author: DeCARLO, Judge.

text:
    Paul Douglas HOLLANDER v. STATE.
    8 Div. 662.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      Rodney B. Slusher of Peek & Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Third degree burglary; twenty years and one day.

Mrs. Gladys Thrasher’s house in Sheffield, Alabama, was broken into on October 23,1980. The back door was “jimmied” and two wedding bands, a simulated diamond set, some two dollar bills, and “a whole bunch” of old silver coins were taken. Mrs. Thrasher reported the burglary at approximately 3:00 p.m.

Lt. Doug Aycock of the Sheffield Police Department testified that at approximately 2:30 p.m. he received information that appellant was attempting to sell some old coins at the local pool hall. When Mrs. Thrasher reported the break-in at her house and the missing coins, Aycock began searching for appellant. Lt. Aycock located appellant at his home around 5:00 p.m. the same day. Appellant and a companion, James Gargis, were taken to the police station for questioning.

While he was questioning Gargis, Aycock observed appellant hiding something beneath the cushion of the chair in which he was sitting. Aycock searched the chair pri- or to questioning appellant and recovered two wedding bands. These were later identified by Mrs. Thrasher as two of the rings taken from her house.

Lt. Aycock testified that he advised appellant of his rights by reading appellant the Miranda warnings from a printed form. Appellant was given an opportunity to read these himself prior to signing the waiver of rights at the bottom of the form. After appellant signed the waiver of rights, Lt. Aycock requested appellant’s permission to search his house. Appellant agreed to this and signed a form entitled “Form for Consent to Search.” Aycock stated that he read this form to appellant and also gave appellant an opportunity to read it before appellant signed the form. The waiver of rights form was signed at 5:20 p.m. The consent to search form does not state the time it was signed.

Aycock and another officer then returned to appellant’s house and found, in appellant’s bedroom, a clear plastic box containing old coins. Mrs. Thrasher later identified the box and its contents as her property. Aycock returned to the police station with the box of coins and questioned appellant about them. At that time, appellant gave an oral statement.

According to appellant, he had been with one Bobby Barnett around 11:00 a.m. that day. Barnett had gone to a house on the corner of Frankfort Avenue and Sixth Street. He returned approximately five minutes later and gave appellant two rings and “a handful” of old coins. Appellant stated that Barnett told him “to get rid of it” and that he [Barnett] would give appellant half of the money. Aycock reduced this statement to writing, and it was typed up by a secretary. The statement was then read to and signed by appellant.

Lt. Aycock stated that appellant gave this statement around 6:30 or 7:00 p.m. He further testified that no promises or threats were made to induce appellant to sign the waiver of rights, the consent to search, or the statement. He stated that appellant did not appear to be under the influence of alcohol or drugs, and that appellant appeared to understand the nature of each document.

I

Appellant contends that his consent to the search of his house was not voluntarily given, and, therefore, the trial court erred in denying his motion to suppress both the consent to search form and the evidence seized during the search.

When relying on consent to justify a search, the burden is on the State to show that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The trial court is in the best position to determine the voluntariness of the consent, Scott v. State, 409 So.2d 978 (Ala. Crim. App. 1981), and is to make this determination from the totality of the circumstances involved. Schneekloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

From the evidence adduced by the State, we think the trial court was correct in finding that appellant’s consent was voluntary. Appellant was informed of his Miranda rights and signed a waiver of those rights. He was informed of the object of the search before he consented. No threats or promises were made to appellant, nor was he told that he had to consent. In fact, the consent to search form read to and signed by appellant stated that he had the right to refuse to consent to the search.

Appellant asserts that his consent was not voluntary because he was not advised that he had a right to consult counsel before consenting to the search nor informed that anything found during the search could and would be used against him. While these may be factors to be considered in deciding whether consent was voluntarily given, see United States v. Smith, 543 F.2d 1141 (5th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977), where Miranda warnings have once been given, repeated specific warnings of Fourth Amendment rights are not necessary to obtain a valid consent to search. United States v. Jones, 475 F.2d 723 (5th Cir.), cert. denied, 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973). See United States v. Smith, supra; Behel v. State, 390 So.2d 662 (Ala. Crim. App. 1979), cert. denied, 390 So.2d 671 (Ala. 1980); Barclay v. State, 368 So.2d 579 (Ala. Crim. App.), cert. denied, 368 So.2d 581 (Ala. 1979).

II

Appellant maintains that his statement should have been suppressed because it was not voluntarily given. He emphasizes the fact that he was not re-advised of his Miranda rights prior to giving the statement.

It is well settled that once Miranda warnings have been given and a waiver made, a failure to repeat the warnings before a subsequent interrogation will not automatically preclude the admission of an inculpatory response. Fagan v. State, 412 So.2d 1282 (Ala. Crim. App. 1982); Smoot v. State, 383 So.2d 605 (Ala. Crim. App. 1980). Whether the Miranda warnings must be repeated depends on the facts of each individual case, with the lapse of time and the events which occur between interrogation being relevant factors to consider. Fagan v. State, supra; Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972).

In this case, the time lapse between the Miranda warnings and appellant’s statement was one to one and three-quarters hours. In the intervening time period, the officers were searching appellant’s house with appellant’s knowledge and consent. Under these circumstances, we are of the opinion that repeated Miranda warnings were not necessary. See Fagan v. State, supra.

Appellant also contends that his statement was inadmissible because it was the product of an illegal search. As we have previously determined that the search of appellant’s house was legal, no discussion of this argument is needed.

Ill

At appellant’s sentencing hearing, the State introduced evidence of appellant’s six prior felony convictions and requested that appellant be sentenced as an habitual offender. Appellant’s attorney stated that he had no objection to the admission of the evidence and, further, stated that he was aware of the prior convictions. The trial judge accepted the State’s recommendation and sentenced appellant to thirty years. After a hearing on appellant’s motion to reconsider the sentence, this sentence was reduced to twenty years and one day.

Appellant now contends that the Habitual Offender Act was improperly applied in enhancing his punishment because he did not receive written notice at a reasonable time prior to the sentencing hearing that the State intended to invoke the Habitual Offender Act. Although we recognized that “written notice appears to be the form of notice presumed proper,” Hollins v. State, 415 So.2d 1249, 1254 (Ala. Crim. App. 1982), written notice is not required by Rule 6(b)(3)(H), Alabama Rules of Criminal Procedure, Temporary Rules.

It appears that some sort of notice was received by appellant as his counsel stated at the hearing:

“[A]lthough there was no written notice or notice given to myself or Mr. Hollander prior to the trial, that he was to be tried as a habitual offender, I do understand now that the State is asking that he be treated as a habitual offender for purposes of sentencing.” [Emphasis added]

The trial court correctly noted at that point that notice prior to trial is not required. Holley v. State, 397 So.2d 211 (Ala. Crim. App.), cert. denied, 397 So.2d 217 (Ala. 1981). However, no objection was made on this or any other ground to appellant’s treatment as an habitual offender. See Thompson v. State, 405 So.2d 717 (Ala. Crim. App.), cert. denied, 405 So.2d 721 (Ala. 1981). The trial court will not be placed in error on appeal for grounds not specified during the sentencing hearing. Smith v. State, 409 So.2d 455 (Ala. Crim. App. 1981).

For the reasons stated above, the judgment of the Colbert Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Dwight ALEXANDER v. STATE.
    8 Div. 700.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      David L. Thomas, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

This is a vehicular homicide case. The appellant was indicted under Ala. Code § 13A-6-2 (Supp. 1977) for causing the death of another person while recklessly engaging in conduct which created a grave risk of death to a person other than himself under circumstances manifesting extreme indifference to human life. The appellant was charged specifically with causing the death of Robert Forgey, Jr. by his operation of a motor vehicle while under the influence of intoxicating liquors or narcotic drugs. The appellant was convicted of the lesser included offense of manslaughter and the trial court fixed his punishment at eight years’ imprisonment in the State penitentiary.

The sufficiency of the State’s evidence is not challenged on this appeal. Without narrating the evidence in detail, it appears that at approximately 9:00 p.m. on June 25, 1981, Huntsville police officers received a “fight call” and proceeded to 115-B Long-wood Court in Huntsville to answer the disturbance. (R. 11, 36, 101) Arriving at that location the police officers saw appellant running to his Pontiac automobile carrying his two and one-half month old son in his arms. Appellant left at a high rate of speed, “throwing gravel all over the parking lot,” and passed one of the officers in the process. (R. 36, 101)

The officers lost sight of appellant’s Pontiac but followed the direction he had taken on Gallatin Street toward the Huntsville Hospital. Running red lights along the way, appellant continued driving at a high rate of speed until his Pontiac collided with a Datsun B-210 at the intersection of Galla-tin Street and Saint Clair. The Datsun was attempting to turn from Saint Clair onto Gallatin at the moment of impact. The Datsun was occupied by Brett Smith, the driver, and his friends Jimmy Strickland and Bob Forgey, the victim. The victim was taken to Huntsville Hospital and placed in' intensive care, but died later as a result of the head injuries he had received.

All three of the young men had been drinking beer prior to the fatal collision; however, Smith testified that his driving ability had not been impaired from the amount of alcohol he had consumed. Both Smith and Strickland were certain that the traffic light in their turn lane on Saint Clair was green when appellant hit them. Another witness, Mark Taylor, who was unavailable to testify at appellant’s trial, but who had earlier testified at the preliminary hearing, confirmed that appellant “ran the red light” at the time of impact. (R. 162)

Appellant’s Pontiac traveled through the intersection about one hundred feet after the collision and appellant was seen exiting the car, infant in arms, running toward the Huntsville Hospital Emergency Room. Officer Ivan Fello entered the emergency room a “few seconds” after appellant. (R. 15) According to Officer Fello, appellant “was hollering; he wanted help for his baby, said his baby had been hurt.” (R. 15) It was determined that appellant’s infant son was not very seriously injured.

Officer Fello described appellant as being “highly intoxicated” “[Tjhere was a strong odor of alcoholic beverages on his breath. He was boisterous, loud and his speech was slurred to a degree.” (R. 17) Officer Fello continued to stay with appellant at the hospital until he was placed under arrest one and a half to two hours later.

Other Huntsville police officers, as well as registered nurse Martha McKelvey, also saw appellant in the emergency room and testified that he was “intoxicated.” (R. 48, 106, 114). “[H]is eyes were bloodshot, his speech was slurred and there was a strong odor that appeared to be an alcoholic beverage on his breath.” (R. 43) “His condition, he had the smell of alcohol on his breath and he also was acting like he was addled. I don’t know if it was from the accident or whatever and he didn’t act too concerned about the accident itself.” (R. 106) Laboratory-analysis revealed that the ethyl alcohol content in appellant’s blood over an hour after the collision was .19 percent.

Appellant testified in his own behalf that on the evening in question he and his wife had had a “disagreement” and that as he had “assisted her to sit down” they both fell onto the couch where the baby was lying. (R. 174, 178) Fearing that his infant son had been injured, appellant “calmly left the parking lot” headed for the hospital “at a slow rate of speed.” (R. 179) Appellant maintained that he had consumed “two or three beers” prior to driving to the hospital and that he tried “to miss the vehicle (Dat-sun) but I couldn’t ... because it was coming too fast.” (R. 175, 176)

I

During the time Officer Fello was present in the emergency room with appellant, one of the doctors advised Fello that the victim involved in the collision was “slowly dying.” (R. 33) Officer Fello testified, over objection, that when he related this information to appellant “the man smiled.” (R. 33) Appellant maintains that it was reversible error in violation of his Fifth Amendment privilege against self-incrimination to admit evidence of his facial expression. Relying on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), appellant contends that Officer Fello’s “communication” amounted to a custodial interrogation which required that the Miranda warnings be given. We disagree.

Assuming that appellant was in custody at the time Officer Fello related to him the information about the victim from the doctor, as he alleges, the Supreme Court of the United States in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), makes it clear that the special procedural safeguards outlined in Miranda are not required simply where a suspect is taken into custody, but where a suspect in custody is subjected to interrogation. “ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” 446 U.S., at 300, 100 S.Ct. at 1689, 64 L.Ed.2d, at 307.

As the Supreme Court stated in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966): “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The Court in Innis concluded that:

“the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” 446 U.S., at 300-301, 100 S.Ct. at 1689-1690, 64 L.Ed.2d, at 307-308.

Applying the foregoing principles of law to the facts in this case it is clear that appellant was not “interrogated” within the meaning of Miranda. He was not subjected to express questioning, nor can it fairly be said that he was subjected to the “functional equivalent” of questioning. Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (1972) and authorities cited therein.

Given the fact that the entire “conversation” consisted of one statement by Officer Fello, we cannot say that the officer should have known that it was reasonably likely that appellant would so respond. As in Innis, this is not a case where police officers carried on a lengthy harangue in the presence of the suspect. Nor does the record support appellant’s contention that, under the circumstances, Officer Fello’s comment was particularly evocative. In our opinion, the statement made by Officer Fello did not even reach the level of “subtle compulsion,” which the Court in Innis held could not be equated with “interrogation.” 446 U.S., at 303, 100 S.Ct. at 1690, 1691, 64 L.Ed.2d, at 309.

While the fact that appellant “smiled” upon being informed that the victim was “slowly dying" may have given the jury the impression that appellant was callous in his concern for the victim, it cannot be said that Officer Fello could have reasonably anticipated this response. Appellant’s “smile” could just as easily have been seen as a further demonstration of his degree of intoxication, rather than his unconcern. Be that as it may, we do not find that appellant’s Fifth Amendment privilege against self-incrimination was violated in this instance.

II

We have carefully reviewed appellant’s contention that the prosecution did not exercise good faith in attempting to locate the unavailable witness, Mark Taylor, an eye-witness to the collision, and have found it to be without merit. It is clear that the requisites set out in Anderson v. State, 362 So.2d 1296, 1301 (Ala. Cr. App. 1978) for the introduction of Taylor’s preliminary hearing testimony were met. Before Taylor’s preliminary hearing testimony was read into evidence, the trial court conducted a voir dire hearing to determine what attempts had been made to locate the witness and have him available for trial.

Larry Smith, an investigator for the District Attorney of Madison County, listed the following steps he took in attempting to locate the witness Taylor for trial:

“Q Could you detail for the Court, please, what steps you have taken in the attempt to locate Mr. Taylor?
“A After the preliminary hearing and prior to the first time the trial was set, Mr. Taylor was staying with a friend here in Huntsville and prior to that trial I called up and was advised by that friend that Mr. Taylor had come in one afternoon, packed his bags and left without leaving any forwarding address or place where he could be reached.
“I continued to check to see if that was still true and it was. I called — Mr. Taylor had domestic relations cases in Birmingham and I called the Department of Pensions and Security in Birmingham, obtained two numbers of relatives in Mississippi and Georgia and called them and they had not seen or heard from Mr. Taylor. In addition, as late as last Thursday, I called the friend he was staying with and he said that the last time he had seen or heard from Mr. Taylor was sometime last Fall when he came in and packed his bags and left.
“Mr. Taylor advised us that he was a carpenter. I tried unsuccessfully to contact people at the carpenter’s union hall to see if he had left for any jobs but I couldn’t find anyone to answer my questions there.
“Q Are you aware, in your employment with the District Attorney’s Office, that Mr. Taylor has pending child support cases in our office?
“A He does.
“Q Did you make an investigation as to whether or not they had been able to locate him?
“A I did, and the child support investigator advised me he had not been seen for a period consistent with about the last three months. Also, I checked NCIC and with what information I had and nothing came back.
“Q Are you aware of any forwarding address, or any other addresses by which you could come into contact with Mr. Taylor?
“A None whatsoever.
“Q Have you made contact with every one of his known relatives that you could reach in the State of Alabama and in other states?
“A They were made known to me, or identified to me as being relatives; they were in-laws, is what they were identified to me as.” (R 145-146)

Mrs. Diane Smith, an employee in the Madison County Circuit Clerk’s office, testified that a subpoena was issued twice for Taylor’s attendance at trial and was mailed to his address on “14th Street.” The subpoena was returned not found on both occasions. Mrs. Smith testified that no change of address was listed for Taylor.

Taylor’s probation officer T. C. Bill testified that Taylor was currently a delinquent probationer.

“When Mr. Taylor did not report to our office as instructed, I phoned the residence at 2103 14th Street and talked to a Mr. Thomas who, during the months of September and October, 1981, was living in the residence, a rental, at that time. He stated that Mr. Taylor had moved out of the residence, lock, stock and barrel, gave me the name and address and phone number of an employer and I contacted them and they said that Mark Taylor had never been employed by them at all. “One evening I went by the residence at 2103 14th Street and again talked to Mr. Thomas and he stated that he had not seen Mr. Taylor in over thirty days; had no idea where he was, or anything of that nature. Based on that information I filed the appropriate report with the court in Birmingham.” (R. 157)

Mr. Bill stated that a warrant was currently outstanding for Taylor’s arrest for being a delinquent probationer. At the conclusion of Mr. Bill’s voir dire examination, the trial court determined that Taylor’s testimony at the preliminary hearing was admissible and allowed it to be read into evidence.

Besides providing an eye-witness account of the incident, Taylor testified at the preliminary hearing that his address was “2103 Fourteenth Street, Southwest here in Huntsville.” (R. 161) Furthermore, we note that Taylor was subjected to a rigorous and thorough cross-examination con-corning his recollection of the events by defense counsel, the same counsel who represented appellant at trial and who now represents him on this appeal.

As in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), defense counsel’s questioning of Taylor partook of cross-examination as a matter of form and also comported with the principal purpose of cross-examination:

“To challenge ‘whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the de-clarant’s intended meaning is adequately conveyed by the language he employed.’ ” 100 S.Ct., at 2541

Thus, we have no difficulty in finding that Taylor’s prior testimony bore an adequate “indicia of reliability” to be admitted. The Supreme Court in Roberts, supra, quoting from California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) reaffirmed that:

“Since there was an adequate opportunity to cross-examine [the witness], and counsel ... availed himself of that opportunity, the transcript . .. bore sufficient ‘indicia of reliability’ and afforded ‘the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ ” 100 S.Ct., at 2542, 2543

As to the issue of Taylor’s unavailability, by applying the principles enunciated in Roberts, supra, and authorities cited therein, to the facts in this case which are set out above, there can be no question that the State made a good-faith effort to obtain Taylor’s presence at trial. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Roberts, 100 S.Ct., at 2543; California v. Green, 90 S.Ct., at 1951. The law does not require the doing of a futile act. Roberts, supra. And while the State might have undertaken other steps in an effort to find Taylor, “[o]ne, in hindsight, may always think of other things.” 100 S.Ct., at 2544.

In conclusion we find that the State carried its burden of demonstrating that Taylor was constitutionally unavailable for purposes of appellant’s trial.

We have carefully examined the issues raised by appellant and have found no error prejudicial to his substantial rights. The circuit court’s judgment of conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.

      . “A nod or head-shake is as much a ‘testimonial’ or ‘communicative’ act in this sense [for Fifth Amendment purposes] as are spoken words.” Footnote 5, Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908.


author: ADKINS, Justice.

text:
    Willie Clayton SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 49681.
    Supreme Court of Florida.
    April 8, 1982.
    Rehearing Denied Sept. 15, 1982.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

We have before us a direct appeal from a judgment imposing the death sentence upon Willie Clayton Simpson. Jurisdiction is pursuant to article V, section 3(b)(1), Florida Constitution.

The facts are that officer John Kennedy of the Delray Beach Police Department was shot to death during the early morning hours of August 10, 1974. Appellant was indicted for the murder of officer Kennedy and was found guilty by a jury of first-degree murder on March 10, 1976. The jury subsequently returned an advisory sentence of death. On May 17, 1976, appellant was adjudicated guilty and sentenced to death.

Appellant raises numerous issues on appeal, however, we find one to be disposi-tive of the entire matter. Appellant argues that it was harmful error for the prosecutor to elicit from him during cross-examination, testimony concerning his failure to testify before the grand jury investigating this crime, and that the prosecutor’s reference during closing argument to such failure to testify was equally harmful.

We agree. The position of this Court with respect to the Fifth Amendment right to silence is quite clear. In the case of Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), the district court quoted from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as follows:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." [Emphasis supplied.] “No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.”

200 So.2d at 576.

We cited Jones in Bennett v. State, 316 So.2d 41 (Fla.1975), and used it as the basis for our decision. In Bennett, the defendant moved for a mistrial because a state witness told the jury that defendant refused to sign a waiver of his Miranda rights. The trial court denied the motion and instructed the jury tc disregard the improper testimony. We held this to be reversible error for the reasons discussed in Jones.

In Willinsky v. State, 360 So.2d 760 (Fla. 1978), defendant was on trial for the unlawful possession and sale of cocaine. During cross-examination of the defendant the prosecutor made what was an obvious comment on defendant’s failure to testify at a preliminary hearing. We said in Willinsky that:

Impeachment by disclosure of the legitimate exercise of the right to silence is a denial of due process. It should not be material at what stage the accused was silent so long as the right to silence is protected at that stage. The language in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), although set in the context of silence at arrest, reflects a general policy. The essence of these holdings is that impeachment by disclosure of the exercise of the right to silence is a denial of due process. The general terms used by the Supreme Court of the United States are not limited to arrest, but apply at any stage where the right to silence is protected.

360 So.2d at 762.

Appellee argues that the issue of the prosecutor’s improper comments on defendant’s right to remain silent is waived because it was not properly preserved for appellate review. Two bases are given for this argument: 1) Clark v. State, 363 So.2d 331 (Fla.1978), holds that as a matter of law, without a motion for mistrial, appellate review of the instant issue is waived; and 2) appellant did not litigate the precise ground argued herein in support of his objection.

As to the first basis, Justice Alderman made very clear in Clark that we were considering the effect of the defendant’s failure to object. This issue was not decided' in Bennett or Willinsky, where timely objection had been made to the improper comments. There is no question in the instant case about whether there was a timely objection. The trial record discloses the following exchange:

BY MR. HARPER:
Q And when Jimmy Lee Harold came to court, did you testify in that ease? A No.
MR. STARR: Now we object to this. It’s immaterial, irrelevant and—
THE COURT: Overruled.
BY MR. HARPER:
Q Did you refuse to testify in that case?
A Yes, I did.
Q Did you refuse because you wanted immunity?
MR. STARR: We object to this.
******
MR. HARPER: Jimmy Lee Harold was arrested, and he was taken to court, and you heard that testimony. And when this man was called as a witness, he said, “I will not testify against him unless you give me immunity in this case.”
MR. STARR: I object to that part of the argument. It’s not part of the case. There’s no such testimony in this record that this defendant begged for immunity—asked for immunity. He said he took the Fifth Amendment, which he has every right in the world under the Constitution of both the State and the United States to do. But there was nothing in the record of any immunity that he asked for, and we ask the Court to instruct the jury not to consider that in this argument.
THE COURT: The motion is denied. Proceed.

Under these circumstances, where clearly a timely objection to the improper comment was made by defense counsel, and where the judge unequivocally and without hesitation overruled the objections, the issue of the admission of such testimony and comments before the jury is properly preserved for appeal. It is evident that a motion for mistrial at either juncture in the trial where defense counsel’s objections were overruled would have been futile. To require such a motion would be to place form above substance and would seriously hinder the administration of justice. We should seek to avoid, not foster a hypertechnical application of the law.

Clark held that a contemporaneous objection is necessary. The rule is clear that if the defendant at the time the improper comment is made fails to object, his right to object is waived and he may not raise that issue on appeal.

The secondary issue in Clark was what happens if there is a contemporaneous objection and the trial court finds that there has been an improper comment and sustains the defendant’s objection. In that event, the rule is also clear. The defendant must move for mistrial if he wishes to preserve his objection, and he will not be allowed to await the outcome of the trial with the expectation that, if he is found guilty, his conviction will be automatically reversed.

But what happens, as in the present case, where the defendant’s contemporaneous objection is overruled by the trial judge? In Clark we said:

When an objection and motion for mistrial are made, the trial court must determine whether there was an improper comment on the defendant’s exercise of his right to remain silent. If the court finds that there was not, the objection should be overruled. In that event, the objection is preserved, and if the defendant is convicted, it may be raised as a point on appeal.

363 So.2d at 335.

This is a correct statement of the law as far as it goes, but it does not tell us what happens if the defendant’s objection is overruled and he does not ask for a mistrial. The reason for requiring the defendant to contemporaneously ask for a mistrial when his objection has been sustained does not exist when his objection has been overruled. In overruling his objection, the trial court determines that there was not an improper comment on the defendant’s exercise of his right to remain silent. Having made that determination, there would be no basis for the trial court to grant a mistrial even if the defendant were to ask for one. At that point, the defendant, by his contemporaneous objection, has done all that he is required to do to bring the alleged error to the attention of the trial court. No purpose would be served by requiring a futile motion for mistrial after the trial court has already overruled the defendant’s contemporaneous objection. In that situation, the objection is preserved, and if the defendant is convicted, it may be raised as a point on appeal.

In the present case, the defendant’s timely objections to the improper comments were overruled. For the reasons stated above, it was not necessary that he also move for mistrial. His objections were preserved, and since the improper comments constitute reversible error, he is entitled to a new trial.

As to appellee’s second basis, that appellant did not litigate the precise ground argued here in support of his objection at trial, we find no support for this position in the record. Defense counsel adequately set forth at trial the grounds argued herein.

We hold that where a timely objection is made to an improper comment concerning defendant’s right to remain silent, and the objection is overruled, thus rendering futile a motion for mistrial, the issue of the admission of such comment is properly preserved for appeal.

The decision of the circuit court is reversed and remanded for the purpose of granting a new trial.

It is so ordered.

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


author: PER CURIAM.

text:
    Douglas Ray MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 59958.
    Supreme Court of Florida.
    June 17, 1982.
    Rehearing Denied Sept. 13, 1982.
    Stephen D. Stitt and June Rice, Gaines-ville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a denial, after evidentiary hearing, of appellant’s post-conviction relief motion under Florida Rule of Criminal Procedure 3.850, asserting ineffective assistance of trial counsel. Appellant was convicted of a convenience store armed robbery, at which he and an accomplice forced a store clerk and customer to lie on the floor. Appellant then fired five execution-type shots, killing the customer but, fortunately, only wounding the clerk, who later testified that appellant was the one with the gun.

This is the fourth occasion that this case has appeared before this Court. The initial trial, in March, 1975, was one of the first death cases tried under the newly approved death sentence procedures. We have detailed the facts of this case in our three prior reviews. In Meeks v. State, 339 So.2d 186 (Fla.1976), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978), we reviewed appellant’s trial on the merits and affirmed his conviction and sentence of death. In Meeks v. State, 364 So.2d 461 (Fla.1978), this Court reaffirmed the imposition of the death sentence, after a remand for resentencing in order to comply with the dictates of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The Gardner violation was discovered after the original opinion issued. In Meeks v. State, 382 So.2d 673 (Fla.1980), we found the allegations contained in that part of appellant’s 3.850 motion relating to ineffective assistance of counsel required an evi-dentiary hearing, and we remanded for that purpose. It is the review of that proceeding which is now before us.

Appellant contends that his trial counsel was ineffective, claiming (1) that counsel conducted inadequate jury voir dire and failed to seek and obtain additional preemp-tory challenges; (2) that counsel improperly allowed the prosecutor to present evidence relating to appellant’s codefendant and failed to properly pursue a strategy of establishing the codefendant’s greater culpability; and (3) that appellant’s original trial counsel was unprepared for the sentencing phase of the proceeding.

The trial court, in denying the relief requested, made the following findings:

From the vantage point of hindsight of five years, defendant, through his present counsel, assaults the conduct of his defense by his former counsel. Although told that his former counsel was present for testimony, defendant did not choose to call him to explain his conduct of the trial and appeal. The State did not call former counsel. Nor did the Court. Thus, counsel whose conduct of the trial and appeal is in question did not testify.
Both defendant and the State did call attorneys to testify as expert witnesses. Opinions were expressed by them as to trial counsel’s effectiveness. Defendant also made proffers as to racial attitudes in Taylor County as they existed at trial time and at the present as well as concerning defendant’s background. Upon consideration, the court finds that the greater weight of the evidence does not support defendant’s contention that he did not receive reasonably effective assistance of counsel.
Tactics and strategy of counsel at trial, just as tactics and strategy of counsel at the instant evidentiary hearing, are areas that the trial judge could frequently be tempted to question. The court attempts to refrain from doing so lest it usurp counsel’s role.
Upon consideration of the evidence, the court finds that defendant received reasonably effective assistance of counsel at trial and upon appeal based upon the totality of the circumstances of these cases.

We affirm the ruling of the trial judge.

With reference to the asserted criticisms of trial counsel’s conduct at jury selection, it must be recognized that the methods of jury voir dire are subjective and individualistic. Many experienced trial lawyers have a strong belief in short voir dire examinations. Conversely, others conduct as extensive an examination as the trial judge will allow. The views of what constitutes the best tactical approach are divergent, and the manner of the examination varies from community to community. What might be appropriate in Palm Beach or Fort Lauderdale may be unacceptable in Pensacola or Marianna. We find this record does not establish any identifiable deficiencies in appellant’s trial counsel’s voir dire examination; nor do we find his asserted failure to ask for additional peremptory challenges an erroneous omission by counsel necessitating a conclusion of ineffectiveness.

We also reject the second contention that appellant’s trial counsel was deficient by allowing evidence of the codefendant’s participation in the crime. It clearly appears that defense counsel attempted to make the codefendant the more dominant participant. In fact, appellant’s next assertion of deficiency is that defense counsel did not do enough to establish the dominance of his codefendant, both in the trial on the merits and in the penalty phase. This argument, to be valid, must as a predicate establish the codefendant as the undisputed dominant individual. That fact has not been established in the instant case. We recognize that the dominant individual in a mul-ti-party murder constitutes an important element, particularly where one participant receives the death sentence and the other, as in the instant case, receives only a life sentence. However, we have examined the total record in this cause and conclude that it reflects the codefendant was not the dominant force. We conclude that appellant’s trial counsel provided reasonably effective assistance of counsel under the instant circumstances.

We reject the third assertion that defense counsel did not properly represent appellant in the sentencing phase of these proceedings. Appellant argues that trial counsel six years ago should have known what the law would be at this time. This is clearly without merit. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Knight v. State, 394 So.2d 997 (Fla. 1981).

We find that appellant has failed to show that the asserted deficiencies of his trial counsel meet the requirements set forth in Knight v. State. As we said in Knight, “the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” Id. at 1001. This, appellant has not done. The trial judge properly denied the motion for post-conviction relief, and we, accordingly, affirm.

It is so ordered.

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

       This decision should not be confused with Meeks v. State, 336 So.2d 1142 (Fla.1976), which concerns a review of an entirely independent murder conviction and sentence of death.


author: ALDERMAN, Chief Justice.

text:
    Eldred Lonnie MOODY, Appellant, v. STATE of Florida, Appellee.
    No. 52907.
    Supreme Court of Florida.
    July 15, 1982.
    Rehearing Denied Sept. 14, 1982.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Richard B. Greene and Jon A. May, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Max Rud-mann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Justice.

Eldred Lonnie Moody was convicted of the first-degree, premeditated murder of Murray Bell and, consistent with the jury’s recommendation, was sentenced to death by the trial court. On appeal, we affirm his conviction, but we reverse his sentence of death and remand for resentencing without an additional jury recommendation because the trial court considered an improperly found aggravating circumstance in this case where there was also a properly found statutory mitigating circumstance and because the trial court apparently did not consider nonstatutory mitigating circumstances.

The victim, Murray Bell, a man in his sixties, lived alone in his trailer and mowed lawns and sold peanuts for a living. Bell knew Moody and apparently thought him to be a friend. On several occasions, Moody asked Bell for money and advised Bell that the money was for religious purposes. He told Bell that if Bell did not give him the money, Bell would die. He also told an elderly lady friend of Bell’s that if she did not raise the money for him, he was going to see either her or Bell murdered.

On February 17, 1977, Moody was without money and without a place to live. He, Athena Mock, Sherry Bassett, and Mock’s child had been sleeping in Bassett’s Volkswagen for several days prior to the murder. The morning of February 17,1977, Moody went to Bell’s trailer with the intention of getting Bell’s van. When Bell refused to give Moody the van, Moody again threatened him. Moody, along with Mock, Bas-sett, and the child, then left Bell’s trailer. Moody stopped at a TG&Y store and bought a knife. Then between 3 and 5 p.m., he, Mock, Bassett, and the child returned to Bell’s trailer and entered through the back door. Moody ransacked the trailer and spread paper towels throughout the trailer. In response to her inquiry as to what he was doing, Moody told Mock that paper towels burn easily. They then waited for Bell to return, without having turned on any lights. When Bell returned, Moody motioned for the women and the child to go to the back bedroom, which they did. Mock testified that she heard much noise from the living room — banging around, scuffling, and grunting and groaning, and yelling from the victim. She heard Bell beg Moody not to kill him. Moody then came to the bedroom door and told them they could come out. He then took a paper sack with money in it and his yellow jacket and placed these in the Volkswagen. As they were leaving, Mock saw a puddle of blood on the floor.

At Moody’s direction, Mock left in the Volkswagen, and Bassett drove away in Bell’s van. He told them to wait for him down the road because the Lord still wanted him to burn the trailer. Several minutes later after he had joined them, Moody told Mock and Bassett that he did not realize that a man the victim’s age had so much strength and that he did not know that it took a man so long to die. He also told them that he did not kill Bell of his own will, that God wanted him to do it, and that he would not have had enough strength to do it on his own.

The fire in Bell’s trailer alerted the neighbors and the fire department. Bell’s blood-soaked body was found in a south bedroom in his trailer. The sheriff’s department was immediately notified, and sheriff’s deputies were advised to be on the lookout for the green Volkswagen beetle, which had been observed by Bell’s neighbors outside his trailer at the time of the murder, and for the van which belonged to Bell. Within approximately an hour and a half after the murder, Moody, who was driving Bell’s van enroute to Jacksonville, was stopped by a deputy sheriff. At the time he was stopped, Moody had a bloodstain on his face and blood on his shirt, pants, belt, and shoes. The blood on his pants was of the same blood type as Bell’s. Bassett and Mock, who were in the Volkswagen, were also stopped and detained. A search of the Volkswagen pursuant to a search warrant revealed a bag containing Moody’s bloodstained, yellow jacket, a small bag of coins, a display card for an “Old Hickory” household knife, a TG&Y sales slip for the knife, and four paper bags containing $7.10 in coins. The “Old Hickory” household knife was found on the kitchen sink in Bell’s trailer.

The medical examiner testified that this knife could have caused the wounds on Bell’s body. Bell had been stabbed twenty-seven times — seventeen in the chest and back and ten on the hands. The wounds on Bell’s hands were described by the medical examiner as defensive wounds, wounds caused by attempting to take the knife from the killer. Bell’s death was caused by the stab wounds, not the fire. The evidence clearly demonstrates that the murder was consummated before Moody set fire to the trailer.

Moody was indicted for the premeditated stabbing murder of Bell. Two psychiatrists found that he was legally sane to stand trial and that he was legally sane at the time of commission of the murder. He appeals his conviction of the premeditated, first-degree, stabbing murder of Bell on several grounds.

He argues that he was deprived of his sixth amendment right to compulsory process of witnesses and his right to present a defense by the trial court’s denial of his petition for writ of habeas corpus ad testifi-candum directed to Bassett who was committed to a state mental hospital in Georgia after having been declared incompetent to stand trial in that state upon the charge of first-degree murder of her mother. The trial court had granted Moody’s motion to depose Bassett, but Bassett refused to answer any questions on the basis that she might incriminate herself. The court held a hearing on the motion to compel testimony and motion for habeas corpus ad testifican-dum to determine whether Bassett’s claim of her fifth amendment privilege was valid and whether she was competent to testify. After the hearing, the court denied these motions.

Moody acknowledges that the issuance of a habeas corpus ad testificandum is discretionary with the court, but contends that the trial court abused its discretion. We hold that the trial court did not abuse its discretion and that the denial of Moody’s request does not constitute reversible error. We also reject Moody’s contention that he was denied due process of the law by the prosecutor’s failure to give Bassett immunity. Furthermore, we hold that the trial court’s excluding from evidence Bassett’s Florida counsel’s testimony that, after being released from the Orange County jail, Bassett went to Georgia and killed her mother was entirely proper.

Moody next argues that the court’s instructions on murder were misleading and may have caused Moody to be wrongfully convicted of first-degree murder. During the jury charge conference, the court agreed with Moody’s counsel that the felony murder instruction should not be given because the evidence was tenuous at best as to whether there was a first-degree felony murder. The court did not give the separate instruction on felony murder, but in giving the definition of first-degree murder, it did include the entire statutory definition of first-degree murder which includes a reference to felony murder. This reference to felony murder in the context of the definition of first-degree murder did not amount to reversible error since, in the present case, there is not only sufficient but also overwhelming evidence of premeditation. See Knight v. State, 394 So.2d 997 (Fla.1981). The record shows that Moody threatened Bell’s life on several occasions prior to February 17, 1977, in order to force Bell to give him money. On the morning of the murder, Moody asked Bell for his van, and when Bell refused, he again threatened him. Moody then went to the store, bought a knife, returned to the trailer, and waited several hours for Bell to return. When Bell returned, he signaled the women and the child accompanying him to go to the bedroom and close the door, and he then proceeded to stab Bell seventeen times in the chest and back while Bell begged for his life and tried to ward off the knife with his hands. The evidence is overwhelming that Moody went to Bell’s trailer with the intention of killing him and with the intention of getting Bell’s van.

Moody next challenges his conviction on the basis that reversible error was committed when the prosecutor, during voir dire of the prospective jurors, asked the venire certain questions which Moody characterizes as asking the jury to prejudge the credibility of a witness. The prosecutor asked potential jurors whether they would never return a verdict of guilty under any circumstances where the evidence presented was from a witness who was present at the scene of the crime and who was granted immunity by the State. The State urges that this questioning was used to ferret out prejudice and to secure an unbiased jury and that the prosecutor was not asking the potential jurors to predecide the witness’s credibility.

The purpose of the voir dire proceeding is to secure an impartial jury, and impartiality requires not only freedom from jury bias against the accused and for the prosecution but also freedom from jury bias against the prosecution and for the accused. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980); Lewis v. State, 377 So.2d 640 (Fla.1979). See also Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

The prosecutor’s question is unlike the question asked by the prosecutor during the voir dire proceeding in Smith v. State, 253 So.2d 465 (Fla. 1st DCA 1971), which decision is relied upon by Moody to establish reversible error in the present case. We find that the trial court did not commit reversible error in overruling Moody’s objection to this question propounded to the venire by the prosecutor. The question did not call for a prejudgment of the case and did not amount to asking the venire to prejudge the credibility of a witness, but rather it was asked to determine the possible bias of any member of the jury venire which might affect the fairness of the trial.

Moody additionally now objects to the propounding of this challenged question to the entire venire rather than to individual jurors. Although at the time of his trial, Florida Rule of Criminal Procedure 3.300(b) provided that collective questioning was proper only when the State and defendant consent, we hold that Moody has failed to demonstrate reversible error on this point. He did not object to this form of questioning in the trial court, and he proceeded in the same manner of collectively questioning the jury. King v. State, 390 So.2d 315 (Fla.1980), relied upon by Moody in support of his position, does not mandate a different result.

Moody next claims that he was denied his sixth amendment right to present a defense because the court did not give an instruction on the effect of hallucinations on guilt. This standard jury instruction provides:

A person may be legally sane and yet, by reason of mental infirmity, have hallucinations or delusions which cause him to honestly believe to be facts things which are not true or real. The guilt of a person suffering from such hallucinations or delusions is to be determined just as though the hallucinations or delusions were actual facts. If the act of the defendant would have been lawful had the hallucinations or delusions been the actual facts, the defendant is not guilty of the crime.

Fla. Std. Jury Instr. (Crim.) 2.11(b)-2. During the charge conference, Moody merely submitted that this instruction “might be an appropriate charge.” This was nothing more than a suggestion and was not a request that the instruction be given. In addition, Moody did not object when the court stated that this instruction would not be given. Furthermore, we would find no error in the court’s failure to give this instruction since clearly Moody’s act would not have been lawful had the hallucinations or delusions been the actual facts.

In addition to reviewing the record in light of the alleged errors asserted by Moody which are without merit, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that no new trial is required. Accordingly, we affirm the conviction for murder in the first degree.

Moody also challenges his sentence of death on several grounds. After the jury rendered an advisory sentence of death, the trial court imposed the sentence of death and made the following findings in support of this sentence:

This Court finds that the Facts and the evidence do not support the Aggravating Circumstances in F.S. 921.141(5)(a), (b), (c), (e) and (g) in that this Capital Felony was not committed by a person under sentence of imprisonment, nor has the Defendant been previously convicted of another capital felony or of a felony involving the use or threat of violence to the person, nor did the Defendant knowingly create a great risk of death to many persons, nor was the capital felony committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, nor was the capital felony committed to disrupt or hinder the lawful exercise of any governmental function or enforcement of laws.
The Court does find, as sufficient Aggravating Circumstances, that the capital felony was committed while the Defendant was fleeing the scene after committing arson in the deceased’s trailer, and said flight from the scene was accomplished in the deceased’s 1971 Chevrolet Van, as enumerated in F.S. 921.141(5)(d); that the capital felony was committed for pecuniary gain in that the evidence showed that the Defendant had asked the deceased many times for money for his religious cult, and after the homicide a sum of money was missing from the deceased’s trailer and was found in the Defendant’s possession, F.S. 921.141(5)(f); and that the capital felony was especially heinous, atrocious and cruel in that the deceased had a total of twenty seven (27) stab wounds on his body, both anterior and posterior, on his head, thigh and fingers, 921.141(5)(h).
Turning now to Mitigating Circumstances, the Court finds only that the Defendant has no significant history of prior criminal activity, in that he has never been arrested nor convicted of any offense, according to his Mother’s testimony in Court today at the Advisory Sentence Proceedings, F.S. 921.141(6)(a). The Court finds inapplicable Subsections (b) through (g) of F.S. 921.141(6) in that the evidence does not show that the capital felony was committed while the Defendant was under the influence of extreme mental or emotional disturbance, nor that the victim was a participant in the Defendant’s conduct or consented to the act, nor that the Defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor, nor that the Defendant acted under extreme duress or under the substantial domination of another person, nor that the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, nor his age at the time of the crime is in mitigation since he was born October 29, 1941, making his age 35 at the time of the crime.
Upon consideration, it is the finding and conclusion of this Court that the Sentence of Death is justified, since the inescapable conclusion is that sufficient Aggravating Circumstances exist in the facts and evidence to justify the Death Penalty. The murder of the victim by the Defendant was for pecuniary gain, and the manner in which it was committed was extremely wicked, shockingly evil and vile, and was designed to inflict a high degree of pain with utter indifference for the pain, suffering and ultimate death of the victim. The Court therefore specifically finds that sufficient Aggravating Circumstances exist, and that there are insufficient Mitigating Circumstances to outweigh the Aggravating Circumstances.

The trial court’s finding of the aggravating circumstances that this capital felony was atrocious, heinous, or cruel and that it was committed for pecuniary gain are entirely appropriate as evidenced by the record before us. We agree, however, with Moody’s contention that the aggravating circumstance that “the capital felony was committed while the defendant was fleeing the scene after committing arson in the deceased’s trailer” is not supported by the record. It is clear from the record that the arson was committed after Bell was killed. The knife which the State urged to be the murder weapon and which the medical examiner testified was consistent with the wounds in Bell’s body was found on a white cloth on the counter in .the kitchen of Bell’s trailer. When the knife was picked up, it left a definite impression on the cloth due to the fact that the cloth was soot stained and smoke and heat damaged from the fire. Underneath the knife, there was a clear outline of the blade of the knife on the cloth which indicated that the knife had been cleaned and placed there before the fire.

Moody also contends that the trial court failed to consider the evidence of his mental and emotional problems in mitigation of the death sentence. He maintains that the evidence demonstrated the statutory mitigating circumstances that his ability to appreciate the criminality of his conduct was substantially impaired, that he was under the influence of extreme mental or emotional disturbance, and that he acted under extreme duress. He relies on Athena Mock’s testimony that he had been deeply involved in religion for several years and that he believed that God spoke to him and told him what to do as the basis for his contention. The State responds that it was within the province of the trier of fact to weigh the evidence and to determine whether the evidence supported the existence of these factors. We agree with the State and hold that the findings of the trier of fact that the evidence does not show these statutory mitigating factors should not be disturbed. See Lucas v. State, 376 So.2d 1149 (Fla. 1979). We also approve the trial court’s determination that Moody’s age (35) at the time of the commission of the crime is not a mitigating factor.

We do not agree with Moody’s assertion that the trial court’s instructions to the jury limited its consideration of mitigating factors to only those which are statutorily enumerated. The jury was given the standard jury instruction as to mitigating factors which we have held does not unconstitutionally limit the jury’s consideration of mitigating factors to those which are statutorily enumerated. Peek v. State, 395 So.2d 492 (Fla. 1980); see also Songer v. State, 365 So.2d 696 (Fla. 1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

It is not clear, however, from the trial court’s sentencing order that it considered nonstatutory mitigating circumstances. Moody presented evidence of the personality change he underwent following his return from combat in Vietnam and of his religious obsession. We are unable to discern from the trial court’s order whether it considered these factors as nonstatutory mitigating circumstances.

Since the trial court erroneously considered an aggravating circumstance not supported by the evidence, since there was a valid statutory mitigating circumstance, and since the trial court may not have considered nonstatutory mitigating factors, we set aside the sentence of death and remand to the trial court to make any additional findings it may deem appropriate and to reweigh the aggravating and mitigating circumstances.

Moody additionally points out that the trial court apparently thought that it did not have authority to order a presen-tence investigation report when it denied Moody’s request that the court order one. This appears from the following statement in the record made by the court when it denied the request. The court said, “The motion for PSI is denied. There is no statutory authority for that, and this matter will proceed to sentencing at three thirty this afternoon.” Although the trial court was not required by Florida Rule of Criminal Procedure 3.710 to order a presentence investigation before sentencing Moody, it had the discretion to order one. Hargrave v. State, 366 So.2d 1 (Fla. 1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Thompson v. State, 328 So.2d 1 (Fla. 1976). See also In re Florida Rules of Criminal Procedure, Rule 3.710, 362 So.2d 655 (Fla. 1978). On remand, the trial court should exercise its discretion and either grant or deny the request for a PSI.

Finally, we reject Moody’s challenges to Florida’s death penalty statute, all of which he concedes have already been expressly or impliedly rejected by this Court.

Accordingly, Moody’s conviction is affirmed, and this cause is remanded for re-sentencing by the trial court without an additional jury recommendation.

It is so ordered.

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

McDONALD, Justice, concurring in part and dissenting in part:

I would remand with instructions to impose a life sentence. •

      . The court instructed:
      You are further instructed that murder in the first degree is the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of or in the attempt to perpetrate any of the following crimes: Arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of 18 years when such drug is proven to be the proximate cause of the death of the user.

      . This rule has since been amended to permit collective questioning without consent. Florida Rule of Criminal Procedure 3.300(b), effective January 1, 1981, now provides:
      Examination. The court may then examine each prospective juror individually or may examine the prospective jurors collectively. Counsel for both State and defendant shall have the right to examine jurors orally on their voir dire. The order in which the parties may examine each juror shall be determined by the court. The right of the parties to conduct an examination of each juror orally shall be preserved.


author: ALDERMAN, Chief Justice. McDONALD, Justice, BOYD, Justice,

text:
    William Howe GILVIN, Appellant, v. STATE of Florida, Appellee.
    No. 58743.
    Supreme Court of Florida.
    July 15, 1982.
    Rehearing Denied Sept. 13, 1982.

      James B. Gibson, Public Defender and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender of the Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ALDERMAN, Chief Justice.

William Gilvin appeals his conviction for the first-degree murder of John Hunt and his sentence of death. Finding no merit to any of his challenges to his conviction, we affirm the conviction. We reverse the sentence of death imposed after a jury recommendation of life, however, because applying the test announced in Tedder v. State, 322 So.2d 908 (Fla.1975), we conclude that the facts suggesting the sentence of death in this case are not so clear and convincing that virtually no reasonable person could differ.

Gilvin first met the victim, John Hunt, an Episcopal priest, when early one morning in July of 1979, he was hitchhiking out of Tampa. Hunt gave him a ride and offered to allow him to spend the remainder of the night at the vicarage in Brooksville where Hunt resided. The next morning, Hunt gave Gilvin money to buy a bus ticket to Kentucky and told Gilvin that if Gilvin wanted to come back to Florida he would help Gilvin find a job and permit Gilvin to stay at the vicarage.

Several days later, Gilvin contacted Hunt to ask if Hunt’s offer was still open and to tell Hunt that he had decided to return to Florida to find a job. Hunt told him the offer was still open and to come on down to Brooksville which Gilvin did, arriving back in Brooksville on Friday, July 13,1979. The next day, he went to look for a job and, on his job application, put Hunt’s name as the person to contact in case of emergency. Later that day after he and Hunt had eaten, consumed several drinks, and then smoked marijuana, Hunt asked Gilvin what he thought about homosexuals. Gilvin told Hunt that he never had engaged in homosexual activities and never intended to do so. When asked by Gilvin if he was a homosexual, Hunt answered affirmatively. Gilvin then told Hunt that he would leave immediately if Hunt was expecting him to partake in homosexual activities. Hunt assured him that this was not his intent and that he would not broach the subject again.

The next afternoon after he and Hunt drank several drinks and smoked marijuana, Hunt again told Gilvin that since he was Hunt’s guest and since Hunt was helping him, he should consent to Hunt’s homosexual overtures. Gilvin refused and said that he was going to leave. Hunt persuaded him to stay until the next morning since, Hunt said, it was too late to leave. Shortly thereafter, Hunt put his hand on Gilvin’s leg, and Gilvin brushed it off. Hunt then went to bed.

On Monday morning, Hunt promised to drive Gilvin to the interstate after he finished church business. Upon returning home, Hunt fixed a pitcher of martinis. They both drank a great deal, and Gilvin smoked marijuana. Hunt then told Gilvin that he would drive him to the interstate after he had taken a nap. He retired to his bedroom but moments later reappeared behind Gilvin either completely nude or clad solely in his undershorts, put his arms around Gilvin, and kissed him on the temple. Gilvin pushed him away, and Hunt fell to the floor at which time Gilvin testified that he saw that Hunt was nude. As Gilvin started to rise out of the chair,. Hunt smacked Gilvin with his open hand and then ran back into the bedroom to look for something. Thinking that Hunt was looking for a weapon, Gilvin picked up a claw hammer from a table. When Gilvin entered the bedroom, Hunt started kicking and hitting him. Gilvin hit him several times with his hand and several more times with the hammer, but Hunt kept fighting. The fight continued for about five minutes until Hunt fell to the floor. Gilvin then stood or kneeled on Hunt and hit him several times in the back of the head with the hammer. He then tied Hunt’s hands behind his back, showered, packed his belongings, put towels and newspapers over the windows, took Hunt’s car, credit cards, and money, and placed a card in the door saying, “Please call tomorrow. Reverend Hunt.” Gilvin was arrested two weeks later in Kentucky, still in possession of Hunt’s car and credit cards.

Hunt’s body was discovered the day following the fight by the church secretary. The pathologist testified that there were abrasions on Hunt’s back and large lacerations in the back of his scalp and abrasions and lacerations on his face and forehead and on his shoulders and chest, that the left earlobe had been torn through, that a hole in the right cheek went through to his mouth, and that he had a fractured skull. He testified that Hunt had sustained at least fifteen blows to the head, five of which were large and that the major fracturing blows were inflicted while Hunt lay face down. Hunt died from loss of blood caused by the lacerations.

Gilvin was indicted for first-degree, premeditated murder for the killing of Hunt with a blunt instrument, was found guilty, and, after a jury’s life recommendation, was sentenced to death.

Gilvin argues that his conviction should be reversed because the trial court erred in denying his motions for judgment of acquittal and for new trial. He asserts that the evidence was insufficient to establish premeditation. We hold that the trial court correctly denied these motions. The evidence is sufficient to support the jury’s finding that Gilvin premeditated the killing of Hunt.

We also find no merit to Gilvin’s contention that the trial court reversibly erred in denying his motion to suppress his confession and in permitting the State to introduce his taped confession as rebuttal evidence. He states that he was induced to give a confession by promises by police detectives to talk with the prosecutor about speeding up his case. He alleges that at the time of his confession, he wanted to expedite matters so that he could receive the death penalty quickly.

After a hearing, the trial court ruled that Gilvin’s confession was freely and voluntarily made, and this ruling comes to us clothed with a presumption of correctness. Shapiro v. State, 390 So.2d 344 (Fla. 1980), cert. denied, 450 U.S. 982, 101 S.Ct. 1519, 67 L.Ed.2d 818 (1981). As appears from the record, Gilvin was repeatedly advised of his Miranda rights, and no promises were made to induce his confession. Rather, at Gilvin’s request, the detectives said that they would forward the information supplied by Gilvin to the proper authorities in an attempt to expedite the matter insofar as possible. Furthermore, introduction of the taped confession was not reversible error. His trial testimony was inconsistent with his confession in several respects. That portion of his confession which was merely cumulative was not prejudicial.

We likewise reject Gilvin’s contentions that the court committed reversible error in giving the “Alien charge” and reminding the jury of this charge upon recessing for the evening. His other claims of reversible error as relate to his conviction are without merit and do not necessitate discussion.

As to his sentence of death, however, we agree with Gilvin’s argument that the trial court erroneously overrode the jury’s life recommendation. The trial court found several aggravating circumstances, some of which constitute an improper doubling up under our pronouncement in Provence v. State, 337 So.2d 783 (Fla. 1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), and found no mitigating factors. There was evidence of nonstat-utory mitigating factors, however, upon which the jury could have based its life recommendation even though the trial court, in its judgment, was not necessarily compelled to find them. See Lucas v. State, 376 So.2d 1149 (Fla.1979). In evaluating the propriety of a death sentence after a jury recommendation of life, we must decide whether the facts suggesting a sentence of death are “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d at 910. Under the totality of the circumstances presented by the evidence in this case, we cannot say that the jury’s view of the evidence and its conclusions as to aggravating and mitigating factors could not reasonably differ from that of the trial court and that it could not reasonably conclude under the circumstances that a life sentence was warranted. We therefore must reverse the sentence of death.

Accordingly, we affirm Gilvin’s conviction of murder in the first-degree; however, the order of the trial court sentencing Gilvin to death is quashed, and the trial court is directed to enter a sentence of life imprisonment without the possibility of parole for twenty-five years.

It is so ordered.

SUNDBERG and EHRLICH, JJ., concur.

McDONALD, J., concurs with an opinion.

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

McDONALD, Justice,

concurring.

My review of the record leads me to believe that a more appropriate verdict would have been murder in the second degree rather than murder in the first degree. I concede, however, that there was sufficient competent circumstantial evidence presented upon which the jury could conclude that premeditation existed. I therefore concur in the affirmance. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

I agree that the trial judge should not have imposed the death penalty. There was a rational basis for the jury’s recommendation of life. In addition, I do not believe that any of the aggravating factors found by the trial judge were proved beyond a reasonable doubt.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the affirmance of the conviction but dissent from the reduction of sentence. Appellant was an unemployed ex-convict who was hitchhiking across Florida. The victim was an Episcopalian priest who followed the Biblical mandate to extend hospitality to needy strangers. As compensation for food, shelter, and other economic benefits, the appellant murdered the priest in a cruel, ruthless and senseless manner so he could steal his credit cards, automobile, and other personal property. It is significant that appellant tied the victim’s hands with a cord before inflicting the mortal injuries.

Appellant’s only justification for his crime was that his victim made homosexual advances to him in the victim’s home. His response was to strike the priest with his fist, pursue him with a hammer, and bludgeon him to death. He claimed he did so in self-defense, since the priest was resisting the beating given him by appellant.

If indeed the victim made improper and offensive suggestions, appellant should have left the home instead of killing the man.

This crime was wholly inexcusable and without reason. There is nothing in the record to justify reduction of the death penalty to life imprisonment.

The court found that the murder was committed while appellant was engaged in the crime of robbery; that the murder was committed for the purpose of avoiding detection and arrest for crimes already perpetrated upon the victim; that the murder was committed for pecuniary gain; that the murder was committed to disrupt or hinder the enforcement of laws; that the murder was especially heinous, atrocious, or cruel; and that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The court found no mitigating circumstances.

It was error for the court to count the factors of robbery and pecuniary gain as separate aggravating circumstances. It was also error to count prevention of arrest and disruption or hindrance of law enforcement as separate aggravating circumstances. However, we can count the recited factors as two rather than four statutory aggravating circumstances and treat the error as harmless, since there are no mitigating circumstances. Hargrave v. State, 366 So.2d 1 (Fla.1979), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1980); Washington v. State, 362 So.2d 658 (Fla. 1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979). Furthermore, since there are no mitigating circumstances and several aggravating circumstances, death is the appropriate penalty. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

The majority’s reliance on Tedder v. State, 322 So.2d 908 (Fla.1975), is seriously misplaced. The principle of Tedder is that when the jury recommends life, the sentencing judge should follow the recommendation if it is based on some reasonable mitigating factor shown by the evidence. Here there was no reasonable basis for the jury to recommend life. One can only speculate about the reason for the recommendation. Therefore the judge was correct in overruling the jury and sentencing the appellant to death.

ADKINS and OVERTON, JJ., concur.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Fla.Std. Jury Instr. (Crim.) 2.21.


text:
    Donald Albert WALSH, Appellant, v. STATE of Florida, Appellee.
    No. 59512.
    Supreme Court of Florida.
    July 29, 1982.
    Rehearing Denied Sept. 23, 1982.

      Samuel R. Mandelbaum of Anthony F. Gonzalez, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., and Charles Cor-ees, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Appellant Donald Albert Walsh was convicted by a jury of aggravated assault, trespassing with a firearm, and first-degree murder. The trial judge imposed two consecutive five-year sentences for the former two charges, and, over the jury’s recommendation of life, imposed the death sentence for the murder conviction. We affirm all three convictions and the sentences for assault and trespassing, but, in accordance with the jury’s recommendation, we remand to the trial court with directions to reduce the death sentence to life imprisonment without the possibility of parole for twenty-five years.

In early December, 1979, appellant, age 25, was visiting his stepmother in the Im-mokalee area of the northwest Everglades. On the afternoon of December 3, two friends of appellant’s younger brother, ages 15 and 13, approached appellant with a .35 caliber rifle and informed him that they had stolen it. The boys gave appellant the rifle in exchange for a chance to drive appellant’s automobile to go wild boar hunting.

The three departed for an area where appellant knew wild boar to be. On arrival, appellant spotted a pack of boars inside a double-fenced pasture owned by Immokalee Ranch. Appellant shot one hog, causing it to fall momentarily and then wander off. He was unable to locate the hog, and, after driving to another area, and returning, he spotted the same pack of boars. Appellant shot at another hog and killed it. While the two juveniles began to drag the dead hog back to the vehicle, appellant went searching for the wounded hog.

At about that time, Deputy Sheriffs Amos and Thomas arrived on the scene in an unmarked Bronco in response to a complaint of gunshots from the ranch manager. The officers were clothed so that one would not readily recognize them as sheriff’s deputies. They first apprehended the juveniles and then started after appellant who had disappeared into a large ditch. When the deputies approached, appellant shot Deputy Amos in the head, killing him instantly. Deputy Thomas ran back to his vehicle, crashed it through the fences, and fired at appellant until he surrendered.

At trial, one of the juveniles testified that when crossing into the pasture, he asked appellant “What if the cops come?” Appellant responded by lifting the rifle in his hand, saying, “Don’t worry about it.” The other juvenile testified that, while Deputy Thomas was running back to his vehicle, appellant “sat down on his knees” and aimed at Deputy Thomas, but did not shoot. The officer who examined the gun after appellant’s apprehension testified that the gun appeared to be jammed.

Appellant testified in his own behalf that when he saw a plainclothed man, later identified as Deputy Amos, coming toward him with gun drawn, he feared for his life and fired an unaimed shot in the man’s direction in self defense. Deputy Thomas testified that the decedent had “just cleared leather” with his gun before he was shot in the head. One of the juveniles testified that Deputy Amos had not drawn his gun.

Before trial, appellant underwent a polygraph examination, the results of which favored appellant’s claim of self-defense. The state timely objected to the introduction of this evidence by filing a motion before trial to exclude the polygraph results. The trial court granted the state’s motion and instructed the defense accordingly.

The trial court scheduled appellant’s first trial on April 9, 1980. At the beginning of the defense’s case, defense counsel had the written polygraph report marked as a court exhibit. While appellant was on the witness stand, defense counsel asked appellant if his testimony was true. Appellant responded, “Yes, I took a lie detector test and passed it.” The state immediately moved for a mistrial. The trial court at first denied the motion and gave the jury a precautionary instruction, but the next day granted a mistrial. The court rescheduled trial for June 5, 1980. It resulted in appellant’s convictions for the offenses charged.

At the sentencing phase of the second trial, the jury unanimously recommended life imprisonment. The trial court rejected the recommendation and sentenced appellant to death. The court found three aggravating factors: appellant was previously convicted of a violent felony (the present aggravated assault and trespassing convictions), appellant committed the murder to avoid lawful arrest, and the murder was cold, calculated, and premeditated. The court considered two mitigating factors: appellant’s lack of a criminal record and testimony concerning appellant’s good character.

Trial Phase

Appellant first urges that we should set aside his convictions on the grounds that he was subjected to double jeopardy, there being no manifest necessity for mistrial. We reject this contention, finding the trial court justified in granting mistrial because of appellant’s improper comments on the witness stand. Appellant and his counsel knew that the trial court had previously ruled the polygraph results inadmissible. Absent consent by both the state and defendant, polygraph evidence is inadmissible in an adversary proceeding in this state. Codie v. State, 313 So.2d 754 (Fla. 1975); Sullivan v. State, 303 So.2d 632 (Fla. 1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); Kaminski v. State, 63 So.2d 339 (Fla. 1952). The same rule applies in the United States Court of Appeals for the Fifth Circuit. See United States v. Masri, 547 F.2d 932, 936 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977); United States v. Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975).

In granting the present mistrial, the trial court said:

The Court having given the instruction yesterday, having reviewed the cases, thought over the matter during the eve-nmg, being basically violently opposed to starting over on a trial that took this long . . . cannot feel that the jury can adequately disregard what they heard and what they heard would not influence their decision; therefore, the court finds that it has no alternative but to grant the request for a mistrial ....

(Emphasis ours.) We agree with the trial judge that this type of testimony would be difficult for the jurors to disregard and that the evidence would likely influence the jury’s decision. We agree that there was a sufficient manifest necessity to grant a mistrial and that defendant’s assertion of double jeopardy is without merit.

Appellant next contends that the trial court erred in failing to instruct on the minimum and maximum penalties as mandated by Tascano v. State, 393 So.2d 540 (Fla. 1980), and Florida Rule of Criminal Procedure 3.390(a). We reject this contention. More than in any other criminal proceeding, the jury in a capital case knows the minimum and maximum penalties involved. At voir dire, the court or counsel inquires as to each juror’s attitude toward the death penalty and each juror’s ability to apply the law which may result in a death sentence. Additionally, in a death ease, the trial and sentencing phases are bifurcated; each jur- or participates in the sentencing process and must affirmatively recommend whether life or death is appropriate. Because the jury in a death case clearly knows the maximum and minimum penalties, the reasoning behind the Tascano decision is not present. Welty v. State, 402 So.2d 1159 (Fla. 1981).

Appellant’s final contention is that the state failed to prove premeditation. We find more than sufficient evidence in this record to establish premeditation and to sustain the convictions for each offense with which appellant was charged.

Penalty Phase

Appellant cites multiple claims of error in the penalty phase of his trial. We reject as being without merit that due process requires a statement of particulars as to aggravating circumstances, Clark v. State, 379 So.2d 97 (Fla. 1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981); Menendez v. State, 368 So.2d 1278 (Fla. 1979), that polygraph evidence should be allowed as a mitigating factor in the sentencing phase, see Codie v. State, Sullivan v. State, Kaminski v. State, and that the trial court improperly doubled up aggravating circumstances.

We find, however, that the trial court should have accepted the jury’s unanimous recommendation of life imprisonment. This Court has repeatedly held that the trial court and this Court must weigh heavily the sentencing jury’s advisory opinion of life imprisonment. Tedder v. State, 822 So.2d 908 (Fla. 1975). We have allowed the trial court to overrule a life recommendation only where the facts justifying death are so clear and convincing that no reasonable person could differ. See Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied, - U.S. -, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982); White v. State, 403 So.2d 331 (Fla. 1981); Zeigler v. State, 402 So.2d 365 (Fla. 1981), cert. denied, - U.S. -, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Johnson v. State, 393 So.2d 1069 (Fla. 1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); Dobbert v. State, 375 So.2d 1069 (Fla. 1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Hoy v. State, 353 So.2d 826 (Fla. 1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); Barclay v. State, 343 So.2d 1266 (Fla. 1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976). And we have reversed the death sentence and directed the trial court to impose life imprisonment where there was a reasonable basis for the jury’s recommendation. Goodwin v. State, 405 So.2d 170 (Fla. 1981); Odom v. State, 403 So.2d 936 (Fla. 1981), cert. denied,U.S. -, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); McKennon v. State, 403 So.2d 389 (Fla. 1981); Smith v. State, 403 So.2d 933 (Fla. 1981); Stokes v. State, 403 So.2d 377 (Fla. 1981); Welty v. State, 402 So.2d 1159 (Fla. 1981); Barfield v. State, 402 So.2d 377 (Fla. 1981); Phippen v. State, 389 So.2d 991 (Fla. 1980); Williams v. State, 386 So.2d 538 (Fla. 1980); Neary v. State, 384 So.2d 881 (Fla. 1980); Malloy v. State, 382 So.2d 1190 (Fla. 1979); Brown v. State, 367 So.2d 616 (Fla. 1979); Shue v. State, 366 So.2d 387 (Fla. 1978); Buckrem v. State, 355 So.2d 111 (Fla. 1978); McCaskill v. State, 344 So.2d 1276 (Fla. 1977); Burch v. State, 343 So.2d 831 (Fla. 1977); Chambers v. State, 339 So.2d 204 (Fla. 1976); Provence v. State, 337 So.2d 783 (Fla.), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1976); Jones v. State, 332 So.2d 615 (Fla. 1976); Thompson v. State, 328 So.2d 1 (Fla. 1976); Tedder v. State, 322 So.2d 908 (Fla. 1975); Swan v. State, 322 So.2d 485 (Fla. 1975); Slater v. State, 316 So.2d 539 (Fla. 1975). In this cause, we conclude there was a reasonable basis for the jury’s unanimous recommendation and the trial court should have followed that recommendation.

For the reasons expressed, we affirm appellant’s convictions and sentences for assault and trespassing with a firearm. We reverse the sentence of death and remand the cause to the trial court with directions to enter a sentence of life imprisonment without the possibility of parole for twenty-five years.

It is so ordered.

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

ADKINS, J., concurs as to conviction and dissents as to sentence.

      . We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR. In re AMENDMENT TO the FLORIDA RULES OF JUVENILE PROCEDURE.
    No. 61040.
    Supreme Court of Florida.
    Aug. 31, 1982.
    James C. Rinaman, Jr., President, Jacksonville, Wm. O.E. Henry, President-elect, Lakeland, and John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar; and James R. Auffant, Chairman, Juvenile Rules of Procedure Committee, Orlando, for petitioner.
   PER CURIAM.

The Florida Bar has petitioned for the amendment of two Rules of Juvenile Procedure, Rules 8.170 and 8.300. Our opinion of July 1, 1982 in this proceeding is hereby withdrawn. Our decisions rejecting proposed Rule 8.170 and adopting a modified new Rule 8.300 are hereby nullified.

Having fully considered the matter, the Court hereby adopts the following amendments. Additions are indicated by underscoring. Deletions are indicated by struck-through type.

Rule 8.170 is amended as follows:

Rule 8.170 Procedure When Child Believed to be Insane Incompetent
(a) At Time of Adjudicatory Hearing in Delinquency Cases.
(1) If at any time prior to or during the adjudicatory hearing, the court has reasonable grounds to believe the child named in the petition may be incompetent to proceed with an adjudicatory hearing, the court shall immediately stay the proceedings and fix a time for a hearing for the determination of the child’s mental condition.
(2) If at the hearing provided for in (1) above the child is found to be competent to proceed with an adjudicatory hearing the court shall proceed therewith.
(3)If at the hearing provided for in (1) above the child is found to be incompetent to proceed with the adjudicatory hearing, proceedings shall be commenced for the involuntary hospitalization of the child as provided by law.
(i) If the child is not hospitalized because of the fact that the child does not meet the criteria for involuntary hospitalization according to law, the court mav order anv non-delinquent treatment for the child in order to restore the child’s competence to proceed with an adjudicatory hearing.
(4)(ii) If the child is not hospitalized, or upon his release from the hospital, any interested party or the court on its own motion may call the matter up for the purpose of setting an adjudicatory hearing.
(5)(4) If after any civil proceeding for involuntary hospitalization, the court determines, after hearing, that there is no reasonable probability that the child will become competent for the purpose of an adjudicatory hearing in the foreseeable future and that no progress is being made toward that goal, it shall enter an order dismissing the petition.
Rule 8.300 is amended as follows. The present rule is deleted and the deletion is indicated by the use of struck-through type. The new rule is indicated by underscoring.
Rule 8.300 Guardian Ad Litem
The-court may appoint a guardian ad litem, who may be directed — to appear without service of process and-who shall not be requk-ed-to post bond. — He shall file an acceptance of the office-
la! At anv stage of the proceedings, the court mav appoint a guardian ad litem to represent anv child alleged to be delinquent or dependent.
(b) The court shall appoint a guardian ad litem to represent the child in anv child abuse or neglect proceedings.
(cl The guardian ad litem shall be an attorney or other responsible adult and shall have the following responsibilities:
(11 To investigate the allegations of the petition and, unless excused bv the court, to file a written report. This report shall include a statement of the wishes of the child and the recommendations of the guardian ad litem, and shall be filed at least 48 hours prior to the dispositional hearing.
(21 To be present at all court hearings unless excused bv the court.
(31 To represent the interests of the child until the jurisdiction of the court over the child terminates, or until excused bv the court.
(41 To perform such other duties and undertake such other responsibilities as the court mav direct.
(dl A guardian ad litem shall not be required to post bond but shall file an acceptance of the office.
(el A guardian ad litem shall be entitled to receive service of pleadings and papers as provided bv Rule 8.130(cl.
(fl The duties of lav guardians shall not include the practice of law.

The foregoing amendments of Rule 8.170 and Rule 8.300 shall take effect at 12:01 a.m. on September 1, 1982.

It is so ordered.

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

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

McDONALD, J., dissents.

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the revision of Rule of Juvenile Procedure 8.300, pertaining to the appointment of guardians ad litem to assist children in court proceedings that relate to children. I dissent, however, from the Court’s promulgation of new Rule 8.170(a)(3)(i). I fully appreciate the arguments of the proponents of this rule, that it is intended to fill an unfortunate gap in the juvenile courts’ powers. I stand firm in the belief, however, that only the legislature has the authority to fill the gap and grant the courts this much-needed additional power. The new rule purports to grant the court the power to treat an incompetent child, who is not so mentally deficient as to be subject to hospitalization, as a dependent child. However, dependency, like delinquency, is a substantive legal concept which only the legislature may define. The proponents of the rule are attempting to get around the legislature’s failures by asking this Court to legislate. In a well Mentioned but unfortunate move, the Court today accedes to that request. I would reject the proposed rule and tell the highly dedicated participants in the juvenile justice system who proposed it to seek substantive law reform from the legislature.