ethnic difference between the defendant and either victim. The evidence indicates that there is none. We make no effort to determine at this time whether defendant was tried and convicted for the rape of the alleged victim that the evidence shows occurred in the automobile or for the rape that occurred, according to the evidence, in the apartment. We deem it better, as counsel for the parties have done, to leave that subject without further comment.

Appellant attempts to find a valid ground for urging that the judgment should be reversed in the action of the trial court in overruling a motion by defendant for a mistrial as to an incident that occurred when the alleged victim of the crime left the witness stand. The motion was first presented by defendant’s counsel just after the witness who succeeded the victim as a witness had been called to the stand and had been sworn. The following then occurred:

“MR. ADAMS: Your Honor, before the State takes this witness, at this time, I would like to make a motion for a mistrial because of the conditions.
“THE COURT: Overruled.”

The witness who followed the victim as a witness was Officer Burroughs. When her testimony was finished, counsel for defendant made it known to the court that he would like to present again the motion for a mistrial and to amplify the record as to what occurred. By agreement of all concerned, an in camera hearing was then conducted, at which the following occurred:

“MR. ADAMS: Your Honor, at this time I would like to make a motion that the Court Reporter could show that prior to Officer Burroughs testifying, at the time that I made my motion for a mistrial, that there was audible sobbing, hysterical crying from Miss Hunter [the alleged victim]. It was extremely audible, in the presence of the jury. At that time I made a motion for a mistrial and it was denied.
“THE COURT: All right. The witness, at the end of the testimony, had a little difficulty holding up. You could tell she was crying. And when she left the stand she did cry and you could hear it outside the room.
“But, I don’t think the type was sufficient enough to cause any mistrial.
“Any witness under such a situation is going through a trauma after testifying. I think she held up as long as she could. And outside the room, she broke down. I would overrule.
“MR. ADAMS: Thank you, Your Honor.
“MR. CAHILL: We would like the record to reflect also that this situation came in response to questions asked by the defense attorney, which were objected to very strenuously by the State. And any crying by the witness was brought on by the actions of the defense.
“THE COURT: The defense attorney was asking proper questions, he was representing his client in trying to give good and thorough cross-examination. It was perfectly proper.
“MR. ADAMS: Thank you, Judge Nice.”

The trial court handled the untoward but not unprecedented occurrence with commendable sagacity, fairness and courtesy to all concerned. Furthermore:

“The granting or denying of a motion for mistrial is within the sound discretion of the trial judge because he is in a much better position to determine what effect, if any, some occurrence may have had upon the jury’s ability to decide the defendant’s fate fairly and justly. This is particularly true where a disturbance at the trial is not completely incorporated into the record as in the present case. We will not interfere with the trial judge unless there has been a clear abuse of his discretion. . . . ” Perry v. State, Ala.Cr.App., 368 So.2d 305 (1978), rev’d on other grounds, 368 So.2d 310 (1979).

The following written charges requested by defendant were refused:

“Testimony tending to prove identity is to be scrutinized with extreme care.
“No class of testimony is more uncertain and less to be relied upon than that of identity.
“The possibility of human error or mistake, and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony as to identity. You must carefully consider these factors passing upon the credibility that you attach to the witness’s testimony, and you must be satisfied beyond a reasonable doubt as to the accuracy of the witness’s identification of the defendant.
“The identity of the defendant as the culprit must be shown with such certainty as to preclude any possibility of error.
“The identity of the defendant must be proven with that degree of moral certainty that amounts to prove beyond a reasonable doubt so as to preclude any probability of a mistake having been made.”

We find nothing in any of the authorities cited by appellant that will support his contention that each or any of such charges should have been given. We have found no authority to that effect. In our opinion, each of them was properly refused.

We have considered all of appellant’s contentions for a reversal and have searched the record for error prejudicial to defendant. We find no such error and conclude that the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: OVERTON, Justice.

text:
    PINELLAS COUNTY DEPARTMENT OF CONSUMER AFFAIRS, Appellant, v. Michael F. CASTLE, Castle Construction Company and Mike Castle Corporation, Appellees.
    No. 54452.
    Supreme Court of Florida.
    Sept. 25, 1980.
    Rehearing Denied Feb. 20, 1981.
    Robert G. Varner, Jr., Asst. County Atty., Clearwater, for appellant.
    John L. Riley, St. Petersburg, for appel-lees.
    Jim Smith, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., Miami, for the State of Florida, Dept, of Legal Affairs, amicus curiae.
   OVERTON, Justice.

This is an appeal from a final judgment of the circuit court holding unconstitutional a special act, chapter 76-471, Laws of Florida, as amended by chapter 77 -639, creating the Uniform Consumer Protection Act of Pinellas County. We have jurisdiction. We find the act constitutional and reverse.

The appellee Castle was charged with various acts constituting unfair and deceptive trade practices by the Pinellas County Consumer Affairs Office under the authority of the subject special act. Castle thereupon filed a declaratory judgment action in circuit court, seeking to have the special act creating the Uniform Consumer Protection Act of Pinellas County declared unconstitutional.

The trial court, in declaring the consumer protection act of Pinellas County unconstitutional, found that (1) the Pinellas County special act was unenforceable because it was in conflict with the general law providing for statewide consumer protection, specifically Florida’s Deceptive and Unfair Trade Practices Law, chapter 501, Florida Statutes (1977); (2) the special act denied sufficient access to the courts and due process of law; (3) the act denied equal protection since it applied only to citizens in a limited geographic area; and (4) the special act was an unlawful delegation of legislative authority.

In 1973 the Florida Legislature enacted the Florida Deceptive and Unfair Trade Practices Act, known as Florida’s Little FTC Act, to apply statewide as set forth in chapter 501, Florida Statutes (1977). The appel-lee Castle, in asserting the unconstitutionality of the Pinellas County special act, cites a number of differences between it and the Little FTC Act. It is contended that because the special act provisions are inconsistent and irreconcilable with those of the general act, the general act prevails and the special act must be stricken.

Although one of the purposes of the “Little FTC Act” was to simplify and clarify the law governing consumer sales practices, it was not intended to preempt local consumer protection laws or ordinances. Specifically, section 501.213 of the Little FTC Act provides:

(1) The remedies of this part are in addition to remedies otherwise available for the same conduct under state or local law.
(2) This part is supplemental to, and makes no attempt to preempt, local consumer protection ordinances not inconsistent with this part.

[Emphasis supplied.]

We find that the inconsistencies alleged are without merit. The Pinellas County consumer protection act does not adversely affect the Florida Little FTC Act. When read together, the acts can be harmonized to accomplish the legislative purpose of consumer protection.

Principal among those inconsistencies found by the trial court to require the special act to be declared invalid were the provisions providing access to the courts. The Little FTC Act grants the enforcing authority, the Department of Legal Affairs, the power to issue cease-and-desist orders. It provides for direct review of such orders by the district courts of appeal in accordance with the Florida Administrative Procedure Act. § 120.68, Fla.Stat. (1977). Further, under the Little FTC Act a party has the right to stay the administrative proceeding and have it removed to the circuit court for trial. § 501.2091, Fla.Stat. (1977).

In contrast, the special act provides for review by common law certiorari in the circuit court. There is no provision for removal of the proceeding to the circuit court. Appellees contend that the special act thus denies access to the courts to those parties within its purview.

The special act expressly states that the Pinellas board can enforce its decisions only by filing an action for a declaratory judgment in the circuit court. Any final action under the special act can thus arise only after hearing in the circuit court. Parties cited under the special act are thus provided with two means of access to eourts-the declaratory judgment action and common law certiorari. This means of access to the courts is sufficient to withstand constitutional attack.

Both the special act and general act provide a means for court access and judicial review; the presence of distinct methods of review is not fatal to the special act. Cer-tiorari review comports with constitutional due process and court access requirements. Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976); Scholastic Systems, Inc. v. Leloup, 307 So.2d 166 (Fla.1974).

The trial court also found, consistent with the appellees’ allegations, that the act was unconstitutional on equal protection grounds because it unfairly singled out Pi-nellas citizens from the state population and subjected this limited class to the Pinel-las act. If adopted, this argument would substantially restrict special laws and city or county ordinances, which in turn would severely hamper the power of local governments to govern. County and city ordinances necessarily apply only to citizens within a limited geographic area of the state. So long as this Pinellas County consumer protection act applies equally to all persons in Pinellas County, then the equal protection clause is satisfied. Pinellas County Veterinary Medical Society, Inc. v. Chapman, 224 So.2d 307 (Fla.1969).

Finally, appellees contend that the act is unconstitutional because the legislature has provided insufficient guidelines in defining the conduct proscribed by the act and has further failed to describe the method of operation under the act. This unlawful delegation assault upon the special act is virtually identical to the unsuccessful challenge raised against the Little FTC Act in Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976), a decision which we recently reaffirmed in Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978). We find there are adequate standards limiting the discretion of the Pinellas County Department of Consumer Affairs under the provisions of the act.

We find that the legislature, in enacting the Little FTC Act, foresaw the passage of supplementary local consumer legislation or ordinances. Chapter 76 471, as amended by chapter 77 639, creating the Pinellas County Department of Consumer Affairs, is valid supplementing legislation. We reverse the order of the trial court holding this special act unconstitutional.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla.Const. (1972).


author: ALDERMAN, Justice.

text:
    AMERICAN BERYLLIUM COMPANY and Employers Insurance of Wausau, Petitioners, v. Lynn W. STRINGER, Respondent.
    No. 57134.
    Supreme Court of Florida.
    Oct. 30, 1980.
    As Corrected on Denial of Rehearing Feb. 19, 1981.

      W. Robert Mann and David Paul Montgomery of Mann & Fay, Bradenton, for petitioners.
    Richard A. Bokor, Tampa, for respondent.
   ALDERMAN, Justice.

We accept jurisdiction in this case to review an order of the Industrial Relations Commission. The Commission, reversing an order of the judge of industrial claims, held that respondent Stringer’s claim was not barred by the statute of limitations and directed that, on remand, the company not be permitted to offer evidence on its statute of limitations defense. We affirm in part and reverse in part.

Stringer last worked for American Beryllium in 1970. In July, 1977, the upper lobe of his left lung was removed. On December 2, 1977, he filed a claim for compensation against American Beryllium, alleging his illness was caused by exposure to beryllium dust during his employment with that company.

At the pretrial hearing, the judge noted a possible statute of limitations problem. Stringer’s position was that the illness was quiescent, and thus the statute of limitations did not begin to run until the claimant should have known of the illness, in this case, 1977. Upon stipulation of the parties, the statute of limitations defense was presented to the judge for determination. The judge ruled that "[assuming arguendo that the claimant did in fact contract a dust disease or beryllium dust disease while in the employ of the employer and assuming further that this dust disease was quiescent or undetected until July of 1977, the fact of quiescence or failure to detect does not toll the running of the Statute of Limitations applicable to Florida Workmen’s Compensation cases.”

The Industrial Relations Commission reversed the judge, holding that in occupational disease cases the date of disability commences the running of the statute of limitations. Disputing this holding, the company contends that under section 440.-02(18), Florida Statutes, Stringer’s claim should have been filed within two years of the time of injury, and, defining time of injury as the occurrence of the accident resulting in the injury, it argues that Stringer’s injury could not have occurred later than the last date of employment with it. On this issue, we affirm the Commission’s order.

This case is an occupational disease case and is governed by the occupational disease section of the workmen’s compensation statute. An occupational disease, according to section 440.151(2), Florida Statutes (1969), is “a disease which is due to causes and conditions which are characteristic of and peculiar to” a particular employment. An employee of such an occupation becomes disabled when he becomes “actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease.” Section 440.151(3), Florida Statutes (1969). “[T]he disablement or death of an employee resulting from an occupational disease .. . shall be treated as the happening of an injury by accident . . . .” Section 440.151(1), Florida Statutes (1969). In occupational disease cases, therefore, it is the disability and not the disease which determines the compensability of a claim. See also Conner v. Riner Plastering Co., 131 So.2d 465 (Fla.1961).

The second issue is whether the Commission erred in holding that on remand the company is barred from offering evidence on its statute of limitations defense. This defense necessarily rests on establishing the date of disability. On this issue the judge had before him only the .stipulated last date Stringer worked for the company and the stipulated surgery date. This is not sufficient to determine the date of Stringer’s disablement, which in turn determines when the statute of limitations begins to run. We agree with the dissenting opinion of Commissioner Carroll that “[i]t cannot be assumed, in absence of a specific stipulation or evidence supporting such a fact finding, that the date of disablement from the dust disease coincided with the last injurious exposure or with the subsequent detection of the disease as opposed to occurring at some point in time later than the former but earlier than the latter.” We reverse this part of the Commission’s order and direct that, on remand, the company be given the opportunity to present evidence in support of its statute of limitations defense.

Accordingly, this case is remanded for further proceedings before the deputy commissioner (formerly referred to as the judge of industrial claims).

It is so ordered.

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

      . We have jurisdiction under article V, section 3(b)(3), Florida Constitution (1972); section 440.27, Florida Statutes (1977).


author: SUNDBERG, Chief Justice.

text:
    FRATERNAL ORDER OF POLICE, METROPOLITAN DADE COUNTY, LODGE NO. 6; Professional Police Officers Association, Inc.; Carl Gallo; and CRG Productions, Inc., a Florida Corporation, Appellants, v. DEPARTMENT OF STATE, State of Florida, and The Honorable Jessie McCrary, as Secretary of State, Appellees.
    No. 57970.
    Supreme Court of Florida.
    Nov. 6, 1980.
    Rehearing Denied Feb. 20, 1981.

      Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for ap- ■ pellants.
    Jim Smith, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellees.
   SUNDBERG, Chief Justice.

Appellants, law enforcement associations and professional fund-raisers, bring this appeal attacking the constitutionality of the “Law Enforcement Funds Act,” codified as part II, chapter 496, Florida Statutes (1979), which requires any person or group soliciting contributions on behalf of law enforcement organizations to register with the Florida Department of State and comply with the regulatory mandates of the act. The trial court upheld the act’s constitutionality except for subsections (8) and (9) of section 496.31, which the court found viola-tive of plaintiffs’ equal protection and due process rights. Direct appeal has been taken to this Court pursuant to article V, section 3(b)(1) of the Florida Constitution. We affirm.

In 1978 the Florida Legislature enacted a comprehensive act regulating “organizations” which solicit contributions for or on behalf of any association of law enforcement personnel. The definitional section of the. act, section 496.21, provides in pertinent part:

(1) “Organization” means a group or person which is or holds itself out to be soliciting contributions from the public by the use of any name of any law enforcement person, body, agency, or association after October 1, 1978. . . .
(3) “Law enforcement” means the words “police,” “policemen,” “policeman,” “sheriff,” “deputy sheriff,” or any combination of words used to indicate that a person, body, agency, or association is affiliated in any way with a person, body, agency, or association of law enforcement personnel.
(5) “Professional solicitor” means any person who, for a financial or other consideration, solicits contributions for, or on behalf of, an organization, whether such solicitation is performed personally or through his agents, servants, or employees or through agents, servants, or employees specially employed by or for an organization, who are engaged in the solicitation of contributions under the direction of such person; or a person who plans, conducts, manages, carries on, or advises an organization in connection with the solicitation of contributions; however, no agent, servant, or employee of a professional solicitor shall be deemed to be a professional solicitor. . . .

The solicitation of law enforcement funds act imposes a number of requirements upon professional solicitors. Every organization which intends to solicit contributions must first register with the Department of State and obtain a certificate of registration. § 496.24, Fla.Stat. (1979). In obtaining this certificate the soliciting organization must file a registration statement disclosing certain information prescribed in section 496.23 and in addition must post a bond for the duration of registration pursuant to section 496.24. Soliciting organizations are prohibited from engaging in practices which in general might mislead the public. The prohibited practices are enumerated in section 496.31 and bar solicitors from representing to the public for example, that registration with the Florida Department of State constitutes official endorsement, that the solicited proceeds will be used for charitable purposes if such is not the case, or that contributions are being solicited on behalf of a law enforcement organization when that organization has not authorized the solicitation. In addition, a solicitor is not permitted to use the word “charity” or “charitable” as part of its name nor to solicit funds without identifying himself as a professional solicitor. Section 496.31 also contains the provisions which were found by the trial court to be unconstitutional. These provisions, subsections (8) and (9) of section 496.31, provide:

(8) A professional solicitor’s total fee shall not be in excess of 25 percent of the gross contributions which he solicits. All fundraising costs shall be included in such gross contributions.
(9) Any organization registered and certified pursuant to this part shall not expend in excess of 25 percent of its gross contributions for fundraising costs.

Finally, the solicitation act provides criminal penalties for the violation of its provisions and for the filing of an application containing false information or for the use of solicitation funds for purposes other than those stated in the registration certificate. § 496.33, Fla.Stat. (1979).

Appellants instituted their general attack upon the constitutionality of the solicitation of law enforcement funds act by a suit for declaratory and injunctive relief. Their complaint alleges that the act violates the equal protection clauses of the Florida and United States Constitutions on the basis it arbitrarily subjects appellants to registration and licensing requirements that are not imposed on persons or organizations engaged in the same business activity (the solicitation of funds from the public) for other non-charitable organizations composed of, for example, firefighting personnel and postal workers; that the act constitutes an unlawful prior restraint on their constitutional guarantee to freedom of speech and that the solicitation act unlawfully and without due process interferes with their constitutionally protected right to pursue a lawful business.

At trial appellants offered testimony from Nelson Perry, president of the Fraternal Order of Police, Metropolitan Dade County Lodge No. 6, and former president of the Dade County Police Benevolent Association. He testified that the funds raised for the Fraternal Order of Police were used to publish a magazine entitled “Dade County PBA Bolo,” to support organizations such as Little League baseball and the Kiwanis League, to assist police officers and their families in times of financial distress because of illness or injury, to provide for police awards and generally to support law enforcement activities. Perry stated that to raise funds for his organization he found it necessary to employ professional solicitors. He said that it was impossible to employ a solicitor who would perform the services required in soliciting funds for less than 25% of the gross contributions as required under subsection 496.31(8), Florida Statutes. Typically, he said, 40% of the gross contributions go to the solicitor for his fee and fundraising costs, with 30% of the remaining gross contributions going to support the magazine and 30% for the other mentioned activities of the organization. Carl Gallo, a professional solicitor and one of the plaintiffs in this suit, testified that in his experience raising funds for police organizations or comparable firefighters or postal worker organizations, he has never been able to keep fundraising costs under 25% of the gross contributions collected as is required by subsection 496.31(9), Florida Statutes (1979). He stated that on the average the fundraising costs, including overhead, operating and possible entertainment expenses total about 60% of the gross contributions. Out of the remaining 40% net profit he would receive, depending on the agreement, up to one-half or 20% of the gross contributions with the remaining 20% of the gross going to the organization for which funds were solicited. The vice-president of CRG Enterprises, Inc., a fundraising organization and another plaintiff in this suit, corroborated Gallo’s testimony with regard to the activities and typical fee arrangement of the professional solicitor. He stated that it would be impossible for his organization to continue to solicit funds for police organizations under the new statutory 25% limit on fundraising costs. The impossibility of meeting the 25% limit was also attested to by another professional solicitor whose fundraising activities included soliciting contributions for charitable organizations. He said that although he was registered under the charitable solicitations act, part I of chapter 496, Florida Statutes, and was thus subject to a part II limitation on his fee of 25% of the gross contributions solicited, he could meet the 25% limit only with regard to special events such as dances, but could not otherwise conduct a general fundraising operation.

The state countered with testimony from Detective Arthur Trollinger who had investigated alleged misrepresentation and pressure tactics used by some solicitors in obtaining contributions for various organizations including church groups and labor unions as well as police associations. He testified that fraudulent claims were often made concerning the use of the funds and their tax deductability. Based on his investigations, he said that a frequent “sales pitch” included the suggestion that a person might be treated advantageously when stopped by a police officer if his car had a decal or sticker on it showing that he had contributed to a police organization. Glen Birchfield, a former professional solicitor, also testified for the state and described how in a typical pitch he would tell the individual solicited that the funds were being collected for the family of an officer who was killed in the line of duty. He said he was more successful in soliciting money for law enforcement organizations than for firefighter or church organizations because of the greater sympathy people feel toward police officers and because of the sticker pitch suggesting favorable treatment from the police.

The state also presented testimony from a number of individuals who had been solie-ited for contributions to various police organizations and said they were told that in return for a contribution they would receive a decal or sticker which would let the police know that they were “on their side.” On rebuttal the plaintiffs produced several police officers who testified that the complaints which they received regarding improper solicitation practices usually involved solicitors who did not represent legitimate police organizations.

In rejecting the appellants’ contentions that the law enforcement solicitations act was unconstitutional in whole, the trial court made the following analysis:

The Court finds from the evidence presented that solicitations on behalf of law enforcement organizations present a greater potential for abuse than solicitations for other organizations. Solicitation of funds on behalf of law enforcement organizations are distinguishable from other fund raising activities for the reason that they are fraught with the possibility that the individuals being solicited will be subjected to a feeling of intimidation because of the nature of the organization involved. Also, it is likely that those being solicited may believe that their contributions will bring them favors with the members of the organizations involved. Based upon this finding the Court concludes that there is a rational basis to sustain the classification in the statute in encompassing only law enforcement regulated organizations. These problems do not exist generally in regard to other solicitations. .. .
Therefore, to the extent that the enactment addresses the potential harms found above to exist, it is constitutional. A large portion of the enactment does address these problems and is, therefore, proper.

The trial court went on to say:

However, the enactment in subsections (8) and (9) of the prohibited acts section (F.S. [§] 496.31) places limitations on fees and costs to be expended by those who solicit funds on behalf of law enforcement organizations. The Court cannot find that these particular restrictions have any relationship to the problems that distinguish law enforcement organization solicitations from other solicitations. The police power of the State may be used only against the right to engage in business when the means sought to regulate are reasonably related to the potential harm and where the entity being regulated is distinguishable because of that potential harm. See: State v. Leone, 118 So.2d 781 (Fla.1960). If the placement of limitations on fees and costs to be expended in soliciting funds is a proper legislative enactment there is nothing in the evidence presented that makes that need unique to the solicitation of contributors for law enforcement organizations as opposed to solicitations for other organizations. For that reason subsections (8) and (9) of Florida Statutes Section 496.31 are unconstitutional in that they violate the plaintiffs’ equal protection and due process rights.

The trial court also concluded that appellants’ rights of free speech were not infringed because the primary activities of the organizations regulated by the statute do not involve activities protected by the first amendment. Accordingly, the court declared that the solicitations act was constitutional except for subsections 496.31(8) and (9) which the court declared unconstitutional and severable from the rest of the act under the principles set forth in State v. Calhoun County, 127 Fla. 304, 170 So. 883 (1936). Hence, the court enjoined enforcement of the provisions of subsections (8) and (9).

In the appeal before this Court appellants again assert that the solicitations act is constitutionally infirm. They do not contend that the state is without the power to enact valid legislation regulating the solicitation of funds from the public for non-charitable purposes. But, they contend, it violates appellants’ equal protection right to impose such regulation on them while at the same time permitting others who do not represent any law enforcement association to engage in the same activity without any such regulation, registration or restraint. Appellants also contend that their due process rights have been compromised because of the unreasonable interference with their constitutionally protected right to pursue a lawful business. They maintain that there is no factual support in the record to establish the trial court’s findings that individuals solicited have been subjected to intimidation or that it is likely that those being solicited may believe that their contribution will bring them favors. Even if these findings may be sustained from the record, appellants nonetheless maintain that registration of solicitors along with the other regulatory aspects of the act do not logically relate to the curing of such abuses.

First, we have no difficulty in concluding that the overall regulatory provisions of the solicitations act comply with due process. Appellants assert that the right to engage in a lawful business is a fundamental right which may be regulated under the state’s police powers only when necessary to the achievement of a compelling state interest, citing State v. Leone, 118 So.2d 781 (Fla.1960). In State v. Leone this Court held that the right to pursue a lawful business is constitutionally protected but also recognized that this right may be limited when the benefit to the public justifies it. The right to earn a livelihood by engaging in a lawful occupation or business is subject to the police power of the state to enact laws which advance the public health, safety, morals or general welfare. State ex rel. Hosack v. Yocum, 136 Fla. 246, 186 So. 448 (1939). With regard to the regulation of business interests we recently stated in Department of Business Regulation v. National Manufactured Housing Federation, Inc., 370 So.2d 1132 (Fla.1979):

Among [the constitutionally protected rights] are a person’s right to contract and the right to pursue a lawful business, both recognized under the fifth and fourteenth amendments to the United States Constitution and under article I, section 2 of the Florida Constitution. Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881, 884 (Fla.1974). These are not, of course, absolute rights. They are subject to reasonable restraint in the interest of the public welfare. Id. Legislative limitations upon the exercise of these liberties are constitutional if they rationally relate to a valid state objective. Knowles v. Central Allapattah Properties, Inc., 145 Fla. 123, 198 So. 819 (1940).

370 So.2d at 1136 (emphasis supplied).

In Belk-James, Inc. v. Nuzum, 358 So.2d 174, 175 (Fla.1978), a case involving a due process attack on a statute regulating taxable malt beverages possessed for sale in Florida, we said, “[T]he proper standard by which we must evaluate the Legislature’s exercise of the police power in the area of economic regulation is whether the means utilized bear a rational relationship to a legitimate state objective.”

In the case at bar it is apparent that the legislature was concerned with the perpetration of deceptive or coercive solicitation practices upon the public. In enacting the solicitations act to protect the public, the legislature sought to further a legitimate state interest. And in prohibiting certain acts and imposing registration and disclosural requirements as the means by which to achieve these objectives, we cannot say that the legislature acted irrationally. The legislature is vested with wide discretion to determine the public interest and the measures necessary for its achievement. Holley v. Adams, 238 So.2d 401 (Fla.1970). The fact that the legislature may not have chosen the best possible means to eradicate the evils perceived is of no consequence to the courts provided that the means selected are not wholly unrelated to achievement of the legislative purpose. A more rigorous inquiry would amount to a determination of the wisdom of the legislation, see Belk James, Inc. v. Nuzum, supra, and would usurp the legislative prerogative to establish policy. We hold that the regulatory measures imposed under part II of chapter 496 bear a rational relationship to the restraint of abusive or improper solicitation practices and are calculated to achieve a valid state interest.

We also have no difficulty in sustaining the solicitations act against appellants’ equal protection attack. They contend that the proper standard to apply in this case is. the strict scrutiny test rather than the traditional rational relation test because the legislative classification burdens their “fundamental” right to pursue a lawful business. We reject this contention. Although the asserted right is a constitutional right, it is not the species of fundamental right which invokes the strict scrutiny standard under the equal protection clause. See Newman v. Carson, 280 So.2d 426 (Fla.1973). Thus the separate treatment of solicitation of contributions for law enforcement associations does not constitute an invidious discrimination if there is a rational basis for the separate treatment. Appellants also assert, however, that the trial court’s conclusion that individuals solicited for contributions to law enforcement organizations are more susceptible to intimidation and the expectation of favors is an inadequate basis to support the legislative classification even under the rational relation test because it is based on speculation and mere possibilities. Appellants cite Rollins v. State, 354 So.2d 61 (Fla.1978), for the proposition that a legislative classification may not be sustained based on mere judicial hypothesis.

While it is true that the courts may not supply an imaginary basis for upholding a statutory classification, they must sustain the act if any realistic and rational set of facts may be conceived to support it. In North Ridge General Hospital v. City of Oakland Park, 374 So.2d 461 (Fla.1979), we stated the relevant considerations in determining equal protection claims:

The legislature has wide discretion in creating statutory classifications. There is a presumption in favor of the validity of a statute which treats some persons or things differently from others.
[ I]f any state of facts can reasonably be conceived that will sustain the classification attempted by the Legislature, the existence of that state of facts at the time the law was enacted will be presumed by the courts. The deference due to the legislative judgment in the matter will be observed in all cases where the court cannot say on its judicial knowledge that the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.

374 So.2d at 464-65 (citations omitted).

In this case we believe that the legislature could rationally conclude that the potential for abuse by solicitors collecting funds for law enforcement organizations was greater than for solicitors for other non-charitable organizations. This potential for abuse is reflected in the testimony of Birchfield, who described a typical decal or sticker pitch used to solicit funds:

We are getting ready for the annual decals this year. It goes on your windshield. Can you help us out this year by purchasing the decals, only 25 per decal. You have two cars, that would be $50.00. These decals that you know-if you run a red light or traffic ticket or anything, it lets the boys know when the officer walks up that you are supporting them.
... You also can use your decal pitch in with your ads, you know, selling your ads on the phone. Say, if Mr. Jones doesn’t want to buy an ad, you come back, you know, we do send out the decals, put it on your door of your business. This decal lets the boys know patrolling your area that you do support them so they watch your business a little better than the shoe store next door, which tells us to go to hell, or something.

Birchfield also testified that this decal approach was used effectively only in connection with solicitation on behalf of law enforcement organizations:

Q: Did you give that sticker pitch on behalf of any other organization, other than law enforcement organizations?
A: No. That is what sells the sticker. Put it on your windshield. If the officer approaches your car, the officer knows you are supporting them and his organization.
Q: In the event the fireman developed a sticker, you could then use the sticker pitch?
A: I guess you could come out and say, Mr. Jones we do have the stickers. The guys get to you here a little faster if they know you have a sticker. That would sound stupid. The police officer walks up to your car and he automatically sees it on your car.

Furthermore, the fact that the legislature chose not to deal with the possibility of abuse by solicitors for non -profit organizations does not invalidate part II of chapter 496 on equal protection grounds. The United States Supreme Court and this Court have repeatedly said that the legislature is free to regulate perceived evils one step at a time, addressing itself first to the phase of the problem which seems most acute to the legislative mind. See City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); Lasky v. State Farm Insurance, 296 So.2d 9 (Fla.1974); Rodriguez v. Jones, 64 So.2d 278 (Fla.1953). It does not necessarily follow that because the legislature regulated some non-charitable organizations that it must regulate all such organizations. “So long as the classification is based upon practical differences, such as peculiar opportunities for abuse and oppression in a particular class singled out for regulation, it is not unconstitutional.” State v. White, 194 So.2d 601, 603 (Fla.1967) (quoting from 6 Fla.Jur., Constitutional Law, § 303 p. 529). We hold that part II of chapter 496 complies with the equal protection clauses of the state and federal constitutions.

Accordingly, we decide that the portion of the Law Enforcement Funds Act challenged by appellants does not violate the United States or Florida Constitutions. For the reasons expressed in this opinion we affirm the trial court below.

It is so ordered.

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

      . Ch. 78-124, Laws of Florida.

      . Art. 1, § 2, Fla.Const.

      . U.S.Const. Amend. XIV, § 1.

      . U.S.Const. Amend. I; Art. I, § 4, Fla.Const.

      . U.S.Const. Amend. XIV, § 1: Art. I, §§ 9 & 2, Fla.Const.

      . Perry testified that although the State Fraternal Order of Police is a labor organization as well as a fraternal organization, his particular member lodge was strictly a fraternal association. The Dade County Police Benevolent Association, he said, was a separate labor organization which represented its members in collective bargaining.

      . In associating together, at least part of the police organization’s objectives include the promotion of that group’s special interests. Perry testified that the police had not received a favorable press in Dade County and that the "Bolo” magazine was published primarily as a public relations tool “to convey the police side of the story” to the public.

      . Perry explained that police department rules and regulations prohibit police themselves from directly soliciting the public for contributions.

      . See § 496.11(8), Fla.Stat. (1979). The charitable solicitations act is repealed by chapter 76 • 168, section 3, as amended by chapter 77-457, section 1, effective July 1, 1982.

      . Appellants find no fault with that portion of the trial court order holding unconstitutional subsections 496.31(8) and (9), Florida Statutes (1979). And since appellee has not filed a cross appeal with respect to this point, we do not pass on the trial court’s finding of unconstitutionality.


text:
    ST. PAUL TITLE INSURANCE CORPORATION, Petitioner, v. Floyd E. DAVIS, Jr., Martin R. West, Jr., and Louis C. Paladini, not individually but as Trustees of Mortgage Investors of Washington, foreign business trust, Respondents.
    No. 59245.
    Supreme Court of Florida.
    Nov. 13, 1980.
    Rehearing Denied Feb. 20, 1981.
    Carleton L. Weidemeyer, of Wightman, Weidemeyer, Jones & Turnbull, Clearwater, and Robert Knox, of Atwood & Hurst, San Jose, Cal., for petitioner.
    James D. Wing and J. Brent Walker, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for respondents.
   ALDERMAN, Justice.

By way of a petition under the “all writs necessary” provision of article V, section 3(b)(7), Florida Constitution (1980), filed after April 1, 1980, petitioner seeks review of a district court decision affirming per cu-riam without opinion the trial court’s decision. Respondents have moved to dismiss the petition on the basis of lack of jurisdiction. Petitioner’s alternate petition for “conflict” review filed under article V, section 3(b)(3) from this same per curiam af-firmance was dismissed sua sponte by this Court by order, 385 So.2d 761 (Fla. 1980), because the new section 3(b)(3) does not permit our review of district court decisions which merely read in their entirety: “Per Curiam. Affirmed.” See Jenkins v. State, 385 So.2d 1356 (Fla. 1980).

We will not allow the “all writs necessary” provision of section 3(b)(7) to be used to circumvent the clear language of section 3(b)(3) and our holding in Jenkins v. State that we lack jurisdiction to review per cu-riam decisions of the several district courts of appeal of this state rendered without opinion when the basis for such review is an alleged conflict of that decision with another. The all writs provision of section 3(b)(7) does not confer added appellate jurisdiction' on this Court, and this Court’s all writs power cannot be used as an independent basis of jurisdiction as petitioner is hereby seeking to use it. Besoner v. Crawford, 357 So.2d 414 (Fla. 1978); Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla. 1976).

We are without jurisdiction in this matter, and, accordingly, we grant respondents’ motion and dismiss petition for review under the “all writs necessary” provision of article V, section 3(b)(7), Florida Constitution.

It is so ordered.

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

ADKINS, J., dissents.


author: PER CURIAM.

text:
    Joel JAFFER, Appellant, v. MIAMI BEACH REDEVELOPMENT AGENCY, Appellee.
    No. 58737.
    Supreme Court of Florida.
    Dec. 24, 1980.
    Rehearing Denied Feb. 26, 1981.
    Joel Jaffer, in pro. per.
    Hugh M. Taylor of Bryant, Miller & Olive, Tallahassee, and Dubbin, Schiff, Berk-man & Dubbin, Miami, for appellee.
   PER CURIAM.

Joel Jaffer filed a notice of appeal seeking review of a circuit court order denying him relief on a motion he filed in a proceeding to which he was not a party. There is no basis shown for appellate review, so we hereby dismiss the appeal.

It is so ordered.

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