author: GARRISON, Judge. KLEES, Judge LOBRANO, Judge,

text:
    Paul L. LOEWENWARTER v. Henry M. MORRIS, Superintendent of Police, New Orleans Police Department.
    No. CA-0180.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1982.
    Writ Denied Oct. 21, 1982.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert E. Barkley, Jr. and Francis R. White, III, New Orleans, for plaintiff-appellee.
    McGlinchey, Stafford, Mintz & Cellini, Thomas P. Anzelmo, Sr., White, Jones & Lombard, Charles H. White, George R. Sim-no, Deputy City Atty., New Orleans, for defendant-appellant.
    Before GARRISON, KLEES and LO-BRANO, JJ.
   GARRISON, Judge.

I

This is an appeal from a judgment of the district court dismissing defendant’s exception of no cause of action and issuing a writ of mandamus as follows:

“. . . to compel the Defendant to produce for inspection and copying by Plaintiff the following records of the New Orleans Police Department:
“New Orleans Police Department’s homicide report on the death of New Orleans Police Officer Gregory Neupert, who died on or about November 8, 1980, together with any attachments or addenda to that report as well as any supplemental reports pertaining to the Police Department’s investigation of Officer Neupert’s death and any statements obtained in connection therewith and all ballistics, Laboratory or other tests performed in connection therewith.”

Plaintiff and defendant presented to the trial court the following joint stipulation of facts:

“1.

“Paul L. Loewenwarter is a person of the full age of majority. He is a producer of CBS 60 Minutes news program, which is broadcast weekly by CBS, a major television network, and carried by CBS and its affiliated television stations throughout the country. CBS News program 60 Minutes has been the mostly widely watched television news broadcast of the last decade and has won numerous awards for journalistic excellence. In each 60 Minutes broadcast, CBS News reports upon several different issues of national or international importance. To produce these broadcasts, CBS News performs in-depth investigation and research.

“2.

“Defendant Henry Morris is Superintendent of Police, New Orleans Police Department (‘NOPD’), and as such is the ‘custodian’ of the NOPD’s records, within the meaning of the Louisiana Public Records Act, LSA-R.S. 44:1A(3).

“3.

“Pursuant to, and in full compliance with the Louisiana Public Records Act, Loewen-warter requested Morris to allow him to inspect and copy certain NOPD records pertaining to the investigation of the homicide of NOPD Officer Gregory Neupert. Those records were requested because 60 Minutes is investigating the matter for the purpose of broadcasting a news program.

“4.

“Loewenwarter originally made an oral request for the records to NOPD Public Information Officer August Krinke on September 8, 1982. Loewenwarter was told that his request would be considered. Loewen-warter followed up with a written request delivered to Morris on September 10, 1982. A copy of that written request is attached hereto as Exhibit 1.

“5.

“Loewenwarter’s September 10, 1982 written request was delivered to Morris on that date with a letter from Loewenwarter’s counsel, a copy of which is attached hereto as Exhibit 2.

“6.

“Immediately upon receipt of Loewenwar-ter’s written request of September 10, 1982, Morris turned that request over to the City Attorney’s office, with a copy to the District Attorney’s office. That same day, John Kastner, Morris’ assistant, advised Loewenwarter’s counsel of the foregoing and that Morris would be guided by the advice of the City Attorney’s office.

“7.

“Loewenwarter’s counsel called the attorneys in the City Attorney’s office and the District Attorney’s office who were handling the matter several times during the week of September 13, 1982 in order to obtain a response to Loewenwarter’s request, but those attorneys were unavailable and did not return the calls. Finally, at the end of that week, Loewenwarter’s counsel called John Kastner, advised him that he had been unable to contact the attorneys who were handling the matter, and that suit would be filed unless the matter could be resolved.

“8.

“After the call to Kastner, Mr. Thomas Anzelmo of the McGlinchey law firm called Loewenwarter’s counsel late in the afternoon on September 16, 1982, advised him that he was handling the matter, and that the records would not be produced because of orders issued in a civil suit pending in federal court. That was confirmed by Mr. Anzelmo in a letter dated September 17, 1982, a copy of which is attached hereto as Exhibit 3.

“9.

“Mr. Anzelmo’s telephone call late in the afternoon on September 16, 1982, was the first notice to Loewenwarter or his counsel that the records would not be produced, Mr. Anzelmo’s letter of September 17, 1982, was the first and only written response to Loewenwarter’s requests until defendant’s pleadings were filed herein on September 30, 1982. The sole bases evoked in both the telephone response and the written letter response for refusing Loewenwarter’s request were the issuance of the protective order and an oral order staying discovery in the federal civil suit.

“10.

“Neither Loewenwarter nor his counsel were ever advised by anyone, orally or in writing, that the records were not ‘public records’ or that they were within the exemption contained in LSA-R.S. 44:3A(1) of that they would not be produced because of a pending criminal prosecution in federal court or an ‘ongoing investigation’ by the District Attorney’s Office until the conference with the Court on September 28, 1982, some twenty days after Loewenwarter’s oral request and eighteen days after his written request. Until defendant’s pleadings were filed in this case, neither Loewen-warter nor his counsel were ever advised by anyone in writing that such was a basis for refusing to produce the records.

“11.

“None of the records requested by Loewen-warter have been produced to him for his inspection and copying.

“12.

“The records in question do not pertain to any pending state criminal litigation.

“13.

“No one has been prosecuted or charged in any court for the homicide of Officer Neu-pert, and there are no persons suspected of the murder of Officer Neupert.

“14.

“Proposed charges against New Orleans police officers for the homicides and batteries occurring at Algiers during the investigation of Neupert’s death have twice been presented to Orleans Parish special grand juries, but neither grand jury returned an indictment. The first special grand jury, which investigated the matter from December 1, 1980 to May 13, 1981, heard 88 witnesses in 113 appearances, toured both the New Orleans Police Department and Algiers, and viewed physical evidence. That grand jury was presented with twelve proposed indictments, involving charges of second degree murder, aggravated battery and perjury against fourteen possible defendants. District Attorney Harry Connick stated that the grand jury’s failure to return an indictment indicated the grand jury has declared that ‘there is no legal basis for bringing criminal charges’ and Mr. Connick expressed his regret that there was not ‘sufficient evidence to justify criminal prosecutions.’

“15.

“The District Attorney did not institute any criminal prosecutions by filing a bill of information which could have been done without grand jury intervention for the criminal charges of manslaughter, aggravated battery and perjury or any other crime which does not carry a mandatory sentence of death or life imprisonment.

“16.

“After the special grand jury was dismissed in May 1981, without returning an indictment, Mr. Connick stated: ‘While it is important to point out that these actions are final as of now, this office and the Grand Jury are prepared to reopen the investigation and reexamine allegations of criminal wrongdoing by the police if any new evidence is presented that would warrant such action.’ Mr. Connick would reopen any case, not just the Algiers case, if presented with new evidence which would warrant reexamining allegations of criminal violations.

“17.

“After the first special grand jury refused to return an indictment, Mr. Connick stated:

‘(E)very conceivable human effort was expended by the Orleans Parish Special Grand Jury and by the members of my staff who worked on the case to determine the truth and to see that justice prevailed.’

“18.

“The first special grand jury returned no true bills as to everyone except one police officer as to whom the grand jury preter-mitted. After the first special grand jury was dismissed and Mr. Connick’s statements were made as set forth' above, a second special grand jury was convened and reopened the investigation and reexamined allegations of criminal wrongdoing by one police officer. That special grand jury met from June 1981 to June 1982, and did not return an indictment. The case is not under active investigation by the District Attorney’s Office or the state grand jury at the present time. However, the District Attorney’s Office would reopen the case if presented with new evidence which would warrant reexamining allegations of criminal violations. The District Attorney’s Office would do that in any case, not just this case.

“19.

“There is presently pending in federal court in New Orleans a criminal prosecution against seven members of the New Orleans Police Department for allegedly violating the civil rights of four persons (none of whom was Neupert) by beating them. Specifically, the federal prosecution is based upon federal statutes, 18 U.S.C. §§ 2, 241 and 242. The indictment in that case was filed on July 9, 1981. The indictment was dismissed by the district court and later reinstated by the 5th Circuit Court of Appeals, and a writ application is currently pending before the U. S. Supreme Court. No one is charged in the federal criminal prosecution with the homicide of Officer Neupert or anyone else. Neither of the parties to this action is a party in the federal criminal litigation.

“20.

“There is also presently pending in federal court in New Orleans the suit of Byrd v. Parsons, Civil Action No. 81-406, which is a civil action for damages brought pursuant to the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985, against the City of New Orleans, the mayor and various members of the NOPD for allegedly violating plaintiff’s civil rights after the death of Officer Neu-pert. It is consolidated with several other similar suits. Neither Paul Loewenwarter nor Henry Morris is a party to that suit.

“21.

“The plaintiff in Byrd filed a motion to compel defendants to produce various documents, including NOPD records. The magistrate granted the motion and ordered the defendants to produce the various documents requested. In granting the motion, however, the magistrate, on only an oral request by defendants’ counsel made at the time the motion to compel was considered, issued a protective order ordering the plaintiffs and their attorneys, agents, etc., to limit their use of the materials to the lawsuit, and ordered the plaintiffs and their attorneys, agents, etc., not to disclose the materials to anyone except those employed in connection with the lawsuit. The plaintiffs appealed the issuance of the protective order to the judge. The judge did not affirm the protective order but rather, the judge referred the plaintiffs back to the magistrate. The plaintiffs have not applied to the magistrate for further relief from the protective order. A copy of the protective order is attached as Exhibit 4.

“22.

“The protective order, by its terms, is directed only to the plaintiff, and not the defendants, in Byrd v. Parsons.

“23.

“The United States, which is not a party to the federal civil suit, Byrd v. Parsons, filed a motion to stay discovery in that civil suit. That motion was heard on September 1, 1982, and after the conclusion of argument, the federal court orally ordered the parties to the civil suit to stay formal discovery in the civil suit. The oral stay order was not directed to anyone other than the parties to the federal civil suit. No written order staying discovery in the civil suit was issued.

“24.

“While both parties hereto stipulate to the existence of the foregoing facts, for purposes of this litigation only, the parties do not agree that all of the foregoing stipulated facts are relevant and each of the parties hereto reserves his right to object to the relevancy of any of the foregoing stipulated facts.”

II

R.S. 44:1 provides as follows:

“A. (1) As used in this Chapter, the phrase ‘public body’ means any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, or any other instrumentality of state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function.
“(2) All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty or function which was conducted, transacted or performed by or under the authority of the constitution of laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution of the laws of this state, are ‘public records,’ except as otherwise provided in this Chapter or as otherwise specifically provided by law.
“(3) As used in this Chapter, the word ‘custodian’ means the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.” (emphasis supplied)

Additionally, R.S. 44:3 provides:

“A. Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety, marshals, investigators, correctional agencies, or intelligence agencies of the state, which records are:
“(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled; or . ... ” (emphasis supplied)

In the instant appeal, defendants argue that the records requested pertain to pending litigation citing a protective order in the federal suit of Byrd v. Parsons. Byrd v. Parsons is a federal civil suit for damages under 42 U.S.C. § 1983. Additionally, there are two civil suits for damages pending in Civil District Court. The case of U. S. v. McKenzie is a federal criminal prosecution which is pending. Each case is examined separately below.

A.Byrd v. Parsons

In Byrd the magistrate issued the following protective order:

“Considering the Defendant’s Request for Protective Order made during the conference in Chambers on July 28, 1982:
“IT IS ORDERED that the plaintiffs, their attorneys, experts, agents, and any firms, corporations and/or. individuals who are employed in connection with this litigation be and they are hereby ordered to limit their use of the photographs, police reports, diagrams of the scene, statements of police officers, statements of witnesses taken by police officers, taped recordings of police officers and/or witnesses made by the police department, and any other document, recording, report, tests results, gun, pellet, cartridge, shell, and all physical evidence and things given to the plaintiffs by defendants pursuant to a Request for Production or made available to plaintiffs in connection with this litigation, to the need for the preparation of the trial and trial of these cases only.
“IT IS FURTHER ORDERED that the plaintiffs, and the parties referred to above are specifically ordered not to disclose any document or portions thereof, or any of the things referred to above to any Reporter or employee for the news media or to any other person, firm, or corporation who is not employed for the sole purpose of assisting in the preparation for the trial of these cases, or for use outside of this litigation.” (emphasis supplied)

As seen from the above copy of the order (1) the order is binding only on the plaintiffs, not on the defendants, and (2) Byrd is a civil case. The statute only exempts criminal litigation.

B.The Civil District Court Cases

Both of the Civil District Court suits are civil suits not specifically exempted under R.S. 44:3. Consequently, the material is public record relative to these two cases.

C.U. S. v. McKenzie

The Federal Grand Jury indicted several police officers on charges of criminal violations relative to the popularly called “Algiers Shooting” incident. On September 10, 1981 the U. S. District Court for the Eastern District dismissed all of the indictments against the 7 officers. On June 18, 1982, 678 F.2d 571, the Fifth Circuit Court reinstated the indictments. Apparently writs have been taken to the U. S. Supreme Court.

The Louisiana Public Records law specifically provides for and is binding upon the State and its subdivisions. See R.S. 44:1 quoted above.

Appellants argue that the exemptions contained in R.S. 44:3 for “pending criminal litigation” means “pending federal criminal litigation” as well as state criminal litigation. The trial judge found that “criminal litigation” meant State criminal litigation exclusively:

“For the record, the joint stipulations of fact recite in part, recites in part in paragraph 18 the following:
“ ‘The case is not under investigation by the District Attorney’s office or the State Grand Jury at the present time. It is possible, as the stipulation recites that the District Attorney’s office would reopen the case if presented with new evidence which would warrant reexamining allegations of criminal violation.’
“But the statute mandates pending criminal litigation or reasonable anticipation of criminal litigation and such is not the case herein. In view of the fact that the Public Records Act is a state statute enacted by the state legislature applicable to officers and agencies of the State and in view of the fact that the exemptions to the Public Records Act LSA-R.S. 44:3 are to be construed strictly, the Court is of the opinion that the records herein requested do not meet the standards enumerated in LSA:R.S. 43:31A (sic) in that the criminal litigation referred to therein refers to and is applicable to litigation proceedings in State Court.” (Tr. p. 16)

As pointed out in defendant-appellant’s brief, the Act must be limited to the jurisdiction of the Louisiana State Legislature. The Louisiana Legislature cannot pass laws for the State of Georgia. Likewise, the Louisiana Legislature cannot pass Federal laws. The legislature does not have the power to enact the Federal Rules of Criminal Procedure as that power is vested in the Congress. Accordingly, the trial judge is correct in his contention that the statute can only apply to State criminal litigation.

As to the issue of attorney’s fees, the trial judge pretermitted the issue. (Tr. p. 16) R.S. 44:35 provides as follows:

“A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
“B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
“C. Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner. Any appellate courts to which the suit is brought shall place it on its preferential docket and shall hear it without delay, rendering a decision as soon as practicable.
“D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney’s fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion thereof.
“E. If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester’s attorney’s fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney’s fees to the custodian.” (emphasis supplied)

Finally, to grant any stay sought by the defendants — or to permit any further delay in the production of the records sought by the plaintiff — would violate the freedom of speech and press guaranteed to the plaintiff and his employer by the First and Fourteenth Amendments to the U. S. Constitution. Therefore,

IT IS ORDERED that the judgment of the court below is hereby affirmed. The case is remanded for further proceedings consistent with this decree and for the awarding of attorney’s fees.

AFFIRMED.

KLEES and LOBRANO, JJ., concur with written reasons.

KLEES, Judge

concurring with written reasons.

The record convincingly shows that this matter is not under active state investigation by the District Attorney’s Office or by a State Grand Jury. Furthermore, there has been no affirmative showing by the appellant of a direct use by Federal Authorities of the records sought. Absent such evidence, I conclude along with my learned brothers that the records sought are public records under R.S. 44:1, et seq. and the judgment of the trial court should be affirmed.

LOBRANO, Judge,

concurring with written reasons.

I concur with the holding that appellee is entitled to the requested police records but do not agree with the interpretation of the “pending criminal litigation” exemption of La.R.S. 44:3A(1). The majority holds that “pending criminal litigation” refers only to state criminal litigation. Although the exemptions in a “public records statute” should be read narrowly, to hold that “pending criminal litigation” excludes federal criminal prosecution would be in error. The inevitable result of such a holding would be that a federal defendant would be able to obtain state investigative reports which may be a vital part of the federal prosecution in those instances where local law enforcement agencies often initiate investigations leading to federal criminal prosecution.

In the instant case the record reveals no showing that the documents sought pertain to the pending Federal criminal litigation which defendant seeks to use as an exemption. Therefore I conclude they are public records, and agree that the trial judge’s order should be maintained.

      . Raymond Hughes, et al. v. Parsons, et al., CDC # 80-17753; Carol Savant, et al. v. City of New Orleans, et al, CDC # 81-17890.


source: Caselaw Access Project

license: Public Domain

text:
    Tex SPRINGER, a/k/a Sonny Springer v. STATE of Mississippi.
    No. 53610.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Kenneth C. O’Neal, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Carlton McCullough, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C.J., SUGG, P.J., and BROOM, ROY NOBLE LEE, BOWLING and PRATHER, JJ., concur.


text:
    Robert Lee WHITT v. STATE of Mississippi.
    No. 53688.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B.B. Wilkes, Judge.

Before SUGG, P.J., and BROOM and BOWLING, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    Tony Brazil FRANKLIN v. STATE of Mississippi.
    No. 53780.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Roger W. Mathes, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Leflore County; Webb Franklin, Judge.

Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.

SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Judith E. HIGGASON v. STATE of Mississippi.
    No. 53452.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Guy M. Walker, Joseph A. Runnels, Jr., Laurel, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before WALKER, P.J., and BOWLING and DAN M. LEE, JJ.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C.J., SUGG, P.J., and BROOM, ROY NOBLE LEE, HAWKINS and PRATHER, JJ., concur.


text:
    PACIFIC INTERNATIONAL CONDOMINIUMS, INC. v. Manis James SMITH, Jr., et al.
    No. 53463.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Keyes, Moss & Piazza, Earl Keyes, Donald C. Woods, Jackson, for appellant.
    Young, Scanlon & Sessums, E. Stephen Williams, Anthony L. Phillips, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; J.C. Stennett, Chancellor.

Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.


text:
    STATE FARM FIRE & CASUALTY CO. and State Farm General Insurance Co. v. MISS. INSURANCE COMM’N., Independent Insurance Agents of Miss. and Professional Insurance Agents of Miss.
    No. 53472.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Wise, Carter, Child & Caraway, Natie P. Caraway, W. McDonald Nichols, Jackson, Leo J. Jordan, Carla Temple, Bloomington, Ill., for appellant.
    Heidelberg, Woodliff & Franks, George F. Woodliff, Charles G. Copeland, Michael B. Martz, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


author: WALKER, Presiding Justice, HAWKINS, Justice,

text:
    Thomas Travis HURT v. STATE of Mississippi.
    No. 53776.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Merle R. Bouchard, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and HAWKINS and DAN M. LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of LeFlore County, Mississippi, wherein the appellant, Thomas Hurt, was indicted, tried and convicted of the crime of aggravated assault upon a law enforcement officer and with being a habitual criminal pursuant to Mississippi Code Annotated section 99-19-81 (Supp.1981).

After conviction of aggravated assault on a law enforcement officer, a separate hearing was held by the court without a jury and appellant was sentenced to serve a term of thirty (30) years without parole in the custody of the Mississippi Department of Corrections.

On appeal, the appellant assigns as error, inter alia:

I.

The verdict of the jury was contrary to the overwhelming weight of the evidence.

II.

The court erred in refusing to allow him a jury trial at the sentencing phase as a habitual criminal.

On the evening of June 20, 1981, Thomas Hurt, also known as “Pee Wee,” and his wife, Elizabeth, were walking down Dixie Lane Alley on the way home from a movie. As they walked past Earl DeLaney and Anthony Lloyd Smith, also known as “Ricky,” Smith, according to Hurt, Ricky stated to Elizabeth, “Hey Baby.” Hurt told Smith he did not appreciate the comments being made to his wife and both started to argue which led to a fight. According to DeLaney, he and Hurt’s brother-in-law broke up the fight. Hurt left the area and Ricky also left to get a gun according to DeLaney.

Hurt met his wife and her sister at their house where he got out his shotgun. He told them he would be less than a man if he did not straighten this situation out. After Hurt left, Mrs. Hurt saw a man named Benson, Smith’s roommate, out back of their house with a shotgun.

According to several State’s witnesses, Hurt returned to Dixie Lane Alley with his shotgun making threats to kill anyone in his way and advising everyone to get off the street. Hurt denied making any threats but did admit returning to Dixie Lane Alley with a shotgun.

Officer Grones, a plainsclothesman, was notified that several complaints had been made concerning a man with a shotgun at Dixie Lane Alley. At approximately 9:00 p.m., Grones, in an unmarked vehicle, arrived at the scene and was informed by a resident of the suspect’s location. He drove to the southend of the Alley but did not see the suspect. He turned around and while returning to the house where he obtained his initial information, saw the suspect down on his knees crouching beside a car on the right side of the Alley. Grones got out of his car, drew his weapon and advised the suspect that he was a police officer and instructed him to stand up. The suspect started up at which point Grones could see his face and half of his chest. The suspect then started back down and again Grones instructed him to stand up. The suspect came up, at which time a gunshot was fired.

Hurt fled from the scene. Officer Grones was able to radio headquarters to describe his alleged assailant and his physical condition. He was then transported to the hospital where he was treated for gunshot wounds of the left shoulder and chest area necessitating a hospital stay of approximately seven days.

Hurt admitted the confrontation with Grones but testified that as he stood up and was backing up his gun accidentally fired. At that time he was unaware he had hit anyone. He was later informed that a policeman had been shot on Dixie Lane Alley. Hurt decided to turn himself in and James Stevens, the chief of police, picked him up on Broad Street and transported him to the police department. Hurt also led the police to the house of Frank Thomas, where they secured a single barrel .12 gauge shotgun.

During trial, Hurt admitted the following convictions: Robbery in 1969; Burglary in 1971; Robbery in 1974; Armed Robbery in the State of Illinois in 1975; Burglary of a building in 1978; and Burglary in 1980.

I.

Appellant contends the verdict of the jury was contrary to the overwhelming weight of the evidence.

In his defense appellant testified that he did not intend to shoot anyone the evening of June 20, 1981, and that the shooting which did take place was accidental.

The testimony reveals the appellant made various threats, a fact he disputes, as he walked down Dixie Lane Alley armed with a shotgun. Freddie Lee Baker, who was standing in a doorway, and after someone said they were going to call the police, testified that he heard appellant say, “He don’t care, he shoot the police.” Tim Austin, Jr., a resident of Dixie Lane Alley, heard the appellant state: “I am going to kill somebody, I don’t care who it is.”

Whether or not appellant intended to shoot the officer or whether the shooting was accidental as he claims was peculiarly a question for the jury to resolve. Black v. State, 231 Miss. 191, 94 So.2d 925 (1957).

When the facts clearly make out a jury question and there exists sufficient evidence to support their verdict, this Court will not disturb that verdict. See Sadler v. State, 407 So.2d 95 (Miss.1981).

Based upon the facts presented, we find the jury verdict was amply supported by the evidence.

II.

The appellant also assigns as error that the court erred in refusing to allow him a jury trial at the sentencing phase as a habitual criminal.

This question has been answered contrary to appellant’s contention in Wilson v. State, 395 So.2d 957 (Miss.1981); Diddlemeyer v. State, 398 So.2d 1343 (Miss.1981), and most recently in Adams v. State, 410 So.2d 1332 (Miss.1982).

The remaining assignment of error is without merit.

Finding no reversible error, the judgment' and sentence of the trial court are affirmed.

AFFIRMED.

PATTERSON, C.J., SUGG, P.J., and BROOM, ROY NOBLE LEE, BOWLING, and PRATHER, JJ., concur.

HAWKINS and DAN M. LEE, JJ., specially concur.

HAWKINS, Justice,

specially concurring.

The circuit judge was fully authorized to sentence the defendant to thirty (30) years under the crime for which he was charged, and I would affirm on this sentence.

Insofar as additionally sentencing him to serve without any chance of parole, which is only authorized under Mississippi Code Annotated section 99-19-81 (Supp.1981), it is my view that the defendant was entitled to a jury trial to determine whether or not he was guilty of being an habitual offender under the terms of this section, for the reasons stated in my dissent in Wilson v. State, 395 So.2d 957 (Miss.1981).

The majority has fully addressed this contention, however, in two cases, and decided the point contrary to my view. I must accept this in the hope that some day the Court will be persuaded otherwise. A fundamental right is violated when an accused is denied the right to have a jury determine a question of fact.

DAN M. LEE, J., joins this specially concurring opinion.


author: BROOM, Justice,

text:
    Bennie Lee WILLIAMS v. STATE of Mississippi.
    No. 53875.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    Moore, Royals & Taylor, Robert H. Taylor, Jr., Jackson, for appellant.
    Bill Allain, Atty.Gen. by Carlton F. McCullough, Sp.Asst.Atty.Gen., Jackson, for appellee.
    Before SUGG, BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Escape from jail by defendant Bennie Lee Williams, before he was sentenced but after a jury had found him guilty of murder, is the background of this case appealed from the Circuit Court of the First Judicial District of Hinds County, Special Circuit Judge Reuben Anderson presiding. For his escape, Williams was tried, convicted and sentenced to two years imprisonment, pursuant to Mississippi Code Annotated § 97— 9 — 49 (Supp.1981). Sole argument asserted by him is that he should have been sentenced to a term not exceeding one year, pursuant to Mississippi Code Annotated § 97-9-51 (Supp.1981). We affirm but remand for resentencing.

Undisputed facts are that on February 5, 1981, the defendant was tried and convicted of the crime of murder. The presiding trial judge, the Honorable William F. Coleman, set the sentencing for 9:00 a.m. on February 6, 1981, and court was recessed for the day. Next morning, February 6, 1981, the defendant was brought from the Hinds County detention center by a law officer and placed in the courtroom to await sentencing. While waiting in the courtroom, the defendant escaped, but was apprehended later in the day. There was no dispute but that at the time of his escape he had been lawfully confined in the Hinds County detention center as a result of the murder charge for which the jury had found him “guilty”. For the escape, he was tried, convicted and sentenced under Mississippi Code Annotated § 97-9 — 49 (Supp. 1981), the pertinent part of which provides:

If any person confined in any jail upon any conviction for a criminal offense shall escape therefrom, or shall escape from custody before confinement therein, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding two (2) years, or in the county jail not exceeding one (1) year to commence from the expiration of his former sentence. (Emphasis added).

He contends that he should have been sentenced under § 97-9-51, supra, which provides:

Every person lawfully imprisoned in any jail, who shall escape therefrom or who shall attempt by force or violence to escape therefrom shall, upon conviction, be imprisoned in such jail not more than one (1) year.

Defendant concedes that “the evidence is sufficient to prove him guilty of § 97-9-51, supra, but not sufficient to prove his guilt under” § 97-9 — 49, supra. There is no case in our jurisprudence precisely on point, although we have decided several cases which made some reference to the statutes. Floyd v. State, 140 Miss. 884, 105 So. 765 (1925), construed § 886 of Hemingway’s Code, the forerunner to § 97-9-51, supra, but that case dealt with attempted escape and is not precisely in point. Bourdeaux v. State, 412 So.2d 241 (Miss.1982), held that one previously convicted and sentenced to the state penitentiary but confined in the county jail would not be punished under § 97-9 — 45 Miss.Code Ann. (1972), which is the statute controlling punishment for persons sentenced to the state penitentiary, but that Bourdeaux would be punished under Mississippi Code Annotated § 97-9 — 49 (1972).

We think the key to the issue is language excerpted from § 97-9 — 49: “to commence from the expiration of his former sentence.” It appears clear by the quoted language from § 97-9 — 49 that the legislators intended to punish the escape of prisoners who were already serving a sentence, or who were at least under a sentence. As the defendant astutely asserts in his brief: “Were a prisoner a pre-trial detainee, § 97 — 9—49, supra, could not apply, because, obviously, there would be no former sentence on to which to tack the two year or one year sentence prescribed.”

Such is precisely the situation subsisting here where, without doubt, when the defendant escaped he was not subject to any “former sentence” as provided in § 97-9-49. Absent any “former sentence”, the defendant’s escape was not within the purview of § 97 — 9—49. Defendant correctly concedes that § 97-9-51 is applicable. Accordingly, the case is affirmed but remanded for appropriate sentencing not to exceed one (1) year, pursuant to § 97-9-51, supra.

AFFIRMED, AND REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . The interpretation of the word. “conviction” as used by the Legislature in other contexts, has been interpreted by us as requiring both conviction and sentence and, therefore, tantamount to final judgment. See Keithler v. State, 18 Miss. (10 Sm. & M.) 192, 224, 236 (1848); Lang v. State, 238 Miss. 677, 119 So.2d 608 (Miss.1960).


text:
    Joe TAYLOR v. UNITED STATES FIDELITY & GUARANTY CO., et al.
    No. 53456.
    Supreme Court of Mississippi.
    Oct. 13, 1982.
    William B. Sullivan, Laurel, for appellant.
    Harold W. Melvin, Patricia Melvin, Laurel, for appellees.
    Before SUGG, BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Wrongful refusal to pay certain workmen’s compensation benefits is asserted as basis of Joe Taylor’s (plaintiff’s) tort suit against United States Fidelity and Guaranty Company (USF & G) and James Williams and John Grove, agents and employees of USF & G. The declaration, filed in the Circuit Court of the Second Judicial District of Jones County, alleged that plaintiff Taylor suffered an injury covered by Workmen’s Compensation while he was employed by Luther McGill, Inc. on September 27, 1977. USF & G was the carrier. The lower court, Circuit Judge James Hester presiding, sustained the defendant’s demurrer to the declaration. We affirm.

Essence of the declaration before us is the allegation that USF & G, Williams and Grove “negligently, carelessly, wrecklessly [sic], willfully and hazardiously [sic], failed, refused and neglected to process legitimate medical claims .... ” Other allegations are to the effect that the defendant in like manner declined responsibility for the hospitalization and other expenses related to Taylor’s injury and needful treatment. For his resulting “fright, grief, shame, humiliation . .. worry . .. physical pain ... emotional stress”, the plaintiff demanded $5,000,000 in damages.

Plaintiff’s tort action seeks damages described as “emotional stress” together with “mental stress” and punitive damages. The declaration charged that Williams and Grove, as USF & G’s agents, “had charge of and handled” plaintiff’s claim against Luther McGill, Inc. for workmen’s compensation benefits. Along with their answer, the defendants, USF & G, Williams and Grove, demurred on the ground that the declaration fails to state a cause of action.

IS AN EMPLOYEE COVERED BY MISSISSIPPI WORKMEN’S COMPENSATION STATUTES ENTITLED TO MAINTAIN A COMMON LAW TORT ACTION AGAINST THE COMPENSATION CARRIER AND ITS REPRESENTATIVES BASED UPON ALLEGATIONS OF BAD FAITH AND MALICIOUS REFUSAL OF THE CARRIER TO PAY COMPENSATION BENEFITS? The plaintiff’s brief asserts that his tort action “is not barred under the exclusive remedy clause of the Mississippi Workmen’s Compensation act.” The exclusive remedy clause is contained in the Mississippi Workmen’s Compensation Act, codified as Mississippi Code Annotated § 71-3-9 (1972):

Exclusiveness of Liability
The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, ....

Other sections of the Compensation Act, including Mississippi Code Annotated §§ 71-3-15 and 71-3-77 (1972), set forth the usual procedure by which a workmen’s compensation claimant may assert his claim to compensation benefits.

We have held in a number of cases that a workmen’s compensation claimant may assert tort liability in certain third party situations. Index Drilling Company, Inc. v. Williams, 242 Miss. 775, 137 So.2d 525 (1962). McCluskey v. Thompson, 363 So.2d 256 (Miss.1978), states that one employee cannot sue a fellow employee in a negligence action because the employee’s exclusive remedy is under the Workmen’s Compensation Act.

Trotter v. Litton Systems, Inc., 370 So.2d 244 (Miss.1979) was a suit where an employee alleged that the doctor selected by the employer aggravated the employee’s original injury. He sued the employer for failure to provide proper medical care and our opinion stated:

The Florida compensation statutes are practically identical with Mississippi’s statutes. In Universal Manufacturing Company v. Barlow, 260 So.2d 827 (Miss.1972), the Court held that aggravation of a preexisting infirmity (which also means the aggravation of an existing injury) is compensable under the Act. The principle has been applied many times. Also, aggravation by a physician of an injury sustained by an employee in the scope of his employment is compensable.
In McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240 (Tenn.1977), the Tennessee court said:
“We hold, that in the field of workmen’s compensation law, and in suits by a worker against his employer, the initial injury is the cause of all that follows, even where there is superimposed upon the original injury, a new, or additional or independent injury during the course of treatment, negligent or otherwise.”
We are of the opinion that, under Mississippi statutes, the principle announced in Dixon v. Ford Motor Co., [53 Cal.App.3d 499, 125 Cal.Rptr. 872], supra, Warwick v. Hudson Pulp & Paper Co., Inc., [303 So.2d 701, Fla.App.], supra, and McAlister v. Methodist Hospital of Memphis, [550 S.W.2d 240], supra, pronounces the better rule, and the dual capacity doctrine should not be applied, absent legislative enactment.

Id., at 247.

We expressed the same rationale in Brown v. Estess, 374 So.2d 241 (Miss.1979), where we stated our opinion that:

[T]he purpose, spirit and philosophy of the Workmen’s Compensation Act is to make compensation the exclusive remedy of the employee where he is injured by the employer or any of its employees during the course of his employment.
Therefore, we hold that an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation comes within the purview of the Mississippi Workmen’s Compensation Act, Mississippi Code Annotated section 71-3-9 (1972) and is entitled to the immunity it provides.

Id., at 242-43.

In a well-reasoned decision, the California Court had before it the identical question now confronting us. There an employee sued his carrier alleging its negligent delay in providing medical care and its wanton misconduct in refusing to provide such care, causing temporary and permanent injuries to the employee. Noe v. Travelers Insurance Company, 172 Cal.App.2d 731, 342 P.2d 976 (1959). Rejecting the tort claim presented in that ease, the California court stated:

[BJeyond the legalistic objection to appellant’s position, we must point out that if delay in medical service attributable to a carrier could give rise to independent third party court actions, the system of workmen’s compensation could be subjected to a process of partial disintegration. In the practical operation of the plan, minor delays in getting medical service, such as for a few days or even a few hours, caused by a carrier, could become the bases of independent suits, and these could be many and manifold indeed. The uniform and exclusive application of the law would become honeycombed with independent and conflicting rulings of the courts. The objective of the Legislature and the whole pattern of workmen’s compensation could thereby be partially nullified.

Id., 342 P.2d at 979-80.

See also, Sullivan v. Liberty Mutual Insurance Company, 367 So.2d 658 (Fla.App.1979), cert. denied, 378 So.2d 350 (Fla., 1979).

To the same effect is Larson, Workmen’s Compensation Law, Section 72.97, where the author discussed the Noe case and concluded:

This result is correct under the proposed test. If at first glance it appears harsh, recall that the employee has it within his power to protect himself. He could have obtained the surgery and compelled the carrier to pay for it. A little reflection will show that any other rule would be unworkable. To hold the carrier liable in these circumstances would mean that tort litigation would flow from almost every difference of medical judgment, or perhaps even from delay in making payments.

Id., at 14-308 to 309.

After carefully considering the issue presented and the authorities cited in the briefs, we must reject the plaintiff’s argument. We find that the authorities cited by him are not persuasive in the context of the facts and the wording of the statutes before us in this case. Upon this record, we cannot say that the legislators, in codifying “Exclusiveness of Liability” in § 71-3-9, supra, intended to allow a tort action such as the one asserted here by the plaintiff.

The other proposition argued by the appellant in his brief is his assertion that the lower court erred in “handling preliminary discovery”. Although we find no reversible error in this regard, the chief issue first discussed above is dispositive and therefore we need not discuss how the lower court handled the matter of preliminary discovery.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . Failure of the employer or carrier to pay benefits under an award does not leave the claimant without recourse. Mississippi Code Annotated § 71-3-37 (1972) provides penalties in such a situation.


author: ADKINS, Justice.

text:
    James David RAULERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 59680, 59757.
    Supreme Court of Florida.
    Aug. 26, 1982.
    Rehearing Denied Nov. 3, 1982.

      David J. Busch, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

We have for review an order denying a motion to vacate judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850, as well as a direct appeal of a sentence of death. Appellant, James David Raulerson, was found guilty of first-degree murder and sentenced to death. This Court affirmed the trial court’s judgment and sentence. See Raulerson v. State, 358 So.2d 826, cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978). Following our af-firmance, appellant filed a petition for writ of habeas corpus in the United States District Court, Middle District, which presented a single Gardner (Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)), issue for that Court’s determination. While awaiting the federal district court’s decision, appellant, pursuant to Florida Rule of Criminal Procedure 3.850, filed, in the trial court, a motion to vacate judgment and sentence alleging several constitutional infirmities in the guilt and sentencing phases of the trial.

Before determination of the motion for post-conviction relief, which was subsequently denied by the trial court on May 9, 1980, the federal district court granted appellant’s habeas corpus petition and directed that a new sentencing hearing be held within sixty days. The sentencing hearing was originally set by the trial court for July 15, 1980, but at a status conference held on July 15,1980, that date was rescheduled for July 21,1980. On July 16,1980, the federal district court relaxed the sixty-day time constraint that it had placed on the new sentencing hearing, and on July 21, 1980, the lower court once again continued the sentencing proceeding, which was finally held on August 11, 1980. On August 12, 1980, appellant was again sentenced to death by the lower court. Appellant then filed a notice of appeal to this Court in case nos. 59,680 and 59,757 in which he sought review of the trial court’s denial of his motion for post-conviction relief and his sentence of death. These cases have been consolidated by this Court. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant raises eighteen issues in support of his assertion that the court below erred in denying his motion for post-conviction relief. We have reviewed these issues and find that appellant’s motion fails to raise any grounds which require reversal of the trial court’s denial.

Concerning appellant’s argument that he should have been granted post-conviction relief because the trial court improperly instructed the jury as to the underlying felonies in his trial for felony-murder, the Court finds that this issue could have been raised at trial or on direct appeal, and that failure to do so constitutes a waiver for purposes of appellant’s 3.850 motion. A motion to vacate judgment and sentence cannot be used as a substitute for an appeal, and where matters raised therein could have been or were raised on direct appeal, denial of the motion is proper. See Meeks v. State, 382 So.2d 673 (Fla.1980).

In regard to appellant’s assertion that the trial court erred in not allowing his counsel to withdraw, this Court finds no basis for reversing the trial court’s denial.

Appellant also contends that the trial court erred in denying his request for an evidentiary hearing to determine whether he was denied effective assistance of counsel. At the time that the trial court ruled on appellant’s motion for postconviction relief, the rule of law in Florida was that claims of denial of effective assistance of counsel based on inadequacy or incompetence of retained counsel were not cognizable as grounds for challenging conviction on appeal or collaterally in a motion for post-conviction relief under Rule 3.850. Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967). Based on this authority, the trial court concluded that appellant’s motion for post-conviction relief failed to raise grounds “properly cognizable in a post-conviction proceeding under and pursuant to Rule 3.850, Fla. R.Crim.P.” Notwithstanding this finding, the trial court went on to review the transcript of appellant’s trial and concluded that it conclusively shows that counsel for appellant met the standard of effectiveness of counsel as recently adopted by the Florida Supreme Court in Meeks v. State, 382 So.2d 673 (Fla.1980).

On May 7,1980, almost one year after the trial court had ruled on appellant’s motion for post-conviction relief, this Court rendered its decision in Vagner v. Wainwright, 398 So.2d 448 (Fla.1981), which overruled Cappetta and held that claims of denial of effective assistance of counsel based on inadequacy or incompetence of retained counsel are cognizable in state courts as grounds for challenging convictions on appeal or collaterally in a Rule 3.850 motion.

Based on this Court’s decisions in Vagner and Meeks, appellant now argues that the dismissal of his Rule 3.850 motion by the court below was erroneous, and that an evidentiary hearing on his claim that he was denied effective assistance of counsel should have been granted. In Meeks the Court held as follows:

Pursuant to a rule 3.850 motion, a prisoner is entitled to an evidentiary hearing unless the motion and the files and the records conclusively show that he is entitled to no relief. If the prisoner raises a matter that may properly be considered in a rule 3.850 motion, the trial judge reviewing the motion must either attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief or grant an evidentiary hearing.

Meeks v. State, 382 So.2d 673, 676 (Fla.1980).

Appellant argues that in the instant ease the trial court violated the rule announced in Meeks by summarily denying his 3.850 motion without attaching that portion of the case file or record which conclusively showed why appellant was not entitled to an evidentiary hearing. Because of this alleged violation of Meeks, appellant claims he is entitled to an evidentiary hearing on his motion for post-conviction relief.

We disagree. This Court’s decisions in Vagner and Meeks were rendered after the trial court had ruled on appellant’s 3.850 motion. Therefore, when the trial court denied appellant’s motion it was not necessary to attach that portion of the record which conclusively showed that he was entitled to no relief, as the motion charging ineffective assistance of private counsel was defective on its face and, therefore, legally insufficient. The only way in which this Court is able to determine whether appellant was erroneously denied an evidentiary hearing on his claim of ineffective assistance of counsel is to consider the entire record for the purpose of determining whether he was entitled to no relief. We have done so and find that the trial court properly denied appellant an evidentiary hearing on his claim of ineffective assistance of counsel. There can be no harmful error in the court’s failure to attach a copy of the entire record to its order.

As a third ground in support of his motion for post-conviction relief, appellant argues that the trial court should have granted his counsel’s motion, made at the 3.850 proceeding, to withdraw. Withdrawal was warranted, he contends, because of a conflict of interest which developed as a result of allegations by the state regarding the propriety of appellant’s counsel’s decision to file a motion for post-conviction relief on behalf of appellant. Our review of the record indicates that while the state was critical of the motives behind defense counsel’s timing in raising the motion for post-conviction relief, this criticism did not create any conflict of interest between appellant and his counsel. Accordingly, we find that the trial court properly denied the motion to withdraw.

Appellant does not present any argument in his brief concerning the remaining issues raised in his 3.850 motion other than to state that the trial court summarily denied each of the requests for relief without attaching portions of the record which conclusively show that he is not entitled to relief, that each claim he raised has merit; and that he does not intend to waive these claims for purposes of appeal.

In determining the merit of appellant’s remaining claims, we have reviewed the entire record. We find that every claim raised either should have been raised and was not, or was not a proper issue for review under a 3.850 motion, or failed to state grounds upon which relief could have been granted pursuant to a motion to vacate, or was conclusively refuted by the record, or was decided adversely to appellant by this Court on direct appeal.

We now consider the propriety of appellant’s second sentencing hearing, which he contests, on several points. First, appellant questions the sufficiency of the findings relied on by the sentencing court, arguing that four of the aggravating circumstances were improperly found applicable. Specifically, he contends that his actions did not create a great risk of death to many persons, that it was improper to find as aggravation that the murder was committed immediately after commission of the crime of rape, that it was not especially heinous, atrocious, or cruel, and that the finding that it was committed for pecuniary gain must be stricken as an improper doubling of aggravating factors. Only one argument has merit.

Appellant’s action did create a great risk of death to many persons. Section 921.141(5)(c), Florida Statutes (1973). There were four non-participating, unarmed, and innocent people present in the restaurant during the shoot-out between appellant and the police. That they took refuge on the floor behind tables and counters certainly does not mean that they were in no risk of being killed. A gun battle in a confined area certainly created a “likelihood” or “high probability” that someone, bystanders or police officers, would be hit and killed. See Kampff v. State, 371 So.2d 1007 (Fla.1979); Section 921.141(5)(c) was applicable.

Also properly applied was the aggravating circumstance that the murder was committed after commission of a rape. Section 921.141(5)(d). Appellant argues that because the crime of “rape” was repealed in 1974, no such offense existed at the time of this killing and so section 921.-141(5)(d), which specifically refers to “rape”, cannot be applied to him. We have considered similar arguments before, and found them without merit. See Adams v. State, 412 So.2d 850 (Fla.1982), and Hitchcock v. State, 413 So.2d 741 (Fla.1982).

Likewise without merit is appellant’s speculation regarding improper doubling of aggravating circumstances. There was no finding that the killing was committed during a robbery, (section 921.141(5)(d)), and so the application of section 921.-141(5)(f), relating to capital felonies committed for pecuniary gain, was permissible.

There is merit, however, to appellant’s argument regarding the finding that the killing was heinous, atrocious, and cruel. See section 921.141(5)(h). Applicable here is the observation made in Williams v. State, 386 So.2d 538, 543 (Fla.1980), quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974): “The murder, while utterly reprehensible, was not ‘accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous to the victim.’ ” We have held that killings similar to this one were not heinous, atrocious, and cruel. See Williams v. State; Fleming v. State, 374 So.2d 954 (Fla.1979); and Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). There being no finding of mitigating circumstances, the error was harmless. Sireci v. State, 399 So.2d 964 (Fla.1981).

The final point regarding the propriety of the findings relied on by the court in sentencing is whether it erroneously limited consideration of mitigating circumstances. Appellant argues that the court’s failure to properly consider nonstatutory mitigating circumstances is evidenced by its refusal to appoint experts to examine him with respect to the similarities between the circumstances of this crime and those of the murder of his “stepfather.” Had the court complied with his request, he contends, the psychological information discovered could have affected the penalty imposed.

The record demonstrates, however, that the court did consider appellant’s mental condition. Several witnesses testified regarding appellant’s relationship with his stepfather, and the effect on him of the latter’s murder. The judge’s findings, nevertheless, state that there was no evidence of extreme mental or emotional disturbance at the time of the crime.

Appellant clearly is unhappy with the conclusions, but they are within the domain of the sentencing court and we find nothing in the record which mandates a different result. The judge was not compelled to call the experts requested, and since he did consider the question, we will not fault his conclusions.

Appellant’s second point on appeal is that the sentencing court abused its discretion by denying his motion for a continuation of sentencing and that as a result, he was denied the rights of due process, equal protection, and effective assistance of counsel. Because there were only six weeks between the time that the federal court denied rehearing on its habeas corpus order and resentencing, appellant argues that he was prevented from adequately investigating and developing mitigating evidence relating to his mental condition. We disagree.

The federal court’s initial habeas corpus order was issued over three months before the date on which appellant was sentenced. He could have begun preparing for resen-tencing at that time. Valle v. State, 394 So.2d 1004 (Fla.1981), which appellant cites, held that twenty-four days, from the date of arraignment, was not long enough to prepare for trial. The time provided here, however, was adequate for what had to be done.

Appellant’s third point on appeal is that he was denied due process and effective assistance of counsel by the sentencing court’s refusal to allow his attorneys a night’s rest before presentation of closing argument. In requesting the continuance, defense counsel argued that they were exhausted from the long day and could not in that condition, provide competent representation. The court disagreed, and instead completed the hearing without a summation by appellant’s attorneys. We do not agree that the court’s action denied appellant the rights which he claims that it did.

The court did not refuse counsel the opportunity to present closing argument — it refused to delay presentation thereof until the next morning. Appellant’s attorneys could have given a closing argument had they been willing to do so that evening. In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), cited by appellant, counsel for the defendant was denied any chance of making a closing argument.

It was within the sentencing court’s discretion to grant or refuse the motion for continuance. The presiding judge evidently felt that all of the parties involved were sufficiently fit to complete the proceedings that evening rather than continuing them into the following day. He, the attorneys for both sides, and everyone else necessary to conduct the hearing had been present all day, so appellant’s attorney was not subjected to any more stress than anyone else involved in the proceeding. Furthermore, the record shows that the judge offered a dinner break which counsel for appellant refused as inadequate. Finally, we note that the hearing did not begin until 10:30 a.m., and that a two-hour lunch break was taken by all.

The trial judge did not abuse his discretion by refusing the continuance. The day does not appear to have been unreasonably long or strenuous; certainly, it was no longer than those endured in many other courtrooms in other proceedings. Defense counsel was not alone in the length of time worked that day. A break was taken at midday and another offered that evening and appellant’s counsel was not denied the opportunity to make a closing argument; he turned it down. In light of the foregoing, we cannot find the refusal to continue the proceeding until the next day to be error.

The fourth and final issue on appeal is whether the ruling of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), applies to a capital sentencing hearing and, if so, whether the state’s actions here violated appellant’s rights. In Brady, a convicted murderer, after being sentenced to death, discovered that a confession by his accomplice had been suppressed by the prosecution despite the defendant’s request that he be allowed to examine the accomplice’s statements. The trial court dismissed the defendant’s motion for post-conviction relief, but the Maryland Court of Appeals held that the prosecution’s conduct was a denial of due process of law. On certiorari, the United States Supreme Court affirmed, stating:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

373 U.S. at 87, 83 S.Ct. at 1196.

In the case sub judice, during the sentencing hearing, appellant filed a demand for exculpatory evidence seeking to discover any possibly mitigating information known to the state. When defense counsel asked, in court, whether the lack of any response to the demand could be interpreted to mean that there was no Brady-type evidence known to the state, the prosecutor responded:

I’m not going to say one way or another, Your Honor, I don’t think Brady applies to the sentencing proceeding, it certainly doesn’t apply.
I can certainly tell the Court that at least, off the top of my head, I can’t think of anything that would go to mitigating this Defendant’s previous sentence of death. But, I don’t intend to indicate that I do think Brady versus [v.] Maryland applies, you know, in answering this particular motion.

Appéllant contends that the prosecutor’s “casual dismissal of appellant’s request without any review of his files violates the principles enunciated in Brady."

Initially, we note that the Brady rule is applicable at the sentencing phase of a trial as well as the guilt determination phase. In Brady, the Court prohibited the withholding of evidence “material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. at 1197 (emphasis added). Evidence relating to punishment includes that evidence introduced at the sentencing phase of a trial.

The Brady opinion also noted as follows: “A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant.” 373 U.S. at 87-88, 83 S.Ct. at 1196-1197 (emphasis added). Again, evidence which would tend to reduce the penalty imposed in a criminal trial includes the evidence introduced at the sentencing phase.

If the principles and goals upon which the Brady ruling was based are to be fulfilled, it must be applied to the sentencing as well as the guilt phase of a trial. The general request sub judice, however, was insufficient to trigger the Brady princi-pie. Nevertheless, the prosecutor stated he could not think of anything that might serve in mitigation. That he did not feel it necessary to review his file in order to reach this conclusion does not strike us as odd or improper.

Because the Brady request was not specific and the prosecutor adequately responded to the general Rrady-information inquiry, and because his answer was that he was aware of no such evidence, it was appellant’s burden to show that the state did possess some specific information. He has failed to do so, even in a speculative way, and thus we can find no shortcoming in the sentencing proceeding in that respect.

Having reviewed each of the issues on appeal, and finding that none warrant vacation of appellant’s death sentence, the same is hereby affirmed.

It is so ordered.

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


author: PER CURIAM. McDONALD, Justice, BOYD, Justice,

text:
    Allen Leroy ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 52771.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Rehearing Denied Nov. 2, 1982.

      Richard L. Jorandby, Public Defender and Margaret Good and Ellen S. Morris, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Anderson appeals his adjudication of guilty of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and vacate both the adjudication and sentence with directions that Anderson be allowed to plead anew.

In June 1976 Anderson stole the car and wallet of an employee of a treatment center in Washington State where Anderson had been staying. He then embarked on a coast-to-coast spree of robbery and murder which resulted in his pleading guilty to homicide charges in Minnesota and California, his pleading nolo contendere to a similar charge in Florida, his indictment for a murder in Virginia, and his suspected involvement in homicides in several other states.

After his arrest in California in October 1976, the Brevard County Sheriff’s Office learned that Anderson might be connected with the robbery-murder of a fruit stand operator in Brevard County. A Brevard County deputy interviewed Anderson in California in January 1977 and the next month, with another deputy, attended a press conference in Minnesota which Anderson called after pleading guilty to a murder charge in that state. Before leaving Minnesota, the two deputies met with Anderson and his attorney and taped their discussion regarding the possibility of Anderson’s pleading guilty to the Brevard County homicide if the state agreed not to seek the death penalty.

The deputies returned to Florida, and one of them testified before a grand jury which indicted Anderson for one count of first-degree felony murder. The two deputies returned to Minnesota in May 1977 in order to bring Anderson to Florida to stand trial. One of the deputies installed a tape recorder in their car specifically to record all conversations during the return trip, but, during the four-day auto ride, the recorder malfunctioned. Both deputies testified, however, that, commencing about the third day, Anderson talked freely and frequently of his criminal activities, including the Florida murder.

The state presented this testimony in a hearing on Anderson’s motions to suppress both his February and May statements and to dismiss the indictment. The trial court found the statements to be admissible and also refused to dismiss the indictment. On the following day, instead of going to trial, Anderson changed his plea to nolo conten-dere conditioned on the right to appeal the denial of his pretrial motions. The court accepted the plea and proceeded with the sentencing hearing with the jury which had already been selected for the trial. After hearing both sides’ evidence, the jury recommended the death penalty, with which the court concurred.

On appeal Anderson claims that the trial court erred in failing to suppress the statements he made in Minnesota and during the four-day ride to Florida. The state contends that Anderson should not be allowed to contest the trial court’s refusal to suppress those statements because, as a matter of law, a confession may not be considered dispositive of a case for purposes of a plea of nolo contendere. Brown v. State, 376 So.2d 382 (Fla.1979). We do not, and cannot, apply Brown to death cases. Section 921.141(4), Florida Statutes (1981), provides for an automatic review of a judgment of conviction and sentence of death. Additionally, Florida Rule of Appellate Procedure 9.140(f) provides that “[i]n capital cases, the Court shall review the evidence to determine if the interest of justice requires a new trial.” Anderson’s decision to plead nolo contendere may well have been prompted by the court’s failure to suppress his statements. Certainly, if the predicate for the judgment of conviction is substantially impaired by the inclusion of an inadmissible statement, it is proper and necessary for this Court, in a death case, to review the record and determine whether that statement was in fact inadmissible.

Turning to the merits of the suppression issue, Anderson contends that the deputies violated his sixth amendment right to counsel during the trip in obtaining his statement. We agree. After adversary proceedings have begun, an accused is entitled to the assistance of counsel. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Fla.R.Crim.P. 3.111, 3.160(e). See art. I, § 16, Fla.Const. The sixth amendment applies to critical stages of criminal proceedings, and an “accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967) (footnote omitted).

In the instant case Anderson had been indicted prior to the trip from Minnesota to Florida. Adversary proceedings against him, therefore, had already commenced. Moreover, the deputies knew that, during the trip, he had no counsel. Anderson’s Minnesota attorney ceased representing him when Anderson began serving his sentence in that state, and Anderson told the deputies that he expected to receive appointed counsel in Florida. The deputies’ acts deprived Anderson of his right to counsel.

Florida Rule of Criminal Procedure 3.130(b) provides that every arrested person shall be taken before a judicial officer within twenty-four hours of his arrest. Anderson’s four-day car ride obviously prevented that, and it is significant that the elicited statements came far after the time he normally would have appeared before a judicial officer with the attendant advice of rights and appointment of counsel. The state argues that Anderson waived his right to counsel and spoke freely during the trip. The record, however, shows no intentional relinquishment or abandonment of a known right or privilege.

We also agree that Anderson made the February statement during plea negotiations, which renders that statement inadmissible. Both Florida Rule of Criminal Procedure 3.172(h), currently in effect, and former rule 3.171(d), in effect when Anderson entered his plea, forbid admitting into evidence statements made during plea negotiations. The state argues that the discussion during which Anderson offered to plead guilty if the state would forego seeking the death penalty did not constitute plea bargaining because the deputies did not have the authority to negotiate a plea. Testimony at the suppression hearing, however, established that both Anderson and his attorney believed that they were bargaining for a plea and that the senior deputy had spoken with the state attorney by telephone regarding talking with Anderson. In his testimony at the hearing, the other deputy referred to the February discussion as “plea negotiations.” On the totality of the circumstances the deputies’ 'disavowal to Anderson and his Minnesota attorney that they could finalize a plea bargain on the spot does not remove the February statement from the process of plea negotiations.

The facts of this case demonstrate that Anderson actively sought to negotiate a plea agreement and did not merely make an admission. The February statement, thus, fits within the two-tiered analysis for determining whether a discussion should be characterized as a plea negotiation, as set out in United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978):

[FJirst, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the circumstances.

Id. at 1366. The cases relied on by the state involved unilateral offers by the individual defendants and are factually distinguishable from the instant case. We find that Anderson’s February statement meets the Robertson test and that the trial court erred in not suppressing that statement.

We hold that the state obtained Anderson’s May statements in violation of his sixth amendment right to counsel and that the February plea-negotiations statement is also inadmissible. The trial court erred in not suppressing these statements, and Anderson should be allowed to change his plea. We vacate the adjudication and sentence and direct the trial court to allow Anderson to plead anew in a new trial.

It is so ordered.

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

McDONALD, J., concurs with an opinion.

BOYD, J., dissents with an opinion, with which ADKINS, J., concurs.

McDONALD, Justice,

concurring.

I concur in the majority opinion. In addition I find that admitting the car ride statements into evidence violates article I, section 9 of the Florida Constitution which proscribes compelling a person to be a witness against himself. An involuntary statement is equivalent to a compelled statement, and a confession must be voluntary to be admissible. The trial judge found the May statements to have been given voluntarily and I do not doubt nor dispute that the final words spoken give it that appearance. Forgotten, however is the patent psychological persuasion that emanated from the prolonged contact of the defendant with his captors as they moved along the highways in a travelling cell for four days, interrupted only by late stops at night and Anderson’s delivery to a jail for a night’s housing. The deputies had assured Anderson that they would not hurt him, and they guaranteed and promised that he would be returned to Minnesota. His early resistance to talking about the crime failed and, toward the end of the trip, died into submission to talk. The deputies were prepared by having a tape recorder; all was planned. It is too much to accept that under these circumstances the confession was anything but compelled. For this additional legal ground the confession should be suppressed.

BOYD, Justice,

dissenting.

I dissent from the Court’s holding that appellant’s voluntary and spontaneous admissions of his guilt of the crime were inadmissible simply because he made the statements during a four-day automobile trip in the company of two sheriff’s deputies.

Appellant had conferred with counsel in Minnesota prior to his decision to return to Florida to face the charge of murder. At the start of the journey, the officers gave appellant the Miranda warning. That is, they advised appellant of his right to remain silent and to have an attorney present during questioning. Furthermore, they warned him that anything he might say would be used as evidence against him. Appellant waived, at least temporarily, the immediate right to consult with counsel about his case, when he decided to return and embarked upon the trip back to Florida. He later waived his right to remain silent when he told the deputies about his crime. Neither his fifth nor his sixth amendment rights were violated.

The fact that the officers attempted to record appellant’s statements on tape does not suggest, as the majority opinion implies, that they planned to interrogate him during the trip in violation of his right to have counsel present during questioning. The deputies knew from their experience that criminals sometimes spontaneously confess, and that a tape recording would add corroboration to the deputies’ testimony should the accused later deny his confession.

Before accepting appellant’s plea of nolo contendere, the trial court required of the state a minimal showing of the evidentiary basis for entering an adjudication of guilt upon the plea. The showing consisted of the statements appellant made during the trip from Minnesota to Florida in May, 1977, and a gasoline credit card receipt, bearing appellant’s fingerprint, showing that appellant was in Brevard County on the day of the murder. However, there were also other inculpatory statements of the appellant, sufficient to establish guilt, which the court had ruled admissible but which were not presented as part of the factual basis for acceptance of the plea. Because the record shows that there was other evidence, in addition to that found inadmissible by the majority, showing appellant’s guilt, the ruling on the May, 1977, statements was not “dispositive” of the case. Therefore, the majority’s holding that the May, 1977, statements were inadmissible is not a sufficient basis to reverse the adjudication of guilt entered upon appellant’s nolo plea. See Brown v. State, 376 So.2d 382 (Fla.1979); First Amendment Foundation, Inc. v. State, 364 So.2d 450 (Fla.1978); Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976).

Furthermore, I find that appellant’s other points on appeal are equally without merit and that the sentence of death was imposed in accordance with the law.

ADKINS, J., concurs.

      . Due to this holding, we do not address Anderson’s contention that Brown is so drastic a change in the law as to mandate reversal and the opportunity to plead anew in all types of criminal cases.

      . The state contends that only the prosecuting attorney can negotiate a plea. See 33 Fla.Stat. Ann. rule 3.171, comment, 246 (1975).

      . Stell v. State, 366 So.2d 825 (Fla. 4th DCA 1979); Blake v. State, 332 So.2d 676 (Fla. 4th DCA 1976); Wright v. State, 309 So.2d 215 (Fla. 3d DCA), cert. denied, 323 So.2d 273 (Fla.1975).

      . Notwithstanding our holding of inadmissibility of the February and May statements, we disagree with Anderson’s contention that an insufficient basis for issuance of the indictment exists. See Richardson v. State, 100 Fla. 835, 130 So. 718 (1930).

       Substantially the same as the fifth amendment to the United States Constitution.


author:
      PER CURIAM.
      ALDERMAN, Chief Justice,

text:
    Larry Eugene MANN, Appellant, v. STATE of Florida, Appellee.
    No. 60569.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Rehearing Denied Nov. 3, 1982.

      Jerry Hill, Public Defender and David A. Davis, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This is an appeal from a conviction of first-degree murder and a sentence of death. We have jurisdiction and affirm the conviction but vacate the sentence.

On November 4, 1980 ten-year-old Elisa Nelson was abducted while bicycling to school after a dentist’s appointment. Her bicycle was found later that day, and searchers found her body the following day. She died from a skull fracture and had been stabbed and cut several times.

The afternoon of the 4th Mann attempted to commit suicide. The police took him to a hospital where he stayed several days. On November 8th Mann’s wife, while looking in his pickup truck for his eyeglasses, found a bloodstained note written by Elisa’s mother explaining her daughter’s tardiness because of the dentist’s appointment. The police obtained a warrant to search Mann’s truck and home and arrested him on the 10th.

The jury convicted Mann of first-degree murder and recommended the death penalty. The trial court agreed with the recommendation, finding four aggravating factors and, possibly, one mitigating circumstance. On appeal Mann alleges one trial error and seven sentencing errors.

The claimed trial error is that the trial court should not have allowed into evidence the fact that several bloodstains found at the crime scene and on the seat of Mann’s truck matched the bloodtype of and had the same type of enzymes as the victim. Mann agrees that such evidence would normally be admitted as relevant, but in this case his bloodtype and type of enzymes are the same as those of the victim. He argues, therefore, that this evidence tends to prove nothing, particularly since he presented evidence that he had, prior to the homicide, bled profusely in the truck from an injury. He argues that, since it is equally as likely that the blood was his as that of the victim, the bloodstains in the truck were irrelevant and should have been excluded.

The court properly admitted this evidence. Relevant evidence is evidence tending to prove a material fact and is admissible, except as provided by law. §§ 90.401, 94.402, Fla.Stat. (1979). The bloodstained note had been found in the truck; the fact of blood in the truck had some relevance whether it came from the victim or from Mann. If it were the victim’s, it was evidence of her or her body being in the truck; if Mann’s, it could explain the blood on the note. Either theory tended to prove some connection between Mann and the victim.

In addition to this claimed trial error we have independently reviewed the record to assure ourselves of the propriety of the conviction. We find the conviction supported by competent, substantial evidence, free from substantive error, and affirm it.

Mann’s main arguments center upon the imposition of the death penalty. His first contention is that the trial judge allowed inadmissible testimony in connection with a prior felony conviction in Mississippi to be introduced into evidence, compounded that error when he found that Mann had been convicted of a burglary during the course of which he used violence, and then used that fact as an aggravating factor in his sentencing order.

One of the aggravating circumstances that a trial judge may consider in determining whether or not to impose the death penalty is set out in section 921.141(5)(b), Florida Statutes (1979): “The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” Mann had been convicted in Mississippi of the crime of burglary, an offense that, standing alone, would not fall within the foregoing definition. Lewis v. State, 398 So.2d 432 (Fla.1981). See Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

The facts adduced at the sentencing phase of the trial showed that during that burglary the defendant committed a sexual battery upon the occupant of the house he burglarized. Had he been convicted of that sexual battery, the aggravating factor would apply. We must determine whether on sentencing it is proper, in an effort to prove conviction of a prior felony involving the use or threat of violence, to show what actually transpired when the conviction itself was for a crime which, by itself, is not a crime involving the use of violence. Must the conviction itself have inherently included a prior jury’s determination of violence, or is it enough to show a prior conviction and let the sentencing jury find, based upon the evidence, whether that prior conviction included violence? Section 921.141(5)(b) does not contain the “during which” language utilized by the trial judge. We are not presented with a copy of the Mississippi charge document and, thus, cannot determine whether it alleged, and the jury convicted him of, a breaking with intent to commit a crime of violence. The record of Mann’s conviction, as presented to this Court, does not disclose a conviction of a crime of violence. We hold that a prior conviction of a felony involving violence must be limited to one in which the judgment of conviction discloses that it involved violence. On the record in this case the trial judge improperly found prior conviction of a felony involving violence.

Another area of concern is the trial judge’s attention to Mann’s evidence in mitigation. This is particularly significant because it relates to the properly found aggravating circumstance of the crime being especially heinous, atrocious, and cruel. There is frequently a significant connection between the grossness of a homicide and the perpetrator’s mental condition. A psychiatrist testified that Mann’s mental condition was of such a nature that he was under the influence of extreme mental or emotional disturbance when he committed this atrocity and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. § 921.141(6)(b), (f). Although this witness was cross-examined, his opinions were neither rebutted nor contradicted by another witness. The trial judge’s reference to the testimony is:

The only mitigating circumstance apparent to the Court which is based solely upon the opinion of Dr. Alfred Fireman, a local psychiatrist, is that the defendant suffered from psychotic depression and paranoid feelings of rage against himself because of strong pedophilic urges.

From this we are unable to discern if the trial judge found that the mental mitigating circumstances did not exist. If so it appears that he misconstrued the doctor’s testimony. On the other hand, he may have found them to exist and weighed them against the proper aggravating circumstances. We, however, cannot tell which occurred. The trial judge’s findings in regard to the death sentence should be of unmistakable clarity so that we can properly review them and not speculate as to what he found; this case does not meet that test.

We also find that the trial court improperly found the homicide to have been committed in a cold, calculated, premeditated manner. § 921.141(5)(i). The state’s evidence failed to support finding this aggravating circumstance. See Jent v. State, 408 So.2d 1024 (Fla.1981). We find Mann’s other sentencing challenges to be without merit.

The conviction is affirmed, but the sentence is vacated. The trial court is directed to conduct a new sentencing proceeding without a jury.

It is so ordered.

OVERTON, SUNDBERG, McDONALD and EHRLICH, JJ., concur.

ALDERMAN, C.J., concurs in part and dissents in part with an opinion, with which ADKINS and BOYD, JJ., concur.

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

I concur with the affirmance of Mann’s conviction for first-degree murder, but I dissent to the reversal of his death sentence and the remand for a new sentencing hearing.

I believe the trial court properly found the aggravating circumstance that Mann was previously convicted of a felony involving the use or threat of violence to the person. This previous crime was described by the trial court as follows:

In 1973 the defendant was convicted of the crime of burglary in Mississippi during the course of which, through threats and actual physical force, he had the victim perform fellatio upon him resulting in his ejaculation in her mouth. That victim, Deborah Richards (now Deborah Johnson), was produced by the State to testify in the penalty phase of this trial as to the above facts. The force used involved choking, hair pulling and throwing the victim across the room. The defendant was sentenced to nine (9) years imprisonment and was paroled after serving four (4) years.

Although burglary will not necessarily be a crime of violence as contemplated by this aggravating circumstance, in the present case the State proved beyond a reasonable doubt that the felony of burglary for which Mann was previously convicted involved “the use or threat of violence.” The trial court, in its findings in support of the death penalty, clearly delineated an adequate factual basis for a finding of this aggravating circumstance. I disagree with the majority’s holding that this aggravating circumstance was improperly found to exist. It is not a necessary predicate to this aggravating circumstance that the judgment of conviction of the prior felony disclose that it involved violence as suggested by the majority. Rather, it is sufficient that the State prove beyond a reasonable doubt, as it did in this case, that the defendant was previously convicted of another felony and that while committing that felony the defendant used or threatened to use violence to another person.

The majority acknowledges that the trial court properly found as aggravating circumstances that the capital felony committed by Mann was especially heinous, atrocious, or cruel and that the murder was committed while Mann was engaged in a kidnapping. The majority, however, expresses concern about the trial court’s attention to Mann’s evidence in mitigation. It notes that there is frequently a significant connection between the grossness of a homicide and the perpetrator’s mental condition. In this case, the trial court, in support of its finding that this murder was especially heinous, atrocious, or cruel, explained that the victim, a 10-year-old girl, sustained a 3!/4-inch cut on the right side of her neck and a 4Vi-inch cut on the left side of her neck, which cuts produced great pain and severe bleeding and that the victim was conscious for at least several minutes before elapsing into unconsciousness due to loss' of blood. The court further stated that death was produced as the result of a massive skull fracture caused by blunt trauma. This was a proper finding. The heinousness, atrociousness, or cruelness of Mann’s acts is determined on the basis of what Mann did and its effect on the victim. Diminished mental capacity does not abrogate this aggravating factor. A legally sane but mentally ill defendant who commits an especially heinous, atrocious, or cruel murder will have this aggravating factor weighed against him even though his mental illness contributed to the heinousness, atrociousness, or cruelness of his actions. Evidence of his mental condition is only to be considered in determining whether a mitigating circumstance is proven. Such evidence is not relevant in determining whether the murder is especially heinous, atrocious, or cruel.

In the present case the trial court considered the evidence offered in mitigation as to defendant’s mental or emotional disturbance and expressly found as the sole mitigating factor that Mann suffered from psychotic depression and paranoid feelings of rage against himself because of strong pedophilic urges. It then weighed this mitigating factor against the aggravating factors and found that the aggravating factors far outweighed the mitigating.

Even if the trial court’s finding that this murder was committed in a cold, calculated, and premeditated manner was not proven beyond a reasonable doubt by the State, as the majority holds, the elimination of this aggravating factor from the weighing process does not require a reversal of the death sentence. The court validly found that Mann had been previously convicted of another felony involving the use or threat of violence to the person, that the murder was committed while Mann was engaged in a kidnapping, and that the murder was especially heinous, atrocious, or cruel. These aggravating circumstances, coupled with the jury’s recommendation of death, are more than sufficient to outweigh the very weak mitigating circumstance found in this case and to warrant imposition of the death penalty. This case should not be remanded for resentencing.

I not only would affirm Mann’s conviction but also would affirm his sentence of death.

ADKINS and BOYD, JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.

      . Prior conviction of violent felony; felony murder; heinous, atrocious, and cruel; and cold, calculated, and premeditated.

      .Psychotic depression and paranoid feelings of rage.

      . Such as a conviction under § 810.02(2)(a), Fla.Stat.