author: DeCARLO, Judge.

text:
    Michael WYATT v. STATE.
    4 Div. 863.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.

      James M. Prestwood, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Assault in the third degree; one year and $500. fine.

Appellant was indicted for beating his two-year-old stepson with a belt and belt buckle, resulting in bruises and swelling. Over appellant’s objection at trial, the court admitted copies of the child’s hospital records indicating the following notations by the examining physician.

“Impression: Child abuse through physical beatings. Probable neglect.
The child obviously was a victim of child abuse.
“Final Diagnosis: Child abuse Right upper lobe pneumonia Multiple eechymo-sis, bruises contusions, penile edema— all secondary to child abuse.”

Appellant made the following objection to the offer of the hospital records:

“MR. PRESTWOOD: [Defense counsel] May it please the Court, Mr. McGill has just offered in evidence over our objection, State’s Exhibit One, which is a series of sheets purportedly part of the records of the Mizell Memorial Hospital. And, on the first sheet of the summary sheet, which is the record sheet in the whole exhibit, you have a child abused through physical beatings, probable neglect, final diagnosis, child abuse.
“Now Your Honor, I’m sure realizes that those are conclusions of law that the doctor could not make and they could not be introduced by a live witness nor could they be introduced in the form of records. “The child abuse is not a diagnosis. The only thing that the doctor could say that would be admissible would be what he put down here, bruises, contusions, penal edema, all secondary to child abuse, could not put in there, Your Honor.
“MR. McGILL: May it please the Court, I think, that is proper for Mr. Prestwood’s cross-examination of the doctor with reference to statements like that.
“But I think, it is admissible since it is a part of the hospital’s records and it is made in the usual and normal course of business in the keeping of the records.
“THE COURT: I think, under the business records act, as they have construed it recently, it would be admissible. The credibility of it would be for the jury and for argument. But, I think, under the business records act they are admissible.
“MR. PRESTWOOD: But, Your Honor, it is not anticipated that the person who makes these records would draw these conclusions and if he doesn’t testify to it in the courtroom, how can he testify in the back door, indirectly on the summary sheet.
“THE COURT: I overrule the objection, based on the business records act.”

The State also called the examining physician, Dr. Reddock Williams, to testify at trial, at which time the following occurred:

“Q. [By Assistant District Attorney] Dr. Williams, I will ask you if back on March the nineteenth of this year if you had an occasion to see and examine a patient by the name of Joseph Michael Falshing?
“A. Yes, sir.
“Q. Where did you see this patient?
“A. In my office.
“Q. Who was he accompanied by?
“A. His mother.
“Q. Did you examine the child, at that time?
“A. Yes, sir.
“Q. Tell the Court and jury, after you completed your examination, what it was that you found with reference to the child having any evidence of trauma?
“A. The child — May I read my office notes?
“MR. PRESTWOOD: We object.
“THE COURT: You can refer to them to refresh your recollection.
“A. All right. The child was approximately two years old, white male, and had bruises both old and new on his head, face, upper back and buttocks. His hair was thinned, pulled out or falling in multiple locations. He had bruises on his scalp. He had bruises, abrasions and minor scratches on the face and lips. He also had some swelling of the penis, of the type that is called paraphimosis. He had gross — by that I mean large — old and new bruises of the buttocks back and head. And, at that time, I thought the child had probably—
“MR. PRESTWOOD: Object.
“THE COURT: Don’t say, what you thought. Just say what your findings are.
“A. Well, my diagnosis, at that time, was child abuse.
“MR. PRESTWOOD: Now, we object and move to exclude. And, at this time, we move for a mistrial.
“THE COURT: Ladies and gentlemen of the jury, that last statement would be excluded from your consideration. “Is there anyone of you that does not think that you could put that out of your mind and render a fair and impartial verdict based on the evidence?.... “Any of you think that you could not render a fair and impartial verdict at this time, and if so, let it be known.
“Motion for mistrial is overruled.”

Outside the presence of the jury, the following occurred:

“MR. PRESTWOOD: Now, if the Court please, we specifically objected to the hospital records showing that how unfair it was to let a record in there that had conclusions of a witness, in this case Dr. Williams. Where he referred to the diagnosis as child abuse.
“Now Your Honor, overruled our objection and records are in there. And, I made it known to the Court that Dr. Williams could not say that in the courtroom. That, that would be highly prejudicial. And, he could not in any event refer to it as child abuse.
“And, yet, that is what he has done. And, he has been on the stand less than three minutes and he has referred to it as child abuse. And, we cannot, with the feeling about child abuse being what it is and justifiably so, we cannot assume that the jury is going to erraticate [sic] that from their minds.
“We are just fooling ourselves if we think that they are. It has been nailed down as hard as it can be that the doctor found it to be child abuse. And, no matter what else we say or what we do that is going to be in the jury’s mind.
“THE COURT: I overruled the motion for a mistrial. And, I want to caution you, Mr. McGill, about anything else of that nature in the evidence. I would have to grant the motion.
“Now, Dr. Williams, you think that child abuse is a physical finding. That is a mixed question of law and fact, for the jury to determine. So, you, just from your examination tell what the physical findings were on the child and not your conclusions as to how they got there.
“MR. McGILL: Let me ask him a question, Your Honor, so we can get something in the record on this.
“Doctor, does the medical profession now days in their day to day course of medical profession use the term child abuse?
“DR. WILLIAMS: Yes, sir.
“MR. McGILL: It is an accepted diagnosis by the medical profession as to the cause of the wounds or trauma that would be consistent with the type that you examined on this child, when you reached a conclusion of child abuse?
“DR. WILLIAMS: Yes, sir.
“MR. PREST WOOD: Judge, I would like to say—
“THE COURT: I sustain the objection to that.
“MR. PRESTWOOD: I would like to put it into the record that the medical association hasn’t taken over the Courts yet.
“DR. WILLIAMS: Judge, may I ask a question? Am I suppose [sic] to be a factual witness or just a witness or an expert witness or what am I suppose to be?
“THE COURT: He just asked you what your physical findings were on that child, what you observed.
“DR. WILLIAMS: Let me ask you this, Your Honor. I just wanted to be as helpful as I can here. But, if I see that he has pneumonia and I think they had pneumonia and my diagnosis is pneumonia. That is a diagnosis from what I have observed.
“THE COURT: That is a medical sickness, but is child abuse a medical sickness?
“DR. WILLIAMS: Child abuse is a medical sickness. Yes, sir.
“THE COURT: No, sir. That is a question of law, in fact, as to what a certain individual—
“DR. WILLIAMS: No, sir. It is not known syndrome and that is my point.
“THE COURT: Well, we are caught at this point, and I don’t think that it is recognized as a known syndrome that you can testify to. That is what a jury has to say, if it occurs.”

I

In our judgment, this case must be reversed for the error of admitting portions of the hospital records to which appellant objected at trial.

Neither § 12-21-5 of the Code of Alabama 1975 (authorizing the admission of certified copies of hospital records) nor § 12-21 — 43 of the Code of Alabama 1975 (allowing the receipt of records made in the regular course of a business) operates to admit evidence which is inherently inadmissible. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365 (1974), cert. denied, 294 Ala. 763, 317 So.2d 372 (1975); Greathouse v. Credit Bureau, Inc., 279 Ala. 524, 187 So.2d 565 (1966).

Section 12-21-5, supra, merely provides a procedure by which copies of hospital records may be admitted without producing the originals and without calling the custodian to lay a predicate. The statute does not allow the carte blanche admission of all hospital records; it does not do away with the rule against hearsay or the opinion evidence rule. Lowery v. State, 55 Ala.App. 511, 317 So.2d 357 (1974).

In our judgment, Dr. Williams’ statement, whether written or oral, that he diagnosed the patient as a victim of child abuse was an impermissible statement of opinion on an ultimate issue in the case. A witness, whether expert or lay, may not give his opinion on an ultimate fact in issue. Wilkinson v. Duncan, Ala., 319 So.2d 253 (1975); Colvin v. State, 247 Ala. 55, 22 So.2d 548 (1945); Sovereign Camp W.O.W. v. Ward, 196 Ala. 327, 71 So. 404 (1916); Anderson v. State, 104 Ala. 83, 16 So. 108 (1893); Henderson v. State, Ala.Cr.App., 373 So.2d 1218, cert. denied, Ala., 373 So.2d 1221 (1979); Harris v. State, 39 Ala.App. 139, 99 So.2d 201 (1957), cert. denied, 266 Ala. 697, 99 So.2d 204 (1958). See Annot., 69 A.L.R.2d 22 at § 8 (1976).

In Colvin v. State, supra, the State properly qualified a fire chief as an expert witness in an arson prosecution. The Alabama Supreme Court ruled, however, that the witness should not have been allowed to testify that the fire was of “incendiary origin,” because that phrase indicated a malicious burning and was the ultimate issue in the case.

The court observed that the witness could properly have testified to the facts underlying his conclusion, i.e., whether or not kerosene was found at the point of the fire, whether the fire burned naturally on materials of which the house was built, or whether flammables were added, and whether or not there was an even burn pattern throughout. In other words, the witness should have been allowed to relate the primary facts, but not to draw the ultimate conclusion or inference from those facts. The court noted:

“The physical facts... are so simple that they can be readily understood when properly described, and it is then for the jury to draw the appropriate conclusion.” Colvin v. State, 247 Ala. at 56, 22 So.2d at 549.

Similarly, in the present case, the term “child abuse” denotes a criminal beating, see State v. Ballard, Ala.Cr.App., 341 So.2d 957 (1976), cert. quashed, Ala., 341 So.2d 962 (1977), and it was the ultimate issue in a prosecution for assault on a two-year-old child. Dr. Williams should have been permitted to testify to the number, age, type, and location of wounds on the child, all of which were primary facts, but not to state his conclusion that the wounds were the product of child abuse.

Only when it is “practically impossible to reproduce or adequately describe the primary facts on which an inference is based “may a witness give a statement of ultimate fact in the form of “collective facts” or a “short-hand rendition.” Broughton v. Kilpatrick, Ala., 362 So.2d 865 (1978); See also First National Bank of Birmingham v. Lowery, 263 Ala. 36, 81 So.2d 284 (1955); Louis Werner Sawmill Co. v. Vinson & Bolton, 220 Ala. 210, 124 So. 420 (1929).

In the case before us, as in Colvin v. State, supra, the primary facts were simple enough to be explained to and understood by a jury. The appropriate conclusion was theirs to draw.

The fact that the physician’s conclusion was framed in terms of a “diagnosis” does not change the result here. Although § 12-21-5, supra, expressly provides that notations on hospital records, including diagnosis, shall be admissible, our Supreme Court has indicated that diagnostic evaluations are admissible only because, if the physician were a witness, his testimony would be admissible as an expert opinion. Seay v. State, Ala., 390 So.2d 11 (1980). In Seay the court observed the following:

“It is generally stated that a hospital record of a patient, if it meets statutory requirements, is a record within the business record exception to the hearsay rule to the extent that the record covers hospital diagnosis. A business record, which takes the form of an opinion, however, will not be admissible unless the subject is a proper one for opinion testimony. Thus if a hospital record of a doctor’s diagnosis of a patient in the hospital has been made in conformity with the Business Records Act, then that record, even though the diagnosis is in opinion form, is admissible because if the physician were a witness, his testimony on the diagnosis would be admissible as an expert opinion.” [Citations omitted]

Notwithstanding Dr. Williams’ statement to the trial judge that child abuse is a medically-recognized “sickness,” “syndrome,” or “diagnosis,” we hold that the term “child abuse,” under these facts, constitutes a conclusion involving the application of a legal definition. Opinion testimony upon a matter involving a question of law is not permitted. Ex parte Dial, Ala., 387 So.2d 879, 881 (1980).

Because of the error shown, the conviction is reversed and the cause remanded to the Covington Circuit Court.

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gene Allen AVANT v. STATE.
    4 Div. 887.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    James W. Parkman, III, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Sexual abuse, first degree; eight years.

On September 13, 1980, the complainant, a thirteen-year-old boy, was riding his skateboard at the end of Stephens Street in Houston County. On that occasion the appellant, a fifty-four-year-old man, drove up and asked directions to a street, and the complainant informed him that he did not know the directions. At that point, the appellant pulled the boy into the car and drove a couple of blocks to a house on Timothy Road. When they got into the house they sat on the couch together and the appellant put his legs across the boy. The appellant removed the boy’s shoes and asked if the complainant wanted him to play with his feet. The boy said no and then the appellant put his hand inside the boy’s pants and felt his private parts.

The complainant stated that he tried to get away, but the appellant kept “holding my leg.” When some of the boy’s friends came riding up into the yard the appellant went to the window and the boy ran out the front door. He ran home and reported the incident to his mother and she called the police.

The complainant said that he did not know the appellant and had never seen him or been in the appellant’s neighborhood before. He stated that he did not yell or scream for help because he was afraid, and when he was “scared” he could say “nothing.”

I

The appellant contends that the State did not present sufficient evidence to prove the offense of sexual abuse in the first degree. He maintains that the sexual contact of the victim was not accomplished throu “forcible compulsion.”

Sexual abuse in the first degree as shown in § 13A-6-66, Code of Alabama 1975, provides:

“(a) a person commits the crime of sexual abuse in the first degree if (1) he subjects another person to sexual conduct by forcible compulsion.”

Section 13A—6—60, Code of Alabama, supra, defines forcible compulsion as:

“Physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

Although there was no testimony of violent physical compulsion, it is clear that the young complainant was in the hands of an adult male who completely overwhelmed him by strength. From the fact that appellant held the boy’s leg when the boy tried to get away, the jury could reasonably infer that the thirteen-year-old was subjected to physical force that overcame earnest resistance.

We note also that even though there was evidence that the young boy had gone to the appellant’s house voluntarily, there was evidence to the contrary which presented a question of facts for the jury. Based on the foregoing, we believe that the State presented sufficient evidence to prove the appellant was guilty of sexual abuse in the first degree.

II

The appellant asserts that there was no evidence that the offense took place in Houston County, Alabama.

In Tanner v. State, 37 Ala.App. 256, 66 So.2d 827 (1952), reversed on other grounds, 259 Ala. 306, 66 So.2d 836 (1953), this court stated:

“Proof of venue is sufficient in a criminal case if, from all the facts and circumstances adduced, venue can be reasonably inferred by the jury.”

See also Allen v. State, Ala.Cr.App., 374 So.2d 447 (1979); Dolvin v. State, Ala.Cr.App., 391 So.2d 666, affirmed, Ala., 391 So.2d 677 (1980).

In the present case, the complainant testified that he saw the appellant in Houston County at the end of Stephens Street where he lived, and that he was taken by the appellant to a house a couple of blocks away on Timothy Road. Without question, a jury in Houston County could infer from these facts that the venue of the offense was in Houston County.

Therefore, we believe the trial court was correct in overruling the appellant’s motion to exclude on the grounds that no proof of venue was presented.

Ill

The appellant insists that the district attorney in closing argument made improper prejudicial remarks.

The specific remarks do not appear in the record, but there is the following reference made by defense counsel:

“MR. PARKMAN. Your Honor, I object to that as being a traffic offense.
“MR. SORRELLS: I didn’t say it was a traffic offense, I said—
“MR. PARKMAN: Or either that is just like a traffic offense and that is not the case here today.
“THE COURT: There are some traffic offenses that are misdemeanors.
“MR. PARKMAN: Your Honor, there are some, but not this particular crime we are talking about here today.
“THE COURT: You don’t need to holler at me to get your point over.
“MR. SORRELLS: I withdraw it, Your Honor.”

In view of the fact that the remarks do not appear in the record, it is impossible for this court to judge their effect within any certainty. Baldwin v. State, Ala.Cr.App., 380 So.2d 388 (1980).

Further, after the district attorney’s withdrawal of the comment, the statement could not be considered prejudicial error unless the statement was ineradicable in the first place. Crook v. State, 42 Ala.App. 270, 160 So.2d 884 (1961), on remand, 42 Ala.App. 274, 160 So.2d 888 (1963), cert. denied, 276 Ala. 702, 160 So.2d 897 (1964). Based on what appears in the record no ineradicable error was shown.

IV

The appellant complains that his warrantless arrest at his home was illegal. Further, he argues that his subsequent confession with a product of that arrest and was not admissible. In support of his contention, appellant has cited Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

In Payton, supra, the United States Supreme Court reviewed two convictions, one involving Theodore Payton and the other, Obie Riddick. Both cases dealt with whether officers could enter a subject’s home to effect an arrest without a warrant when there was ample time to get a warrant. Both can be distinguished from the case at bar on the facts alone. Payton’s arrest occurred two days after the offense, and Riddick’s arrest came one year after authorities learned his identity and connected him with the crime.

The facts in the present case indicate that the offense occurred between 1:00 and 3:40 P.M. There was evidence that immediately after the thirteen-year-old boy ran from the appellant’s house, he told his mother what had occurred and she called the police. Detective Lynn investigated the offense and, after talking to the boy, he arrested the appellant at his house at 3:44 P.M. Taking this evidence in its worst light, the arrest could not have occurred more than two hours after the incident. Under § 15-10-3, Code of Alabama 1975, the officer was empowered to make the arrest without a warrant. See Berry v. State, 27 Ala.App. 507, 175 So. 407 (1937).

Therefore, based on the foregoing facts and citations of authority, we find that the arrest was legal and the subsequent voluntary confession was admissible.

We have examined the record for error and have found none. Therefore, the judgment and conviction by the Houston Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    James FINLEY, alias v. STATE.
    3 Div. 334.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant was indicted for first degree murder and, after a jury trial, convicted of second degree murder and sentenced to ten years.

Appellant was charged, in a nine-count indictment, for the murder of one Herman Flanory by, inter alia, (1) kicking him, (2) stomping him, (3) throwing him on the ground, (4) throwing him on the hood of the car, (5) beating him with his fists, or (6) stabbing him. The State’s evidence showed that about 1:30 A.M. on March 3, 1979, appellant and one Jerry Jarvis, both white males, were seen in the parking lot of the Daylight Grocery Store in Montgomery beating up the victim, an elderly black man they suspected of burglarizing their automobiles. Appellant has spent the evening having drinks at the Corral Club across the street from the grocery store.

The victim was taken to Jackson Hospital and then by ambulance to the VA Hospital in Birmingham where he died. The physician who performed the autopsy testified that, although the victim had pre-existing emphysema, arteriosclerosis and an alcohol-related liver ailment, the “most likely” cause of death was a massive pulmonary fat embolism caused by bone marrow and fat deposits from three fractured bones leaking into his blood system and lodging in the lungs. The victim had a broken arm, thigh bone, and pelvic bone as a consequence of the March 3 beating he sustained. The doctor also testified that the embolism could have been triggered, or hastened, by the victim’s being transported to Birmingham in an ambulance.

Appellant testified in his own behalf that he did not strike, kick or otherwise hurt the victim, he merely inquired whether the victim was trying to break into his (appellant’s) car and helped the victim up off the ground after Jarvis hit him.

I

Appellant moved to exclude the State’s evidence arguing that, among other things, the State had not excluded pre-ex-isting ailments or intervening agencies as causes of death. It is clear, however, that the unlawful act of the accused need not be the sole cause of death. Even if the defendant’s act was only a partial cause accelerating death, the defendant is responsible. Barron v. State, 29 Ala.App. 137, 193 So. 190 (1939); Harvey v. State, 15 Ala.App. 311, 73 So. 200 (1916).

II

Appellant claims the trial court erred by giving a negative answer to the following question posed by the jury after they had begun their deliberations:

“THE COURT: Ladies and gentlemen, I thank you for writing down these questions which you have. I’ll read them out for the record. Question 1, ‘Do we have to agree on one or more counts of the indictment?’ The answer to that question is, no, you do not. You don’t have to agree on one or more counts of the indictment and where there’s an indictment with different counts charging the same offense, the State does not have to elect under which count it would prosecute. It is manifest both from the indictment and the evidence, that there’s no effort to require the defendant to answer to more than one offense, and the purpose and effect of the joinder of the counts was to meet the different aspects in which the evidence might present a single transaction. So the answer to your question of do you have to agree on one or more counts of the indictment, is no.
“MR. SMITH: Your Honor?
“THE COURT: Yes, sir.
“MR. SMITH: We respectfully except to the judge’s thing as to whether or not they have to agree. They do have to agree, all of them, each of them, on one of those counts. They can’t have a majority on this one, and a majority on that one. I think they do have to agree. “THE COURT: You’re making an incorrect statement of the law. Your exception is noted. You’re requested to please argue the law outside the presence of the jury because we don’t want to confuse the members of the jury. I’m charging you that you do not have to agree on one or more counts of the indictment. With that you may retire and resume your deliberations.”

In McDonald v. State, 241 Ala. 172, 1 So.2d 658 (1941), the indictment for murder contained several counts, each averring a different means, as here, by which a single offense, murder, was committed. The Supreme Court stated the following:

“The means by which the offense was committed is not a constituent element of the offense of murder.... It was physically impossible for the defendant to kill the [victim] more than once, therefore, the indictment charged but a single offense, and the appellant’s insistence that he was entitled to a separate verdict as to each count of the indictment is without merit.”

In Cleveland v. State, 20 Ala.App. 426, 103 So. 707, cert. denied, 212 Ala. 635, 103 So. 711 (1925) the court held that in a multi-count murder prosecution, it was not necessary for the trial judge to require the jury to specify under which count they found the defendant guilty; they had a right to return a general verdict of guilty, without specifying as to each count. The trial court’s answer to the jury’s question was, therefore, proper.

We have searched the record and have found no error; the judgment and conviction of the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Robert Lee CARROLL v. STATE.
    8 Div. 506.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      Robert Burdine, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was convicted of theft of property in the first degree and sentenced to ten years in the penitentiary. At arraignment, in the presence of court-appointed counsel, he interposed a plea of not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

On the afternoon of July 5, 1980, at approximately 5:00, the victim, Herschel Goodman, was engaged in the sale of produce from his truck on Redbud Street in the City of Florence, Alabama. While he was dispensing his produce to customers gathered around his truck a young black male came up behind him, grabbed his billfold from his left rear pocket and ran. The victim chased the thief several yards with his open knife and during the chase another young black man tripped him and the thief got away. Just before the thief approached Mr. Goodman he was observed by Goodman coming toward his truck. He had seen him on other occasions and had previously sold him produce but he did not know his name. Mr. Goodman also knew he lived in that neighborhood.

After being tripped Mr. Goodman returned to his truck where he learned the thief’s name from one of the people who had purchased some grapes from him and who had witnessed the incident. Mr. Goodman called the Police Department and reported the theft of his wallet. A few minutes later the police arrived at the scene and got a description of the thief. The officers went to the house of appellant and interviewed him. Appellant was most cooperative and voluntarily showed the officers his pocketbook which contained $78.00, and voluntarily accompanied the officers to the station house where he was photographed. Appellant was not charged at that time and was released on his own recognizance as Mr. Goodman told the officers he only wanted his money returned to him.

While the officers were interviewing appellant Mr. Goodman arrived at the house and positively identified appellant as the man who stole his wallet and ran away. He also made a positive in-court identification of appellant as the thief who grabbed his wallet which contained approximately $500.00 of various denominations, including two $100.00 bills, and testified he had not seen it since it was taken from him.

Officer Virgil Wilson of the Florence Police Department testified he was on duty on July 5, 1980, and he and his partner, Jack Carr, responded to a call that a larceny had been committed at 220 Redbud Street. When they arrived Mr. Goodman told the officers he had been approached by a black male who had come up behind him and removed his wallet from his left rear pocket. Officer Wilson further stated that Mr. Goodman informed him that he had chased the man but could not catch him; that Mr. Goodman told him that he knew the man by sight but did not know the man’s name. However, Officer Wilson stated that the description Mr. Goodman gave him fit appellant Robert Carroll. After receiving this description the officers went to appellant’s home located on the corner of Redbud and Mobile Streets. Appellant answered the door and the officers told him they wanted to talk with him about the larceny of Mr. Goodman’s wallet. While they were on the porch talking with appellant Mr. Goodman arrived and identified appellant as the individual he had been chasing. As a result of this identification the officers requested appellant go with them to the police station where they continued to question him about the incident. Appellant was not arrested on this occasion and Officer Wilson drove appellant back to his house after appellant denied any involvement in the theft of the wallet and stated that he had nothing to hide.

The testimony of Mr. Richard Nance further corroborated that of Mr. Goodman. According to Mr. Nance he was driving on Redbud Street on the afternoon of July 5, 1980, on his way home from work and saw Mr. Goodman, “the vegetable man,” running after appellant with a knife. Nance testified that the two men ran directly in front of his car as he was driving up the hill and that he watched them until they disappeared between two houses. He saw a wallet in appellant’s hands. Mr. Nance further testified that he had known appellant about 21 years and had gotten a good look at him on this occasion. He was positive that appellant was the man he saw with the wallet in his hands as he was being chased by Mr. Goodman.

Appellant did not testify in his behalf but called four witnesses to testify for the defense. Appellant’s wife, Dorothy Carroll, Helen Patterson, Ronnie Cole and Debbie Pace testified on behalf of appellant. Although Dorothy Carroll and Ronnie Cole both testified they were with appellant at his house after Mr. Goodman’s wallet had been stolen, these witnesses were unable to say they were with appellant at the time the wallet was snatched from Mr. Goodman’s pocket.

There was no motion to exclude the State’s evidence and no request for the affirmative charge. The sufficiency of the evidence was raised in a motion for a new trial which was overruled and denied.

Initially, appellant contends the trial court erred in permitting the admission of evidence obtained as a result of an illegal search and seizure. More specifically, it is asserted that, because appellant did not knowingly and voluntarily give his consent to be searched on July 5,1980, any evidence obtained therefrom was required to be excluded from the evidence. At the outset, it must be noted that, although appellant did file a motion to suppress, such motion was never ruled upon by the trial court and, therefore, presents nothing to this court for review. Harris v. State, 57 Ala.App. 558, 329 So.2d 618; Dickerson v. State, 43 Ala. App. 694, 200 So.2d 487.

Appellant also contends the trial court committed reversible error in allowing hearsay evidence to be introduced into evidence. The victim in this case did not know the name of the man who grabbed his wallet.

From the record:

“Q. You say you did not know Mr. Carroll by name at the time this happened?
“A. No, I didn’t know him by name, no.
“Q. How did you know who to tell the police to look for?
“A. I asked that woman that I was weighing the produce up for who it was.
“Mr. Burdine: We’ll object to any questions or answers regarding anything that that woman related to him.
“The Court: Sustained. I will let you ask the question if whoever that person was — was identified as Robert Lee Carroll by someone there. That’s not to prove the truth of the statement anyway. Go ahead.
“A. So I asked that woman who it was and she told me it was Robert Carroll.
“Mr. Burdine: Now, we’ll object to that and ask that the jury be instructed to disregard that statement as purely hearsay.
“The Court: I’ll sustain the objection and disregard it, Ladies and Gentlemen.”

During cross-examination of Mr. Goodman defense counsel elicited the following testimony:

“Q. Did you ever ask anybody who it was that took your billfold? Do you recall ever asking anybody who took your billfold?
“A. I asked that woman while I was selling the grapes there. I didn’t know Robert Carroll by name. I knew him when I saw him, but I didn’t know him by name. There’s a lot of them over there I don’t know by name. I know them when I see them.
“The Court: What did she tell you?
“The Witness: She told me it was Robert Carroll.
“Mr. Burdine: We’ll object to that.
“The Court: Overruled.”

It is settled law that a statement which is useful in identifying a person, time, place or other thing is admissible for that purpose as a hearsay exception. See Gamble, McElroy’s Alabama Evidence 3rd Ed., p. 610, Section 273.01, and cases there cited.

And, too, the trial judge was within his discretion in posing questions to Mr. Goodman. In Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, writ quashed, Ala., 368 So.2d 565, this court held:

“The trial judge is more than a mere moderator and it is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of witnesses. Thus he may ask any question which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and impartiality.”

Appellant’s third contention for a reversal is an assertion that the trial court improperly commented on the evidence in his oral charge to the jury when it stated:

“Now, it’s been a fairly short case, but a number of witnesses have testified for both the State and the defendant. I don’t know that the testimony is particularly in conflict. It might appear to be in conflict. I won’t comment on that. I do say to you that if there’s any way you can reconcile the testimony of every witness so that you can find that they’re all speaking the truth, then you do that. But if you find the testimony is in direct conflict to the point that you just can’t find that everybody’s telling the truth, then you’re going to have to simply determine who to believe and what to believe or what portions of somebody’s testimony to believe. That’s the purpose of the jury. And to help you in determining what to believe and who to believe, there are certain guidelines or certain things you can go by. And first of all, and the most useful tool you have is your good common sense. When you go in that jury room, don’t leave your common sense out here in the jury box. Carry it in there with you and apply it to the facts — Apply it to this evidence as you’ve heard it. You know what goes on between people. You have experiences. You have common knowledge of everyday affairs. That’s what I’m saying to you — that you can use and weigh this evidence. Another thing you can use, ladies and gentlemen, when you get ready to weigh the testimony and decide who to believe and what to believe, is whether or not any witness in this case has an interest, direct or otherwise, in the outcome of this case. If you find that a witness is interested in the outcome of this case — has an interest in how it comes out — then you can weigh that witness’s testimony in that light. If you find further that any witness has just told you a falsehood, corruptly, intentionally, about any part of that witness’s testimony, then you can just throw that witness’s testimony out completely if you want to. You don’t have to. You can believe the part that you think is truthful and throw out the untruthful part, or you, in your discretion, may disregard the entire testimony of that witness if you want to. As I say, you don’t have to, but you may.”

The cases relied upon by appellant in support of his contention that the trial court’s oral charge invaded the province of the jury are simply not in point and do not support such contention. A mere reading of the above quoted part of the oral charge reflects beyond any doubt that there was no invasion of the province of the jury. The rule is that no part of the oral charge is to be tested in isolation, but the court’s oral charge is to be considered as a whole. Brooks v. State, Ala.Cr.App., 353 So.2d 1, and cases therein cited.

Appellant’s final contention is predicated on a remark made by the prosecutor during his closing argument to the jury wherein he stated:

“Mr. Jones: Everybody around that truck said, ‘That was Robert Lee Carroll. We all know him.’
“Mr. Burdine: We object to that. It’s not in evidence.
“The Court: Well, you remember what’s in evidence, ladies and gentlemen, concerning what was said on that occasion, and it’s not for me to say what it was. You remember what it was, because that’s your job and not mine.”

A review of the transcript of the evidence in this case clearly shows the trial court properly allowed the victim, Mr. Herschel Goodman, to testify how, and from whom, he learned the name of his assailant. This testimony was not offered to prove the truth of the matter asserted but solely for the limited purpose of identifying appellant.

The test of a prosecutor’s legitimate argument is that whatever is based on facts in evidence is within the scope of proper comment in argument to the jury. Ala. Dig. Criminal Law Key No. 720(1).

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none.

It took the jury only thirty-five minutes to return a verdict of guilty as charged. At the sentencing hearing the trial court pointed out to appellant that this was his third felony conviction and that if he had been sentenced under the Habitual Offender Act the term of imprisonment could have been life.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Bobby James RICHEY v. STATE of Alabama.
    5 Div. 483.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      G. Houston Howard, II, of Howard, Dunn & Howard, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   ON REHEARING

TYSON, Judge.

On March 14, 1973, Bobby James Richey, appellant, was convicted in Alabama of robbery and sentenced to 12 years’ imprisonment. On March 6,1974, while serving this sentence at the Alabama state cattle ranch, he escaped.

The appellant was subsequently arrested and convicted in Cook County, Illinois, for “possession of a controlled substance” and “assault with intent to murder.” The Illinois trial court sentenced appellant on August 1,1975, to consecutive prison terms for the two Illinois convictions but ordered that they be served concurrently with the Alabama sentence for robbery.

In the meantime, the Alabama Board of Corrections issued a fugitive warrant for appellant, to be used as a “detainer” so that the Alabama authorities would be notified and the appellant would be returned to Alabama at the end of his Illinois prison term. As a result appellant was released to the custody of Alabama officials on September 22, 1978, after being paroled on his Illinois convictions.

On August 22,1979, appellant filed in the Circuit Court of Elmore County, Alabama, a petition for “writ of habeas corpus” (which was amended on November 19, 1979), contending that he should be given credit on his Alabama sentence for the time he was incarcerated in Illinois. After a hearing on this petition, it was duly denied. From this denial of his petition appellant prosecutes this appeal.

This court, as it frequently does, both on original appeal and on post-conviction review, initially affirmed this case without issuing a formal opinion, because, in the opinion of the court, it presented nothing new or novel or any unusual legal questions. Impson v. State, 339 So.2d 1098 (Ala. Cr.App.1976); Craig v. State, 380 So.2d 385 (Ala.Cr.App.1980).

However, because of the earnestness of appellant’s argument on rehearing indicating his desire to further prosecute this appeal, the issues presented, and his request for an opinion pursuant to the provisions of Rule 39(k), Alabama Rules of Appellate Procedure, this opinion follows.

The appellant contends on appeal that his writ of habeas corpus should have been granted and that he should have been given credit for the three and one-half years he spent imprisoned in Illinois, and that he should have been given “good time” credit in Alabama for his good behavior in the Illinois prison system.

I

Initially, the appellant contends that the trial court erred because it did not even consider appellant’s right to a reduction of sentence, but only considered his possible right to immediate release. The facts in this record are to the contrary. (R. 73). The trial court did consider the reduction of the sentence issue.

The appellant further asserts that if it did consider this issue, the trial court erred in not granting him the credits he sought. This assertion is unfounded.

The appellant argues that the Alabama courts should recognize the order of the Illinois trial court which stated that the Illinois sentences would be concurrent with the prior Alabama sentence. There is no rational basis for this argument especially in light of the fact that the crimes committed in Illinois were entirety separate from the robbery in Alabama and were committed while appellant was an escapee from an Alabama institution.

Whatever the Illinois trial court’s justification for ordering concurrent sentences might have been, the Alabama courts are certainly not bound by it. Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970). Of course, the Illinois authorities could have used the order to reduce appellant’s Illinois sentences had appellant been returned immediately to Alabama to finish his imprisonment here first.

The appellant also argues, in the alternative, that the “detainer” filed in Illinois by the Alabama Board of Corrections gave Alabama “constructive custody” and affected appellant’s treatment in the Illinois institutions. There is no evidence in this record, however, that the “detainer” did in fact affect his treatment in Illinois. Furthermore, the “detainer” did not give Alabama “constructive custody” during appellant’s Illinois imprisonment because it did not become effective until appellant’s release from the Illinois institution. Calp v. Warden of Maryland House of Correction, 216 Md. 629, 139 A.2d 506 (1958).

This court has reviewed appellant’s argument and finds the trial court’s denial of his writ of habeas corpus to be entirely proper. There being no error in this record, this cause is hereby affirmed.

AFFIRMED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: VANN, (Ret.), Associate Justice.

text:
    David Monroe GOODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 55086.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Nov. 16, 1981.
    Michael B. Mann of Mann & Komarek, Lynn Haven, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   VANN, (Ret.), Associate Justice.

This appeal by David Monroe Goodwin is from the conviction and imposition of the death penalty following the trial of the appellant on three counts of first-degree murder. After the jury found the appellant guilty, the same jury recommended a sentence of life imprisonment but the trial judge did not follow the recommendation and sentenced the appellant to death. This Court has jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972). Walter Steinhorst and Charles Hughes were also indicted along with the appellant. Appellant’s motion for severance of trial was granted. Walter Steinhorst was tried, convicted and sentenced to death in a separate trial. Charles Hughes was not apprehended until recently and has not been tried for his alleged involvement in the criminal episode.

The complex chain of events leading to the killings began with a meeting in Tallahassee, Florida, on either Thursday or Friday preceding the Sunday of January 23, 1977, when a plan was discussed to carry out a large marijuana smuggling operation on the Gulf Coast near Sandy Creek in Bay County, Florida. The testimony revealed that Bobby Joe Vines had been approached by the Federal Bureau of Investigation for the purpose of setting up a marijuana smuggling operation in an effort to apprehend a reputed drug smuggler, Floyd Capo. Vines hired several persons to help plan and execute the operation and among these were the appellant, Bill Epperson, Steve Long, Chris Goodwin {brother of appellant), Walter Steinhorst and Charles Hughes. The appellant actually contacted his brother and Long, and brought them into the operation. Others involved were Steve Luke-fahr, Tom Lukefahr, David Lukefahr, Tom Byerly, and Lloyd Woods.

After the meeting in Tallahassee, a group including Vines, appellant, Hughes, Stein-horst, and Epperson left for Panama City driving appellant’s van and three ten-wheel trucks. Other members of the group were already in the Panama City area. David Capo, son of Floyd Capo, was in charge of determining each person’s duties. Vines’ duty was to go to the “Gunsmoke,” a shrimp boat, to be standing offshore, and bring the marijuana to the shore to be unloaded. The unloading operation was to begin on Saturday night, January 22, 1977. On that night the group, equipped with the necessary gear, went to the shore to prepare for the unloading, but the initial effort was aborted in favor of the next night. The plans called for two of the large trucks to be placed about a mile and a half from the beach and the other one to be backed up to the shore. When the operation began, Walter Steinhorst was with the two parked trucks, armed with a rifle and pistol.

Four people, Harold Sims, Douglas G. Hood, Sheila McAdams and Sandra McA-dams, riding in an old blue pickup truck, owned and driven by Sims, came upon Ste-inhorst who shot and killed Sims and imprisoned the other three in appellant’s van. After the gunfire, appellant and Lloyd Woods left the beach site and drove to the place of the shooting. There appellant saw the body of Sims in the pickup. After speaking with Steinhorst, appellant appeared shaken. He returned to the loading area to pick up Vines who was returning with the first load of marijuana. Vines and the appellant then returned to see Stein-horst whom they found sitting in the driver’s seat of appellant’s van with the three captives in the rear. At appellant’s request, Vines entered the van to guard the captives while appellant spoke with Stein-horst. Steinhorst had given Vines a gun to guard the captives and after his discussion with appellant he retrieved the gun and entered the van. Vines and the appellant then drove the victim’s pickup truck, with Sims’ body inside, into some bushes. Appellant instructed Vines to tell Hughes that Steinhorst wanted him and that appellant would meet him on the road leading to the parked trucks. Appellant also told Vines that they were going to tie the captives up and give them some money. Vines returned to the beach and informed Hughes of the killing and appellant’s message.

Vines did not again see Steinhorst or Hughes that night, but he did see appellant on the beach. Afterwards, Vines left the loading area and proceeded to a farmhouse located between Quincy and Havana, Florida. Steinhorst and Hughes departed from the loading area in appellant’s van with the body of Sims and the three captives. The captives’ skeletal remains were found in a sinkhole in Taylor County on about August 7, 1977. Steinhorst and Hughes arrived at the farmhouse on Monday in appellant’s van; appellant arrived on Tuesday. On that day, they burned the mattress and some clothes from appellant’s van. Later the appellant gave Vines $2,000.00 to move Sims’ truck.

At trial, Vines testified that everyone feared Steinhorst and Hughes, who had made clear that there would be no loose ends. Vines described appellant as being “real frantic,” “in a panic” and “scared to death” after Steinhorst had shot Sims. Steve Lukefahr testified that appellant could not swallow and asked for water. Luke-fahr also said they were all very scared and that no one could control Steinhorst. Tom Lukefahr also testified that appellant was sick to his stomach with fear and that he could not swallow. The fear that Stein-horst evoked was confirmed by William Ep-person, who said that Steinhorst kept in close touch with everyone after the incident telling them he had already killed four people and “he wanted to make sure he didn’t have to kill any more.” Appellant testified that he feared Steinhorst and Hughes and feared for the safety of his family.

The point raised by appellant as to the constitutionality of Florida’s death penalty statute need not be met because of our reversal of the death sentence infra. The trial judge properly instructed the jury on the defense of duress; therefore, this issue raised by appellant is also without merit. The charge given by the court on circumstantial evidence was adequate and it was not error to deny appellant’s requested charge based on Mayo v. State, 71 So.2d 899 (Fla.1954). Had appellant objected to the remarks of the prosecutor in closing argument and had he moved for a mistrial, such statements complained of, in light of the record, would be harmless. See Clark v. State, 363 So.2d 331 (Fla.1978). There was little dispute as to the events that occurred on the night of January 23, 1977, at Sandy Creek, and of the participation of the appellant in the proceedings that led to the death of the three captives. The sole defense of the appellant was coercion and this was rejected by the jury. In spite of appellant’s contentions to the contrary, there was sufficient evidence for the trial judge to deny appellant’s motion for judgment of acquittal and to support the jury’s verdict of guilty on all three counts.

Appellant argues based on Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977), and State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), that he cannot be convicted of first-degree felony murder because he was not present during the actual murders of the three captives. This argument is patently fallacious for as we pointed out in Enmund v. State, 399 So.2d 1362 (Fla.1981), “if the accused was present aiding and abetting the commission or attempt of one of the violent felonies listed in the first-degree murder statute [kidnapping], he is equally guilty, with the actual perpetrator of the underlying felony, of first-degree murder.” At p. 1370. Appellant’s presence during the actual killings is simply irrelevant for the purposes of this issue; the critical fact is his participation in the underlying felony. There is ample evidence proving that appellant was a principal to kidnapping. As perpetrator of the underlying felony, he is a principal in the homicide. See Adams v. State, 341 So.2d at 768.

Although the crimes for which the appellant was convicted were cold-blooded and cruel, the appellant was not present at the time of the killings. Though the appellant may have thought the three victims he had helped tie up might be killed, and he may have later been glad that they were killed because one of the victims had recognized him, he was not the “trigger man” nor was he present during the killings. There was an abundance of testimony as to the fear that appellant had of Steinhorst and Hughes. Although the jury rejected this fear as coercion by its verdict of guilty, its recommendation of a sentence of life imprisonment could have indicated that the jury thought the fear had motivated appellant’s participation in the tragic events. The facts of this case do not warrant the ultimate penalty. We do not intimate, however, that the presence of the defendant at the murder is always necessary for imposition of death.

Accordingly, the judgment of guilty on all three counts is affirmed. The sentence imposing the death penalty is hereby vacated and the cause is remanded to the trial court for imposition of life sentences without eligibility for parole for 25 years pursuant to Tedder v. State, 322 So.2d 908, 910 (Fla.1975), in which this Court stated:

A jury recommendation under our trifur-cated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.

It is so ordered.

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

BOYD, J., concurs in the affirmance of the convictions but, finding that the sentence of death is appropriate to this case, dissents from the reduction of sentence to life imprisonment.


author: ENGLAND, Justice.

text:
    Eugene H. CARLSON, Appellant, v. STATE of Florida, Appellee. Curtis GOLDMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 58632, 58679.
    Supreme Court of Florida.
    Aug. 6, 1981.
    Rehearing Denied Nov. 16, 1981.

      Susan F. Schaeffer of Schaeffer & Bauer, St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., and G. P. Wald-bart, Asst. Atty. Gen., Tampa, for appellee.
   ENGLAND, Justice.

Once again, as so frequently occurred before the 1980 amendment to Florida’s Constitution, we are presented with an array of constitutional challenges to a criminal statute. In this case we have on appeal a trial court order which upholds sections 943.46-943.464, Florida Statutes (1977), of the Racketeer Influenced and Corrupt Organization (RICO) Act. The subsidiary question presented by Eugene Carlson is whether, under double jeopardy principles, his conviction for the crime of keeping a house of ill fame, in violation of section 796.01, Florida Statutes (1977), precludes his subsequent trial under Florida’s RICO Act for maintaining or operating a house of prostitution in violation of section 796.-07(2)(a), Florida Statutes (1977).

I

Section 943.462(3), Florida Statutes (1977), makes it unlawful to conduct or participate in any enterprise through a “pattern of racketeering activity.” A “pattern” of racketeering activity is defined under the Act to include “at least two incidents of racketeering conduct that ... are interrelated . . . and are not isolated. . .. ” § 943.461(4), Fla.Stat. (1977). “Racketeering activity” is defined to include certain specified crimes under state law and under the federal RICO Act, among which are certain offenses relating to prostitution under Chapter 796. § 943.461(l)(a) 13, Fla.Stat. (1977).

Appellants allege numerous constitutional infirmities in the RICO Act, including abridgment of vagueness and overbreadth principles, violation of the bans against cruel and unusual punishment and ex post facto laws, and contravention of the one subject requirement of article III, section 6 of Florida’s Constitution. None of these challenges are sustainable, however.

The phrase “conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity” in section 943.462(3) is not unconstitutionally vague, in that men of ordinary intelligence can ascertain the conduct proscribed. Jordan v. State, 334 So.2d 589 (Fla.1976); Newman v. Carson, 280 So.2d 426 (Fla. 1973). The operative terms of that provision — “enterprise,” “pattern,” and “racketeering activity” — are statutorily defined, and they have already been upheld in the face of vagueness challenges. State v. Whiddon, 384 So.2d 1269 (Fla. 1980); Moorehead v. State, 383 So.2d 629 (Fla. 1980). The term “participate” is not itself vague. “[Wjhere a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.” State v. Hagan, 387 So.2d 943, 945 (Fla.1980).

The statute does not impose cruel and unusual punishment, see, e. g., Dorminey v. State, 314 So.2d 134 (Fla.1975) (determination of maximum and minimum penalties for violation of laws remains a matter for the legislature), and it is not an ex post facto law, see State v. Whiddon, 384 So.2d at 1271 (RICO Act may be applied retroactively so long as one predicate offense occurred after effective date of the Act).

The title of the Act is in accord with the purposes of article III, section 6 of the constitution — to assure adequate notice of the subject matter of the legislation and to avoid unfair surprise and fraud upon the public. State v. McDonald, 357 So.2d 405, 407 (Fla. 1978).

Finally, we do not address appellants’ claim that the Act is overbroad because it may apply to certain misdemeanors which are unrelated to organized crime. Appellants were charged with the serious offense of maintaining a house of prostitution, and they obviously lack standing to raise this argument. See Moorehead v. State, 383 So.2d at 631.

II

Carlson was convicted of maintaining a house of ill fame for the purposes of prostitution, in violation of section 796.01. Subsequently, both he and Curtis Goldman were charged under the RICO Act for conducting or participating in an enterprise through a pattern of racketeering activity, in violation of section 943.462(3). The predicate offense underlying this pattern of racketeering activity was the alleged operation of a house of prostitution in violation of section 796.07(2)(a), encompassing the same time span as that of Carlson’s previous conviction. Carlson contends that the double jeopardy clause bars his prosecution under the RICO statute since that offense is based solely on the same conduct which sustained his previous conviction under section 796.01.

The double jeopardy clause of the fifth amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb,” and it is applicable to the states through the due process clause of the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court observed that the double jeopardy clause affords criminal defendants three related protections. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Id. at 717, 89 S.Ct. at 2076 (footnotes omitted). Here we are concerned with the second of these guarantees.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the Supreme Court quoting from Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) set forth the test for determining whether two offenses are the “same” for purposes of barring successive prosecutions: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct. at 182. This test was reaffirmed in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), where the Supreme Court stated that the Block-burger test “focuses on the proof necessary to prove the statutory element on each offense, rather than on the actual evidence presented at trial. Thus ... ‘if each statute requires proof of an additional fact which the other does not,’ the offenses are not the same under the Blockburger test.” Id. 447 U.S. at 416, 100 S.Ct. at 2265 (emphasis in original and citation omitted).

Section 796.01 — under which Carlson was formerly convicted — provides that “[w]hoe-ver keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness, shall be guilty of a misdemeanor of the first degree .. . . ” In Campbell v. State, 149 Fla. 701, 6 So.2d 828 (1942), we stated that there are three elements of the offense of keeping a house of ill fame: “the ill fame of the place in question, its use for prostitution or lewdness, and its maintenance by the defendant.” Id. at 702, 6 So.2d at 828. Section 796.07(2)(a) — the offense underlying Carlson’s RICO prosecution — provides that “it shall be unlawful in the state... [t]o keep, set up, maintain, or operate any place, structure, building or conveyance for the purpose of lewdness, assignation, or prostitution.” A plain reading of section 796.-07(2)(a) reveals that the state must prove two elements in order to obtain a conviction under this statute: the use of the place in question for prostitution, lewdness or assignation, and its maintenance or operation by the defendant.

Applying the Bloekburger test, we see that the offense of maintaining and operating a house of prostitution, in violation of section 796.07(2)(a), requires no proof beyond that which is necessary for conviction under section 796.01. For double jeopardy purposes, we conclude that the former offense, when used as the sole basis to establish a pattern of racketeering activity proscribed by section 943.462(3) of Florida’s RICO Act, is by definition the “same” as the latter offense. The same conduct cannot, under the guise of a RICO prosecution, be fragmented so as to create two separate offenses. See Brown v. Ohio, 432 U.S. at 169, 97 S.Ct. at 2227, a non-RICO prosecution in which the Court said:

The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.[]

We hold that Carlson’s conviction under section 796.01 barred his subsequent prosecution under Florida’s RICO Act for maintaining or operating a house of prostitution in violation of section 796.07(2)(a). We reverse the conviction of the RICO charge against Carlson, and we affirm the trial court’s judgment as to Goldman.

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

      . After April 1, 1980, no direct appeals from trial court orders come to this Court in matters which do not involve a bond validation or the imposition of a death sentence. See Art. V, § 3(b)(1), (2), Fla. Const.

      . See Note, Racketeers and Non-Racketeers Alike Should Fear Florida’s RICO Act, 6 Fla.St. U.L.Rev. 483 (1978).

      .The state, citing Atkinson v. State, 156 Fla. 449, 23 So.2d 524 (1945), argues that since a violation of section 796.01 requires proof of a fact which section 796.07(2)(a) does not — the ill fame of the place in question — these statutory proscriptions are not the “same” offense for double jeopardy purposes. This argument, however, overlooks the reciprocal nature of the Bloekburger test, which mandates that a violation of section 796.07(2)(a) requires proof of a fact which section 796.01 does not. This, as stated above, is clearly not the case. The former crime is, in essence, a lesser-included offense. In any event Atkinson, in which this Court merely held that section 796.07(2)(a) did not repeal by implication section 796.01, is irrelevant to the double jeopardy question presented here.

      . Our holding here, of course, does not prohibit the use of a conviction for this or any other offense in combination with other separate offenses as a basis for a possible RICO prosecution under section 943.462.

      . The sequence of the prosecution under section 796.01, Florida Statutes (1977), and the RICO Act is immaterial. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226 (1977).


author: PER CURIAM.

text:
    Cynthia Sue JESTER, Appellant, v. STATE of Florida, Appellee.
    No. 81-176.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 1981.
    William J. Sheaffer, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed. Brown v. State, 376 So.2d 382 (Fla.1979); Campbell v. State, 386 So.2d 629 (Fla. 5th DCA 1980).

COBB, FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.


text:
    Lawrence DePISO and Gladys DePiso, Husband and Wife, Appellants, v. Jay Paul HAMEL, Trader Jacks of Lauderdale by the Sea, Inc., and State Automobile Insurance Company, Appellees.
    No. 80-2131.
    District Court of Appeal of Florida, Second District.
    July 22, 1981.
    Rehearing Denied Oct. 28, 1981.
    Peter W. Martin of Martin, Stinnett & Graves, Sarasota, for appellants.
    L. Floyd Price and John R. Dorough of Price & Price, Chartered, Bradenton, for appellees.
   PER CURIAM.

The First District Court of Appeal has upheld the constitutionality of section 627.-7372, Florida Statutes (1977), the statute challenged here, in McKee v. City of Jacksonville, 395 So.2d 222 (Fla. 1st DCA 1981), and we are in accord with that decision. We find no merit to the other points raised by appellants. Accordingly, the final judgment is AFFIRMED.

BOARDMAN, A. C. J., and GRIMES and RYDER, JJ., concur.


author: HUBBART, Chief Judge.

text:
    Mario Abelardo VAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1525.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Rehearing Denied Nov. 12, 1981.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne Lantz, Asst. Atty. Gen., and Michael Van-detti, Legal Intern, for appellee.
    Before HUBBART, C. J., HENDRY, J., and TILLMAN PEARSON, (Ret.), Associate Judge.
   HUBBART, Chief Judge.

The dispositive issue on this appeal is whether a motion lies to sever a count in an indictment charging unlawful possession of a firearm by a convicted felon [§ 790.23, Fla.Stat. (1979)] from other counts charging other crimes in the same indictment. We hold that such a motion lies under Fla.R. Crim.P. 3.152(a)(2)(i), that it is an abuse of discretion for a trial court to deny such a motion, where the state’s anticipated proof at trial of the defendant’s prior felony conviction on the convicted felon^jrearm pos. session count of the indictment would be otherwise inadmissible in evidence as to the other counts of the same indictment. It is our conclusion that such a severance of counts lies under the above circumstances because it is necessary “to promote a fair determination of the defendant’s guilt or innocence of each offense.” Fla.R.Crim.P. 3.152(a)(2)(i). As the defendant’s motion for severance in the instant case was, in our view, improperly denied below, we reverse and remand for a new trial.

I

The defendant Mario Vazquez was charged in a three-count indictment returned by the Dade County Grand Jury with: (1) first degree murder [§ 782.-04(l)(a), Fla.Stat. (1979)]; (2) unlawful possession of a firearm by a convicted felon [§ 790.23, Fla.Stat. (1979)]; and (3) unlawful display of a firearm during the commission of a felony [§ 790.07(1), Fla.Stat. (1979)]. The defendant, after entering a plea of not guilty before the Circuit Court for the Eleventh Judicial Circuit of Florida, filed a pretrial motion to sever count II of the information on the ground that the “evidence necessary to prove [c]ount II, i. e., that the [defendant is a convicted felon, would prejudice the [defendant in his defense of the remaining counts” and that “evidence of the [defendant's prior conviction[s] has no bearing on the remaining counts [of the indictment], and, in the absence of [e]ount II, would be inadmissible.” [R. 46]. This motion was denied by the trial court, was renewed at trial by defense counsel, and was again denied by the trial court.

The state established at trial, over objection by the defendant, that the defendant had been convicted of a robbery in 1975. The state’s evidence on this issue consisted of an information charging the defendant with three separate robberies, a judgment of conviction and sentence for robbery establishing that the defendant pled guilty to one count of robbery and was sentenced to ten (10) years in prison, and fingerprint evidence linking the defendant to the above felony conviction. The details of the three robbery charges were in substance contained in the above information which went to the jury. This proof, without dispute, was admissible on count II of the indictment, but was in no way admissible on the other two counts of the indictment. The record also reveals a sharp conflict in the evidence at trial as to whether the defendant committed the charged murder or was elsewhere at the time the murder was perpetrated. 1

The trial court instructed the jury at the close of all the evidence that the defendant was not on trial for crimes not charged in the indictment or necessarily included therein; the trial court also gave other jury charges which the state contends “made it clear to the jury that the defendant’s past [robbery] conviction should have no bearing on the instant murder charge.” [State’s brief pp. 8-9].

The jury found the defendant guilty of second degree murder as a lesser included offense, unlawful possession of a firearm by a convicted felon, and unlawful display of a firearm during the commission of a felony. The trial court imposed a sentence of life imprisonment plus fifteen (15) years imprisonment on the first two convictions, the sentences to run consecutively. No sentence was imposed on the third conviction. This appeal follows.

II

All agree that count II of the indictment charging unlawful possession of a firearm by a convicted felon was, as an initial matter, properly joinable with the other two counts of the indictment herein under Fla. R.Crim.P. 3.150(a) as all three counts charged crimes which were “based on the same act or transaction.” The parties sharply divide, however, as to whether a severance of count II was nonetheless mandated in this case by Fla.R.Crim.P. 3.152(a)(2)(i) which provides as follows:

“(2) In case two or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the State or of a defendant
(i) before trial upon a showing that such severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense . . . . ”

The defendant contends that such a severance was required by the above rule; the state contends that the above rule is inapplicable. We agree with the defendant.

A

It is the established law of this state dating back to 1886 that evidence of any crime committed by a defendant, other than the crime or crimes for which the defendant is on trial, is inadmissible in a criminal case where its sole relevancy is to attack the character of the defendant or to show the defendant’s propensity to commit crime. See e. g., Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), and cases collected; Mann v. State, 22 Fla. 600 (1886); Selph v. State, 22 Fla. 537 (1886); Green v. State, 190 So.2d 42 (Fla.2d DCA 1966), and cases collected. A motion for mistrial almost always lies upon the introduction of such evidence at trial, and the error in denying same necessarily constitutes reversible error. See e. g., Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), and cases collected; Randall v. State, 239 So.2d 81, 82 (Fla.2d DCA 1970). The theory behind this line of cases is that such evidence, with rare exceptions, is so overwhelmingly prejudicial to a defendant that the presumption of innocence is thereafter destroyed and a fair trial rendered impossible. See e. g., Boyett v. State, 95 Fla. 597, 116 So. 476 (1928).

In the instant case, powerful documentary evidence was introduced in evidence at trial establishing that the defendant had committed a prior felony, to wit: a robbery, and was duly convicted thereof in 1975. An information charging the subject robbery [along with two other robberies], together with the judgment of conviction and sentence showing the entry of a guilty plea, all went to the jury. Although clearly admissible and, indeed, absolutely required to establish count II of the indictment, all agree that this evidence was inadmissible on the remaining murder and firearm display counts of the indictment under the above line of Williams decisions because the sole relevancy of the evidence on these counts was to attack the defendant’s character and to show his propensity to commit crime. Based on the above-stated law, the subject evidence was so prejudicial to the defendant that it deprived him of a fair trial on the indictment before the court. To avoid this manifest injustice, it is our view that a severance on count II was called for by Fla.R.Crim.P. 3.152(a)(2)(i) as essential to promote a fair determination of the defendant’s guilt or innocence.

In this connection, we are entirely unpersuaded by the state’s argument that the trial court’s cautionary instructions preserved a fair trial for the defendant and made a severance here unnecessary. As the Williams line of cases teaches and common sense confirms, the above inadmissible evidence was too powerful, too damning, and too prejudicial for any conscientious jury to disregard pursuant to the above jury charge. Cautionary instructions of this sort have their place in our law, but are utterly ineffective when applied, as here, to such powerful prejudicial evidence. Compare Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). “The danger of a miscarriage of justice lies in the real possibility that, in spite of correct instructions, the [prior] conviction, irrelevant to the [present] count, will negate any reasonable doubt of defendant’s guilt . .., that he will be convicted ‘on principle.’ ” Walker v. Superior Court, 37 Cal.App.3d 938, 112 Cal.Rptr. 767, 769 n.1 (1974).

We are supported in the result we reach in this case by a recent decision of the Fifth District Court of Appeal with which we entirely agree. Orr v. State, 380 So.2d 1185 (Fla. 5th DCA 1980). We are further supported by the clear weight of authority in the country on this subject which has addressed the issue in depth. State v. Middleton, 143 N.J.Super. 18, 362 A.2d 602 (1976), aff’d, 75 N.J. 47, 379 A.2d 453 (N.J.1977); Commonwealth v. Carroll, 275 Pa.Super. 241, 418 A.2d 702 (1980); Walker v. Superior Court, 37 Cal.App.3d 938, 112 Cal.Rptr. 767 (1974); contra State v. Campbell, 615 P.2d 190 (Mont.1980); Sexton v. State, 397 A.2d 540 (Del.1979). Finally, we conceive our result to be in perfect accord with, if not compelled by, the above Williams line of decisions. See also State v. Harris, 356 So.2d 315 (Fla.1978).

B

In reaching this result, we have not overlooked our decision in Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975), overruled on other grounds, Williams v. State, 346 So.2d 67 (Fla.1977), upon which the state relies before this court. We conclude, however, that Panzavecchia is not controlling because there, unlike the instant case, the defendant himself introduced in evidence at trial proof of his prior felony conviction and thus waived whatever pretrial right to a severance he may have had on the count charging unlawful possession of a firearm by a convicted felon. We have similarly held in Maycock v. State, 398 So.2d 495 (Fla. 3d DCA 1981), that a defendant also waives his right to the above-stated severance where he stipulates at trial that he has a prior felony conviction. Indeed, we specifically limited our holding in Panzavecchia to the precise facts of the case, which facts on the issue of waiver find no counterpart in the instant case. Moreover, to the extent that Panzavecchia contains dicta which sanctions the denial of motions for severance similar to the one in the instant case, such dicta is disapproved.

Ill

We have carefully considered the other contentions raised by the defendant upon this appeal and find them to be without merit. Dupree v. State, 125 Fla. 58, 169 So. 600 (1936); Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3d DCA), cert. denied, 364 So.2d 886 (Fla.1978); Durcan v. State, 350 So.2d 525 (Fla. 3d DCA 1977); Jackman v. State, 140 So.2d 627, 629 (Fla. 3d DCA 1962); § 924.33, Fla.Stat. (1979). The convictions and sentences under review in this case are, accordingly, reversed and the cause is remanded to the trial court with directions to order a new trial. Count II of the indictment shall be severed from the other two counts of the indictment for new trial purposes.

Reversed and remanded for a new trial.

      . The defendant also offered to stipulate at trial that the defendant had a prior felony conviction, which stipulation was rejected by the state. It should be noted that had the stipulation been accepted, the defendant would have waived the severance issue for appeal, Afay-cock v. State, 398 So.2d 495 (Fla. 3d DCA 1981), or, at the very least, might have so minimized the prejudice to him that a reversal here would not have been in order. See Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981).

      . State v. Davis, 203 So.2d 160, 162 (Fla.1967) (“Davis was charged with possession of a pistol after he had been convicted of a felony. This crime cannot be committed unless the individual charged is an ex-felon. His prior conviction is a substantive element of the crime charged.”); Ferguson v. State, 379 So.2d 163, 165 (Fla.3d DCA 1980); State v. Dixon 193 So.2d 62 (Fla. 2d DCA 1967); see also Warren v. State, 74 So.2d 688 (Fla. 1954); Sparkman v. State Prison Custodian, 154 Fla. 688, 18 So.2d 772 (1944); Clinton v. State, 143 Fla. 356, 196 So. 684 (1940); Coulson v. State, 110 Fla. 279, 149 So. 521 (1933); Timmons v. State, 97 Fla. 23, 119 So. 393 (1929); Ballard v. State, 96 Fla. 566, 119 So. 146 (1928). Contra, Hall v. State, 400 So.2d 102 (Fla. 1st DCA 1981).

      . “In the circumstances of this case we are impelled to conclude that denial of the defendant’s motion for severance of the offenses did not represent an abuse of discretion by the trial court.” [emphasis added] Panzavecchia v. State, 311 So.2d at 784.


text:
    BRYAN & GREENLEES REAL ESTATE, INC., Appellant, v. J. Robert NORMAN, Appellee.
    No. 79-1306.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Rehearing Denied Nov. 10, 1981.

      J. Stockton Bryan, Stuart, for appellant.
    John R. Bush and Claude H. Tison of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   PER CURIAM.

The issue on appeal is whether the trial court properly granted a directed verdict in favor of the defendant/vendor at the close of the plaintiff/real estate broker’s case. We hold that the plaintiff failed to establish a prima facie case demonstrating his entitlement to a real estate commission and, consequently, we affirm.

Viewing the testimony in the light most favorable to the plaintiff, we find that the plaintiff/real estate broker had an oral contract with the defendant/vendor which, in essence, constituted a non-exclusive listing on a piece of property in Martin County. As a result of this agreement, the broker presented the vendor with an offer of purchase which, according to the broker, was acceptable to the vendor except for the fact that it did not contain a provision which would permit the vendor to elect between specific performance and liquidated damages in the event of a default by the purchaser. In the ensuing interval of a few hours during which the broker obtained the purchaser’s agreement to the default provision, the vendor decided to accept an earlier offer from another party. Next, the broker notified the vendor’s lawyer that the default clause was acceptable and shortly thereafter was told that the vendor had decided to sell to another party. Based on these facts the broker sued for his commission.

We concur with the trial court that the foregoing facts are insufficient to establish a prima facie case of appellant’s entitlement to a commission. “[T]he mere verbal accord between the parties as to the price is not the sole ingredient of the agreement to buy and sell sufficient to entitle the broker to a commission.” McAllister Hotel, Inc. v. Porte, 98 So.2d 781, 784 (Fla. 1957). To be entitled to a commission, the broker must “produce a purchaser who is ready, willing and able to close the transaction not only for the stipulated price but upon other essential terms which are acceptable to the owner.” Id., at 783. Moreover, absent an agreement that the listing contract will be kept in force for a specified period of time, the vendor is free to terminate the listing at any time and to accept another offer of purchase without incurring liability to the broker. Cf. Leon Realty, Inc. v. Bradwell, 271 So.2d 771 (Fla. 1st DCA 1972).

Since the broker in the case at bar did not produce a buyer who was ready, willing and able to accept all of the vendor’s terms prior to the time that the vendor decided to accept another offer of purchase, we conclude that the broker is not entitled to a commission. Accordingly, the judgment is

AFFIRMED.

LETTS, C. J., and DOWNEY and HURLEY, JJ., concur.


author: ERVIN, Judge.

text:
    Vernie M. SMITH, Appellant, v. SCHOOL BOARD OF LEON COUNTY, Florida, Appellee.
    No. UU-369.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1981.
    Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellant.
    Charles A. Johnson, Tallahassee, for ap-pellee.
   ERVIN, Judge.

Smith, a non-instructional employee of the Leon County School Board, appeals only that portion of a final administrative order of the Board which approved a hearing officer’s recommended order denying her back pay during the period of her suspension from employment. Smith raises two points: (1) Whether the Board erred in adopting the officer’s recommended order that Smith’s conduct constituted misconduct in office and “gross insubordination” within the ambit of Section 231.36(1), Florida Statutes, and (2) whether the Board’s order penalized protected free speech and expression. Because of our disposition of the first point in favor of Smith, we do not reach the constitutional issue assigned under point two.

The appellant was suspended on May 10, 1979, with pay, pending a final hearing on the question whether she should be permanently discharged. The suspension was prompted by what the hearing officer referred to as “the evaluation form incident” which occurred on May 9, 1979. On that date, Conway McGee, the Director of Transportation for the Leon County School System, and the appellant’s immediate supervisor, called the appellant into his office and handed her a copy of an evaluation of her work performance. The evaluation indicated an overall unsatisfactory rating; six out of ten categories on the form were marked as unsatisfactory. After the appellant read the evaluation report, she became upset, evincing her displeasure by crumpling the form into a small ball and throwing it toward McGee’s desk, stating at the same time, “This is what I think of this and you too.”

On June 12, 1979, the superintendent brought formal charges alleging as grounds for dismissal misconduct in office, willful neglect of duty, gross insubordination, and incompetency. Some of the charges were based on the evaluation form incident, as well as several other work-related incidents which preceded, and formed the basis for the unsatisfactory evaluation. Later, on June 26, 1976, the School Board considered the charges, suspended Smith from employment without pay, and referred the charges for hearing before the Division of Administrative Hearings. The hearing officer’s recommended order rejected all charges, except those based on the evaluation form incident, as baseless. Concerning that incident, the order found that the appellant had been guilty of gross insubordination and misconduct in office; that her acts displayed disrespect to her superior, and that she had flaunted McGee’s authority in front of her fellow employees. The incident, in the hearing officer’s view, was the culmination of growing friction between the appellant and McGee; friction caused by a relationship characterized by the officer as a “personality conflict emerging between a new supervisor and a subordinate with many years of service.” In his opinion, “the culpability for such conflict [should be] shared in part by both parties.” On the other hand, the officer noted the appellant’s past, long-standing good record, and then recommended that her nine months’ suspension without pay be considered sufficient punishment; that she be reinstated and transferred to another position, and that an official reprimand be placed in her file. The School Board adopted the hearing officer’s findings of fact and conclusions of law and accepted his recommendations.

We conclude from this record that the Board erred in denying appellant pay during the nine-month suspension period because appellant’s conduct neither constituted “misconduct in office” nor “gross insubordination” as those terms are used in Section 231.36(6), Florida Statutes (1979).

Parenthetically, we observe that Section 231.36(6) does not define the terms “misconduct in office” or “gross insubordination.” The hearing officer’s order points out in its second conclusion of law that those terms are defined in Chapter 6B-4, Florida Administrative Code; it also correctly acknowledges that they apply to instructional personnel only — not to a school district’s administrative employees. Nevertheless, the definitions of those terms serve as useful analogues to the issues before us. Rule 6B-4.09(3) provides:

Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to impair the individual’s effectiveness in the school system.

Rule 6B-4.09(4) provides:

Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority, (e.s.)

Were the above definitions applicable to the appellant, she unquestionably would have been absolved from guilt since her conduct fits within neither of the two definitions.

As to the latter charge, her actions did not meet the definition of “gross insubordination” since they were an isolated outburst and could not have been deemed “constant or continuing.” Moreover, the record did not establish, nor did the hearing officer find, that the appellant refused to obey any order of McGee’s, unless the evaluation report given to Smith could somehow be considered an order. If it were, the “order” could hardly be deemed a reasonable one since related charges that were based upon the unsatisfactory items in the evaluation report were later determined to be without foundation.

The appellant’s acts could at most be described as contemptuous. The word “contemptuous” is not synonymous with the word “insubordination” as those words are commonly used. See definition in The American Heritage Dictionary of The English Language, New College Edition (1976). We are cognizant that our decision in Muldrow v. Board of Public Instruction of Duval County, 189 So.2d 414 (Fla. 1st DCA 1966), appears, to equate the word “insubordination” with the word “contumacious”; however, the Muldrow court was addressing a charge of “insubordination” under the Duval County Teacher Tenure Act that superseded the provisions of Chapter 231.-36(6), as to teachers within the Duval County School District. Section 231.36(6), the statute upon which the charges here are based, imposes upon the Board proof of a more serious degree of conduct than mere insubordination. Thus, even if Smith’s response to her superior’s evaluation could be characterized as insubordinate, one isolated act of contempt is not synonymous with “gross insubordination.”

Nor did the appellant’s conduct meet the definition of “misconduct in office.” Rule 6B — 4.09(4) requires that an act of misconduct be a violation of the Code of Ethics as outlined in Rule 6B-1. The thrust of the code deals with a teacher’s relationships with the public or with the school administration as it affects the public. Courts in other jurisdictions have generally construed the term as requiring that the employee's conduct adversely affect her relationship with the public. See generally 27 Words and Phrases, Misconduct in Office, 492-496 (1961). Here the appellant’s behavior was purely an interoffice dispute which occurred after office hours. This incident— as the record before us reflects — had no bearing on her exercise of her duties to the public. See Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978). Cf. Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975).

In conclusion, the appellant’s actions in response to her evaluation report, forceful though they were, did not constitute “gross insubordination” or “misconduct in office” as those words are used in their normal meaning. If the Board wishes to articulate policy which sets different standards of conduct for its administrative employees than for its instructional personnel, it is not precluded from doing so as long as there is a record foundation in support of that policy. See Florida Cities Water Co. v. Florida Publ. Serv. Comm’n., 384 So.2d 1280 (Fla.1980). Cf. Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981). Additionally, since the provisions of Section 231.36 are penal in nature, School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980), and the loss of back pay is a serious penalty, the analysis in Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), is instructive. There we required an elevated standard of competent substantial evidence, stating:

[W]hen the standards of conduct to be enforced are not explicitly fixed by statute or by rule, but depend on . . . debatable expressions .. .; when the conduct to be assessed is past, beyond the actor’s power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as “substantial” as the consequences.

394 So.2d at 172.

Here, as in Bowling, the Board’s abstract statutory interpretations, based merely on the conduct of the appellant for which the hearing officer found McGee also partially responsible, was not supported by such a record foundation. See also Decor Painting v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981). Cf. Texton v. Hancock, supra.

We are aware that Bowling’s elevated standard of proof only applies to adjudicative rather than legislative facts, and we realize that the instant case involves a combination of both. Nevertheless, as Bowling also observes, even though the facts involved are termed legislative, “if they are reasonably susceptible to some kind of proof, ...”, the responsible agency should offer evidence in support of them. See 394 So.2d at 174, n. 17. Here the Board presented no such evidence as to either category, nor offered any explanation why the missing legislative facts were not susceptible to conventional proof.

That portion of the Board’s order sustaining Smith’s suspension without pay is vacated.

LILES, WOODIE A. (Retired) and PEARSON, TILLMAN (Retired), Associate Judges, concur.

      . We note that if the evidence here had supported a finding that appellant was guilty of certain criminal acts, then dismissal would no doubt be justified under Section 231.36. See Ford v. Bay County School Board, 253 So.2d 728 (Fla. 1st DCA 1971); Texton v. Hancock, supra. As in Texton, however, the record here does not indicate that the appellant was guilty of any crime.

      . “Adjudicative facts are the facts about the parties and their activities, businesses and properties .... Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.” 1 Davis, Administrative Law Treatise, Sec. 702 at p. 413, cited in Bowling, 394 So.2d at 174, n. 17.