author: DeCARLO, Judge.

text:
    Michael Dennis LEHR v. STATE.
    7 Div. 680.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.

      Andrew W. Bolt, II of Wilson, Bolt, Isom, Jackson, Bailey & Owens, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Murder, second degree; thirty years.

The appellant was indicted by the Calhoun County Grand Jury for the murder of Rodney Paul James, by shooting him with a shotgun.

In support of this indictment the State presented the following evidence.

Sherry Roberts, the victim’s girlfriend, testified she spent the night with Rodney James before the morning of the shooting. She and the victim took the drug “PCP” that night, and then slept soundly. The following morning, she and James went to the house trailer of appellant and his wife, Sheila Lehr. James and appellant left for a short while and returned with milk and a package of disposable hypodermic syringes. When they returned to the trailer, they took two of the syringes and stated they were going to Ohatchee. The two men left in appellant’s truck, while Ms. Roberts remained at the trailer with Sheila Lehr.

Two or three hours later, appellant returned to the trailer alone and told Sherry and Sheila that he left the victim at the creek because he had “O.D.’d” on methe-drine. Appellant said he was going to get someone and go back to see if the victim was alive. He left, and then returned some forty-five minutes later and stated that Rodney James was dead. He also had the victim’s ring with him and offered Sherry the ring, which she refused. He told her to keep her mouth shut and he would take anything from the victim’s body she wanted. Appellant then took Sherry Roberts to her house and left her there.

The story appellant told Sherry Roberts and Sheila Lehr as to the victim’s death began to unravel when witness, Clyde Car-lisle, found the victim leaning on a car parked on the Ohatchee road on the same afternoon of July 18, 1978. The victim appeared to have been bleeding badly from two gunshot wounds and a gash on his forehead. He was still bleeding and was very white and weak. The victim told Car-lisle that appellant had shot him. Mr. Car-lisle then took the victim to the Fuller’s Bait Shop, where an emergency unit came and picked up the victim.

Joe Fincher, Chief of the Alexandria Fire Department testified he went to Fuller’s Bait Shop in answer to a reported shooting. Chief Fincher, an emergency medical technician, rendered aid to the victim. He said James was sitting in a chair, semi-conscious, and bleeding badly. When questioned by Fincher as to who shot him, James responded that appellant Lehr had shot him. The victim stated that Lehr had shot him “on purpose,” as opposed to accidentally, and that he had taken no drugs or medication. Chief Fincher observed the victim to be in bad shape and close to death.

Deputy Sheriff Jerry Chandler participated in the investigation of the shooting of Rodney James. Chandler testified he went to the appellant’s trailer approximately forty-five minutes after learning of the shooting. Appellant answered Deputy Chandler’s knock and came out into the yard where he was advised of his rights. At appellant’s request, he was taken to the sheriff’s office. Deputy Chandler informed him of his rights again in the presence of Officer Jerry Kelley. Appellant then made the following statement to the officers which was reduced to writing and admitted into evidence at his trial:

“I Michael David [sic] Lehr have been knowing Rodney Paul James for about three years, maybe 4 years. We had done drugs together before, just a day or so after the robbery of Regional Medical Center Pharmacy. Rodney Paul James asked me if I would hide some drugs. We agreed and I met him at the Shell Service Station on Highway 431 at the Highway 62 intersection and he gave me a plastic bag full of drugs. I carried the drugs down beside the creek and buried them. Rodney and I would get together about every day and go out there and do some of the drugs. Rodney and Ronald Wayne Ritter were the ones who did the robbery at the hospital and Waymon Knighton was the one who planned it. Rodney was arrested for the robbery and later released on bond. Someone else thought Rodney was going to testify against Waymon Knighton and on Sunday July 16,1978 at about dark a big man came to my trailer and knocked on the door. I opened the door and he said I want to talk to you and we stood outside the trailer, he said you know about (Rod) Rodney if he opens his mouth about Knighton he is dead as a Micreal [sic] anyway. And you have got a mighty nice little boy there if you want to keep him you better have a searce [sic] talk with Rod. And he walked off. I had to make a trip to Ky. so I left at 8:30 P.M., July 16,1978. I got back at 7:20 July 17, 1978. At 9:00 A.M. July 18, 1978, Rod came to my trailer, we stayed there about an hour then we left and went to the creek. We always carry the shotgun with us and we went to the hardware store in Jacksonville and got a box of shells, but before we bought the shells we went to Boozers Drug store and got some disposal needles. We went to the creek and did some drugs. We just sat on the creek bank and talked and shot the shotgun into the creek. We talked about Rod testifying against Waymon Knighton and he said he didn’t know if he would or not that his life had never been on the line before. I loaded the shotgun and was holding it in my hands and it went off and hit Rod in the back and side, it scared me so bad I didn’t know what to do and I was messed up on drugs. I talked to Rod for a minute or two and he said help me man and I helped him to the truck and let the tailgate down and put him the back of the truck. I stopped and wet a rag and put it on his face. About that time we started struggling and he was wild so I went to the front of the truck and got my shotgun and reloaded it. Rod was right on me and he was talking real loud and I told him to get back in the truck but he just kept coming toward me and grabbed a holt [sic] of me and I shot him again. Rod was laying [sic] on the ground and I sat down beside him and talked to him for a minute and he asked me to get the wet rag and I did and wiped his face off. He asked to see a picture of his little girl and I got his billfold out and showed him the picture. When Rod got quite and stopped talking I left him and went up the side of the mountain and hid the shotgun. It was broken down in three pieces. Then I went back to where Rod was, I stayed there about 15 minutes then I left and rode around for a few minutes and then I went home. I stayed around the house for awhile then I went into the bathroom and changed pants because the ones I had on had blood on them. I put those pants in the dirty close [sic] hamper. Shortly after that (about 20 minutes) the deputies came to the trailer.... ”

After making the statement, appellant took the officers to the area of the shooting near the Tallaseehatchee Creek in Calhoun County. There he showed the officers a drug stash alongside a dirt road where drugs and empty drug wrappers were found. Farther along the road appellant pointed out where the victim’s body had been lying when he left him and where the shotgun was buried in two pieces under leaves. About one-half mile farther, appellant led the officers off the road and across two fences, down to the creek bank. There they found one sixteen-gauge spent shotgun shell and two unopened and unused hypodermic needles. They also observed a great deal of blood at the scene.

Deputy Allen Reese testified to receiving a ring and a wallet during the course of the investigation. The wallet, which he received from Deputy Chandler, was one identified by Chandler as having been found in a tissue box on the dash of the truck driven by appellant the day of the shooting. Reese stated the wallet contained an Alabama driver’s license with James’ picture on it. The ring was given to him by Ms. Laura James, the victim’s wife, who identified it as belonging to Rodney James. She stated the ring was given to her after James’ death by Sheila Lehr, appellant’s wife.

Deputy Reese also testified that the drugs in the stash referred to by Deputy Chandler were hidden there by appellant for a Waymon Knighton, who had stolen the drugs from the Regional Medical Center Pharmacy. The victim and appellant were then “ripping him off,” by taking Knight-on’s stolen drugs for their own use. Reese also identified pictures of the victim, showing the nature and location of the shotgun wounds, which he had taken during the investigation.

Laura James testified to having seen her husband, dead, at the funeral home on Wednesday after he was killed on Tuesday. On cross-examination, she stated her husband did have several knives and carried one sometimes. She had been separated from her husband for about three weeks at the time of his death. She had never seen her husband take drugs, but did know of his close friendship with appellant, and identified pictures of Lehr and James fishing together.

Joseph Embry, a pathologist for the State, conducted a post-mortem examination of Rodney James on July 19,1978. He discovered two shotgun wounds, one in the right arm and right chest, and the other in the right lower back. There were also bruises and deep lacerations on the victim’s forehead. The cause of death was a gunshot wound to the chest with pellets in the heart, which compressed the heart by causing the sack around the heart to fill with blood. A piece of leather, which appeared to be belt leather, was found in the right chest. Test records indicated no detectable amount of any drug was present in the victim’s system.

Chip Walls, a toxicologist for the Alabama Department of Forensic Sciences, testified he examined the victim’s blood, urine, and bile for evidence of drugs in the victim’s body. No drugs, “PCP” or otherwise, were shown by the test to be present in the body.

Lawden Yates, a firearms examiner for the State, testified concerning a shot cup, wadding, pellets, and one six-gauge shotgun he received in connection with the Rodney James case. He testified the pellets la-belled as having been removed from the victim were consistent with wadding material that is common with sixteen-gauge shotgun shells. He also performed tests on the victim’s shirt and found no gun powder residue.

At the end of Mr. Yates’ testimony, the State rested and the appellant made a motion to exclude the evidence on the grounds that the State had failed to prove a prima facie case of murder in the first degree. The motion was denied and the appellant called a number of character witnesses.

Chi Chi Leffel, a former neighbor of the victim, testified to the victim’s untruthful and violent reputation. Sheila Lehr, the appellant’s wife, testified the victim was violent, quick-tempered, and often carried knives. She stated that Rodney James appeared to be on “dope” the morning of the shooting and had smoked marijuana in her presence that morning. She testified also that appellant and James, close friends, had taken four or five syringes with them in the morning of the shooting. She also confirmed that appellant had said James had “O.D.d” when he returned from the creek without James.

Donald Lehr, appellant’s brother, testified to Rodney James’ bad reputation for truth and veracity and violence. Robert Warnock, Sr., and Inez Leffel, neighbors of the victim, testified to James’ untruthful and non-peaceful reputation. Steven Bab-cock, who went to school with James, testified to his bad reputation for violence.

Dr. Marshall Stout, a physician practicing emergency medicine, was called by the defense to testify concerning the nature and effect of the drug, “PCP” or Phencyclidine. He testified about its anesthetic qualities, as well as to the extremely unpredictable, erratic, and violent behavior it can cause in persons using the drug. He stated it is an easily made drug and is widely abused by street pushers and drug users. He also stated the drug is very hard to detect in the human body and can cause profound effects, even when the amount of the drug in the body is undetectable to the most sensitive tests. He said that “PCP” can cause delayed behavioral manifestations some hours to months after its use, resulting in accidents or violent antisocial acts. He testified that “PCP” is more readily detected in the gastric juices, but may be apparent in the bile, blood, or urine.

Michael Dennis Lehr took the stand to testify in his own defense. He stated that Rodney James was very quick-tempered and frequently carried a knife. He also testified to the victim’s violent nature and gave examples of the victim’s past violent acts against the victim’s wife and others. The appellant admitted the sixteen-gauge shotgun was his. He testified that Way-mon Knighton was involved in the hospital pharmacy robbery, and that Rodney James was also connected and pending trial for the robbery at the time he died. He stated he showed Knighton where to hide the stolen drugs, and that he and Rodney James later removed them to the location he showed the investigators. Knighton did not threaten him or his family in relation to the drugs or Rodney James, according to appellant’s .testimony. He also testified he and Rodney James took a sixteen-gauge shotgun, a box of shells, and four or five syringes to the creek the day of the shooting and that they both smoked marijuana and injected “PCP.” His version of the infliction of the wounds appear in the record as follows:

“Q. Did the gun go off and hit Rodney?
“A. Yes.
“Q. Explain to the jury how that occurred.
“A. I was breaching the gun to load another shell in it. The hammer was back and I put a shell in it and when I snapped the gun closed my finger pulled the trigger and hit Rod in the back side. It went to the front and hit him on the arm.
“Q. And where was he in relationship to you at that time?
“A. On my left. He started to get up and turn to get a coke out of the truck. When the gun went off and hit him he fell face first on the ground. He rolled over and I threw the gun down. I went over and I was scared and didn’t know what to do.
“Q. Did he say anything then?
“A. Yes. The first thing he just laid there for a little bit. He didn’t holler or scream or anything. He asked me if I would give him something to drink so I ran up to the truck and got a coke and there was a pillow case in the truck and I brought it back and wet the pillow case in the creek. While Rod was drinking his coke I put the pillow case on his face. He had all turned white and had a cut on his head and blood was on his face. He asked me if I would look and see how bad it was and then I looked.
“Q. What did you do then, Dennis?
“A. Rod, was trying to take his belt off so I pulled it off and wrapped it around the arm that the buckshot had torn up.
“Q. Then what happened?
“A. I went up and got the pickup truck and backed it down to the edge fence and went back down and got Rod and got him up and I helped him up to the pickup truck and laid him down in the back where he could lay down and we started out.
“Q. Anything happen on the way out?
“A. When we got up to the top of the hill where they have the road split where the little turn goes around there all of the time I was driving I had to turn and watch Rod and watch the road. When I got up the hill I turned into the place about as far as that number four (indicating) and the other end I thought that you could just shoot around it and shoot right back in it. I wanted to stop because it was level ground back there.
“Q. What happened then?
“A. As soon as I got the truck stopped Rod had done got out of the back of it and was hollering and screaming and he wasn’t saying any particular thing. I couldn’t make any sense out of it. I got out of the truck and I told him to stop hollering that it was just hurting him that much more. I told him to get back in the truck and I would carry him to the hospital.
“Q. Where were you trying to take him at the time?
“A. To the hospital.
“Q. How long after you had taken PCP did this occur?
“A. I would say twenty or thirty minutes.
“Q. After he got out of the truck and you were trying to convince him to get back in the truck what occurred?
“A. He started to come at me and I couldn’t figure out why and I told him to get away from me and get back inside the truck. I said, ‘I’m scared, Rod, and I don’t know what I’m doing. Just get back in the truck and stay away from me.’ I didn’t want him close to me because he wasn’t making sense and he didn’t look like himself.
“Q. Were you afraid at that point?
“A. Yes, sir.
“Q. Was he coming at you?
“A. Yes, sir.
“Q. What did you do at that point?
“A. I just kept backing up and then I went around and got the gun out of the truck. I don’t know why.
“Q. What happened then?
“A. I come back around and I told Rod to get back in the truck and I would carry him to the hospital. He still wouldn’t listen and he come at me and he grabbed me and I had the shotgun in one hand laying straight against the ground. The barrel was laying straight against the ground. I tried to get loose and when I did get loose—
“Q. Then what happened?
“A. I raised the gun and fired at Rod’s arm across here. (INDICATING)”

He stated he then hid the shotgun, believing James was dead. He admitted telling Sherry Roberts and his wife, Sheila, that James died of an overdose. The defense rested, and there was no rebuttal by the State.

I.

Under the evidence presented at trial, we are persuaded that a question was presented for the jury as to whether appellant intentionally shot the deceased and as to whether the shooting was in self defense. Carter v. State, 53 Ala.App. 248, 298 So.2d 668 (1974); Barnes v. State, Ala.Cr.App., 361 So.2d 390, cert. den. 361 So.2d 396 (1978). There was no evidence presented to show that the victim was armed. It is apparent the jury could have found that appellant was not in imminent peril and could have retreated from the victim in safety. This is especially evidenced by appellant’s own admission that he stopped to reload the shotgun before inflicting the second wound. The appellant’s use of the shotgun, on two occasions, at two locations, presented evidence from which the jury could infer the appellant acted with malice. Harris v. State, 48 Ala.App. 723, 267 So.2d 512 (1972).

Additionally, there was testimony that the victim had been shot “on purpose.” The fact that appellant testified the first shot was accidental, and that the second shot was in self defense, presents a question for the jury. Carter, supra; Sashington v. State, 56 Ala.App. 698, 325 So.2d 205 (1975), cert. den. 295 Ala. 416, 325 So.2d 211 (1976). Even though the appellant’s testimony in regard to self defense was uncontradicted, it was for the jury to determine appellant’s credibility and accept or reject his testimony. Bufford v. State, Ala.Cr.App., 382 So.2d 1162, cert. den. Ala., 382 So.2d 1175 (1980); Washington v. State, Ala.Cr.App., 339 So.2d 611, cert. den. Ala., 339 So.2d 616 (1976); Cooley v. State, 233 Ala. 407, 171 So. 725 (1937).

Finally, there was evidence, in the appellant’s own statement, which indicates his family was threatened in regard to Rodney James’ knowledge of a robbery. The jury could have inferred appellant shot James to prevent him from testifying, in response to the threat upon his family’s safety.

The scope of appellate review is limited to a determination of whether there was substantial evidence presented to support all the elements of the crime charged. West v. State, 57 Ala.App. 596, 329 So.2d 653, cert. den. 295 Ala. 427, 329 So.2d 658 (1976). In the instant case the evidence was sufficient to sustain the ruling of the court and verdict of the jury.

II.

Appellant contends the trial court erred in admitting into evidence hearsay statements of the victim, under the theory that they were “dying declarations.” We note first that defense counsel tacitly recognized certain statements as dying declarations and indicated to the trial judge during the hearing on the motion to limit the evidence that he did not object to their admission. The record reflects the following:

“MR. BOLT: I think it’s important to get straight what I’m trying to accomplish here. It’s not something improper or to keep the jury from hearing any proper evidence. It’s to establish what is determined proper evidence before the evidence has unfortunately been heard by the jury and then determined improper. The statements that are made by Rodney James to anybody I’m going on the assumption that it’s the District Attorney’s intention to try to offer to the jury the statements of Rodney James. If that’s an incorrect assumption then we can stop here with an instruction that nobody repeat the statements. If it’s a correct assumption that he’s going to ask the witnesses to testify about what Mr. James had to say then I’m asking the Court to determine that admissibility of those statements before the statements are spoken in front of the jury. I’m sure the Court would admonish the jury to disregard it if it were improper. We all know that the human mind is only so strong. I don’t think you can be capable of disregarding a man’s dying declaration if you once heard it. That’s why I’m asking for this means to determine if it’s admissible in the first place. As I said if he’s not going to put anything into evidence about what Mr. James said other than the fact that Mr. Lehr shot him- — if that’s the only statement of Mr. James that he intends to offer that ‘Dennis Lehr shot me’ period.
“MR. FIELD: ‘Who shot you? Dennis Lehr’ is all he said.
“MR. BOLT: And in no statements from any witness purporting to quote Mr. James about how it occurred. Why it occurred or if it was an accident or any of that then I don’t have quarrels with that.”

However, on appeal counsel argues that none of the statements made by the victim were dying declarations. He submits a proper predicate was not established by the State, and that certain of the victim’s statements were inadmissible as opinions, rather than as statements of fact.

The first statement appears in the record as follows:

“Q. At that time can you tell the Ladies and Gentlemen of the jury what his physical appearance was? How did he appear to be hurt?
“A. He had bled real bad and was still bleeding some. He was rather white and rather weak I would say.
“Q. Could you tell how many times he had been shot just by looking at him?
“A. I would say two at least and he had a gash on his head that I thought could have been a shot.
“MR. BOLT: Object. Move to strike. That’s not responsive.
“THE COURT: Sustained.
“Q. (By Mr. Field) Did the individual at any time make any statement to you as to who shot him?
“A. Yes, sir.
“Q. Who did he tell you shot him?
“A. Dennis Lehr.
“Q. When you got him to Fuller’s did you stay there until somebody else came or did you leave?
“A. I stayed until Joe Fincher got there and took charge and was working with him and then the rescue squad came and picked him up and I asked Joe’s permission to leave and I left.”

This statement came in without objection from defense counsel, as he had indicated in the limitation hearing. However, during the testimony of a later witness, the following statement appears:

“Q. Can you describe the physical condition of that individual when you first saw him out there?
“A. He was sitting in a chair and semiconscious. He had two shots in him and in the arm.
“Q. Did you perform — you have some training in medical aid or what do you call it?
“A. I’m a licensed EMT.
“Q. What’s an EMT, medical technician? “A. Yes.
“Q. Did you perform any assistance to this individual at this time?
“Q. Yes, sir. First thing I did was established an airway so he was breathing good. I then checked the bleeding and he was bleeding pretty bad. We stopped that with four by four bandages. I took a blood pressure.
“Q. All right. What was the blood pressure, do you remember?
“A. Around one fifty over eighty-five, I think.
“Q. And during the course of the time you were examining the individual did you ask him any questions about who shot him?
“A. Yes, I did. I first asked him if he had been drinking and he told—
“MR. BOLT: Object. The witness is being unresponsive.
“Q. During the time you were asking him questions did you at any time ask who shot him?
“A. Yes.
“Q. What, if anything, did he tell you? “A. He said Lehr.
“Q. All right. Did you later assist in getting this individual into an ambulance?
“A. Yes, sir.
“Q. And I believe he was carried to Regional Medical Center.
“Q. Yes, sir.”
“Q. (BY MR. FIELD) Mr. Fincher, did you ask Mr. James anything else regarding the circumstances of this shooting?
“A. Yes, sir.
“Q. Do you remember what it was that you asked him?
“A. I asked him if he was shot accidentally or on purpose.
“Q. Do you remember what his reply was?
“A. On purpose.”

It is the portion of the witness’s testimony indicating that appellant shot the victim “on purpose” that appellant argues was inadmissible. He insists that it lacked a proper predicate and that it was an opinion or conclusion of the declarant.

First, we find a proper predicate had been laid for the admission of hearsay statements of the victim as dying declarations. The evidence as to the gravity and nature of the victim’s wounds, blood pressure, loss of blood, state of consciousness, general physical condition, length of time before death occurred, and the surrounding circumstances, justify the trial court’s conclusion that the victim had a consciousness of impending death. Young v. State, Ala. Cr.App., 363 So.2d 1007 (1978).

The circumstances of each individual case must be the guide in determining the existence of the victim’s realization of his situation. The trial judge is in the best position to make such a determination and it is poor policy to disturb the ruling of the trial judge upon the interpretation of those circumstances. Marshall v. State, 219 Ala. 83, 121 So. 72 (1929). The trial judge held a thorough hearing on the matter outside the presence of the jury, at defense counsel’s insistence, and heard sufficient evidence to determine that the victim was in extremis at the time the statements were made. Young, supra.

Additionally, we find that appellant waived any objection to the lack of a proper predicate indicating the victim’s consciousness of impending death not only by failing to object to the admission of the first statement, but also stating in the limitation hearing that he had no objection to the introduction of such testimony.

The proper predicate having been laid, we are left with the question whether the statement by the victim that he was shot “on purpose” was objectionable as an opinion or conclusion of the declarant. We find the statement was properly admitted as a rendition of a collective fact by the declarant. Marshall, supra. That is to say, the phrase “on purpose” represents a collection of the facts as seen, heard, and known by the victim at the time he was shot. One in the extreme situation of the victim herein is not in the physical or mental condition to detail verbally the events leading to his predicament. Such a concise, limited verbalization of witnessed facts is to be expected, and respected from one in the victim’s extreme condition. This short phrase was the victim’s means of communicating quickly all that he observed surrounding the shooting. It was not a surmise, guess, or hypothesis by the victim as to what occurred. Rather, it was a necessarily succinct statement of facts by one with obviously little time and physical ability to relate what he had observed. The statement was properly admitted as a statement of witnessed facts contained within a dying declaration.

III.

On motion for new trial, appellant questioned for the first time the manner in which the master jury list for the trial jury venire was compiled. He asserts the jury commission failed to follow the statutory directions for the compilation of the master jury list and that such failure amounted to legal fraud.

Having raised this issue for the first time on motion for new trial, appellant has waived his right to object, unless he can show fraud or some irregularity which was not known, or by the exercise of due diligence, could not have been known before trial. Williams v. State, Ala., 342 So.2d 1328 (1977); Griffin v. State, Ala.Cr.App., 356 So.2d 723, cert. den. Ala., 356 So.2d 728 (1978).

Appellant and his attorney submitted affidavits stating that they were unaware of any problem with the master jury list until after the completion of the trial. Appellant presented substantial testimony on his motion for new trial from past and present jury commissioners, as well as introducing thousands of jury questionnaires into evidence. The trial judge thoroughly and painstakingly reviewed both the testimony and documents submitted on the motion and found no evidence of fraud.

The trial court found that there was no reason appellant, with the exercise of due diligence, could not have learned of any alleged irregularity prior to trial.

Under the facts presented, we hold that appellant has waived his right to object to the compilation of the master jury list. The initial burden of showing fraud in the compilation of the jury list rests with the appellant. There is a presumption that no legal fraud exists. Oyarzun v. Pittman, Ala.Cr.App., 367 So.2d 574 (1979).

Legal fraud requires that acts and omissions involving a breach of a legal duty injurious to others must be proved. Kittle v. State, Ala., 362 So.2d 1271 (1978). Additionally, the statutes concerning procedure for jury selection are not mandatory, and require only substantial compliance. Kittle, supra, Code of Alabama 1975, § 12-16-90. Even though there may have existed some irregularity by the jury commission in compiling the master jury list, we can find no evidence which proves legal fraud in the jury commission’s actions. Smith v. State, 54 Ala.App. 561, 310 So.2d 484 (1975).

Further, the testimony and affidavits show beyond doubt that appellant could have found out, with due diligence, how the jury list was compiled prior to trial. Hence, in the absence of a showing of fraud, appellant has waived his right to object. See Brown v. Billy Marlar Chevrolet, Inc., Ala., 381 So.2d 191 (1980).

IV.

Prior to the commencement of voir dire proceedings to empanel the jury, the victim’s wife, Laura James, was seated with the district attorney at his counsel table. Appellant’s counsel objected to the widow’s presence on the grounds that it would inflame and prejudice the jury. The trial court overruled appellant’s motion to remove her from the counsel table. Appellant also raised this issue in his motion for new trial.

The courts of this State have permitted relatives of the deceased to occupy seats in the courtroom during trial in close proximity to and in full view of the jury, against objection by defense counsel. Such a matter is purely within the sound discretion of the trial judge, and will not be disturbed on appeal in the absence of abuse of the trial court’s discretion. Pollard v. State, 12 Ala.App. 82, 68 So. 494, reversed on other grounds, 193 Ala. 32, 69 So. 425 (1915).

It is not generally held to be an abuse of the trial judge’s discretion to deny a new trial when the victim’s immediate family have sat within the bar of the court, within view of the jury, and when they wept, sobbed aloud, or even fainted. Howard v. State, 273 Ala. 544, 142 So.2d 685 (1961). Certainly persons so related, just as other spectators at a public trial, may remain as long as they display no prejudicial conduct or behavior. Hall v. State, Ala.Cr. App., 377 So.2d 1123, cert. den. Ala., 377 So.2d 1123 (1979); McGuff v. State, 49 Ala. App. 88, 268 So.2d 868, cert. den. 289 Ala. 746, 268 So.2d 877 (1972); Kendrick v. State, 55 Ala.App. 683, 318 So.2d 378 (1975); Brodka v. State, 53 Ala.App. 125, 298 So.2d 55 (1974). Under the circumstances presented in the trial record for our review, we are of the opinion that the trial court did not abuse its discretion. The statements in this matter following Pollard, supra, reflect our thoughts and decision on this issue:

“The court is charged with a high and important duty not without its difficulties in taking proper care to effect the object of, according to the accused, a fair and impartial trial while having due regard to interests of the state. No legal reason except that addressed to the court’s discretion was assigned why the widow and children should have been excluded or removed to a different part of the courtroom, and we know of no rule of law that would authorize a court to exclude spectators or other persons from the courtroom, or remove them from the view of the jury, during the progress of a public trial of this nature, except for misconduct or some cause that appealed to the sound discretion of the court in administering substantial justice; and it is only an abuse of that discretion that this court can review. The record does not, to our mind, present such an abuse of discretion as would justify a court of review in reversing the judgment on account of the court’s refusal to grant the defendant’s request in this case.” 12 Ala.App. at 90, 68 So. at 497.

V.

Appellant contends that the trial court erred in refusing to give 46 of his 47 requested written charges. We note first that the trial judge gave a lengthy and comprehensive oral charge which substantially and fairly covered the same rules of law contained in the requested charges. Code of Alabama 1975, § 12-16-13; Lambeth v. State, Ala., 380 So.2d 923 (1979); Dillard v. State, Ala., 371 So.2d 947 (1979).

Additionally, many of the refused charges were either ungrammatical, not properly predicated or hypothesized on the evidence in the case, or contained other defects which negated any potential error in their refusal. Barnes v. State, Ala.Cr. App., 361 So.2d 390, cert. den. Ala., 361 So.2d 396 (1978); Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. den. 291 Ala. 776, 280 So.2d 797 (1973); Thomas v. State, 124 Ala. 48, 27 So. 315 (1899). We find no error in the trial judge’s refusal to give the appellant’s written charges.

We have reviewed the entire record and find no error prejudicial to the substantial rights of the appellant. Therefore, the judgment of conviction by the Calhoun Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM. ALDERMAN, Justice,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Robert J. PINCKET, Respondent.
    No. 58272.
    Supreme Court of Florida.
    March 26, 1981.
    Rehearing Denied June 18, 1981.
    Harris K. Solomon, Branch Staff Counsel, and Lance J. Thibideau, Asst. Staff Counsel, Fort Lauderdale, and James P. Holla-way, Deputy Staff Counsel, Tallahassee, for complainant.
    Ledford A. Parnell, Jr., Fort Lauderdale, for respondent.
   PER CURIAM.

This is a disciplinary proceeding in which The Florida Bar has petitioned this Court for approval of an unconditional guilty plea and the Board of Governors has recommended that the discipline should be the disbarment of respondent, Robert J. Pinck-et.

The respondent reserved the right in the guilty plea to seek review of the discipline recommended by the Board of Governors. The unconditional guilty plea accepted by the Board of Governors states, in part:

1. The undersigned Respondent has been a member of The Florida Bar since 1971.
2. In late February, 1978, the Respondent was attorney in a real estate transaction for Marian Feingold and her husband, as sellers.
3. Respondent received approximately $37,500.00 in escrow money for the sellers, but was unable to promptly account for and deliver the full amount to the sellers upon demand on Respondent’s trust account.
4. Respondent voluntarily paid the sellers $24,000.00 and later voluntarily made restitution in full of the nearly $14,000.00 balance which included interest. The restitution was by a check endorsed by Respondent’s wife and drawn on funds of relatives.
5. Although Respondent has made full restitution on this transaction, Respondent was aware that his conduct violated D.R.' 9-102 and Integration Rule 11.02(4) of The Florida Bar.
6. Respondent was further aware that other funds for which demand was made on Respondent’s trust account were not available and that a continuing violation exists of the aforementioned rules.
7. Therefore, Respondent voluntarily reported the additional violation to the office of the Staff Counsel of The Florida Bar with the intent to try to prevent any further harm to the public, the courts, or to the Bar.
8. Respondent, therefore, acknowledges that approximately $21,000.00, entrusted to Respondent as attorney for the personal representative in Probate Case No. 76-1836 in the Seventeenth Judicial Circuit Court in and for Broward County, Florida, is presently not available to the Court or the beneficiaries of the estate.
9. Because Respondent is desirous of making full restitution and of continuing the practice of law, Respondent considers it in his own best interest to cooperate fully in accepting a prompt and stern discipline from The Florida Bar.
10. Respondent therefore pleads guilty to two violations of D.R. 9-102 and Integration Rule 11.02(4), without admitting any criminal guilt whatsoever.

The plea of guilty to these serious offenses speaks for itself. Respondent has cooperated fully with The Florida Bar by voluntarily advising the Bar of deficiencies in his trust account; stipulating to a temporary suspension effective January 25, 1980; entering an unconditional plea of guilty, thereby waiving both grievance and referee proceedings; and submitting his conduct to The Florida Bar’s Board of Governors for appropriate discipline. Further, as reflected by the guilty plea, restitution to one client was made by respondent, although he did not restore the converted trust funds for an estate which were eventually paid by the Clients’ Security Fund of The Florida Bar.

Clearly, the respondent violated Disciplinary Rule 9-102 of the Code of Professional Responsibility and Florida Bar Integration Rule, article XI, rule 11.02(4).

The only issue before this Court is whether the discipline recommended by the Board of Governors is too severe under the circumstances of respondent’s cooperation. Bar counsel asserts that in considering the appropriate discipline, we should not take into consideration respondent’s cooperation and guilty plea, which should be relevant only to a petition for reinstatement. This position is contrary to the philosophy and practice of discretionary penalties in professional disciplinary processes as well as in the criminal process. It is only when a penalty is expressly mandated for particular conduct that a guilty plea, cooperation, or restitution may not be taken into account in determining the appropriate punishment.

We find that under the circumstances of respondent’s cooperation, a two-year suspension is the appropriate punishment. The suspension will commence as of the date of the temporary suspension and require proof of rehabilitation with full restitution. This punishment is similar to that imposed recently in The Florida Bar v. Barksdale, 394 So.2d 114 (Fla.1981).

We again reiterate that the misuse of clients’ funds is one of the most serious offenses a lawyer can commit, and we will not be reluctant to disbar an attorney for this type of offense even where there is restitution. The Florida Bar v. Breed, 378 So.2d 783 (Fla.1979). We emphasize that we are not in any way retreating from our statement in Breed, but we believe that it is appropriate in determining the discipline to be imposed to take into consideration circumstances surrounding the incident, including cooperation and restitution.

It is the judgment of this Court that respondent, Robert J. Pincket, be suspended from the practice of law for a term of two years, which shall commence as of January 25, 1980, and that he may be readmitted only upon proper proof of his rehabilitation and full restitution to the Clients’ Security Fund of The Florida Bar of all funds expended because of his actions, plus interest thereon from the date of conversion at the rate of ten percent per annum.

It is so ordered.

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

ALDERMAN, J., dissents with an op;n-ion.

ALDERMAN, Justice,

dissenting.

I agree with The Florida Bar that the appropriate sanction for this serious misconduct is disbarment. Pincket, by his plea of guilty, admits that he converted $37,500 held in trust by him for his clients in a real estate transaction. He also admits that he converted an additional $21,000 entrusted to him as attorney for the personal representative of an estate. He repaid the money owed to his clients in the real estate transaction, but he has never repaid the money taken by him from the estate. Although, in his plea, Pincket says that he is not admitting any criminal guilt, I believe his admitted conduct can be properly characterized as theft.


author: ADKINS, Justice. SUNDBERG, Chief Justice,

text:
    STATE of Florida, Appellant, v. Franco FERRARI and Charles Tarantino, Appellees.
    No. 58603.
    Supreme Court of Florida.
    April 2, 1981.
    Rehearing Denied June 19, 1981.

      Jim Smith, Atty. Gen., and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellant.
    Robert J. Buonauro, Orlando, and James Weart, Sanford, for Franco Ferrari and Charles Tarantino, appellees.
   ADKINS, Justice.

This case comes to the Court on direct appeal from the Circuit Court of the Ninth Judicial Circuit in and for Orange County. We have jurisdiction since the court below held section 713.34(3), Florida Statutes (1979), unconstitutional. Art. V, § 3(b)(1), Fla.Const.

On March 29, 1978, F & C Builders, a partnership formed by appellees, contracted with Dr. R. W. Geldner to make improvements to his residence at a cost of $38,280. An advance payment of $14,000 was made when the contract was signed. Thereafter appellee Tarantino was arrested on a fugitive warrant issued by the State of Tennessee charging misapplication of contract funds. Tarantino at that point requested that appellee Ferrari agree to advance him $10,000 from F & C Builders to settle the Tennessee claims and avoid prosecution in that state. Ferrari agreed.

Appellees received a second draw on Dr. Geldner’s construction contract on May 15, 1978. The next day Geldner’s check for $11,982 was deposited in F & C’s bank account, bringing the balance of that account to $12,446.92. On the same day, $10,000 was withdrawn from the F & C account for disbursement in settlement of the Tennessee claims.

F & C Builders was incorporated on July 6,1978. Subsequently Ferrari attempted to withdraw from the corporation and took a truck, a trailer, and a riding lawn mower in consideration of his capital investment. Appellees never completed the work on Geldner’s home, and materialmen and subcontractors went unpaid.

On July 21, 1979, appellees were charged by information with second-degree grand theft in violation of sections 812.014 and 713.34(3), Florida Statutes (1979). Appel-lees moved to dismiss, alleging that section 713.34(3) was unconstitutionally void for vagueness and that the presumption of pri-ma facie evidence of intent to defraud, which the statute permits to be drawn from misdirection of contract advances, violated appellees’ Sixth Amendment rights to a fair and impartial trial.

The trial court granted the motion to dismiss, holding that section 713.34(3) was impermissibly vague, overbroad and indefinite, and violative of the due process and equal protection clauses of the United States and Florida Constitutions. It was further held that the presumption of prima facie evidence of intent to defraud was irrational and arbitrary and therefore unconstitutional. This appeal followed.

The issue to be decided is whether the court below erred in holding section 713.34(3) unconstitutional. Section 713.-34(3), Florida Statutes (1979), provides:

Any person, firm, corporation or agent, officer or employee thereof who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property, for any other purpose than to pay for labor or services performed on or materials furnished for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of embezzlement and shall be prosecuted and, upon conviction, punished in accordance with the provisions of the laws of this state; provided, however, that failure to pay for such labor, services or materials furnished for this specific improvement after receipt of such proceeds shall constitute prima facie evidence of intent to defraud.

The aim of the statute is to attach criminal liability for embezzlement to the actions of a contractor who misappropriates construction funds. There are three elements of the offense of embezzlement as described by section 713.34(3). First, there must be a misdirection of funds which have been entrusted to the holder for the purpose of improving real property. Second, the misdirection of funds must take place while a bill for labor, materials or services incurred in improving the property is due (or may become due) but remains unpaid. Third, the misdirection of funds must be undertaken with the intent to defraud. There is a statutory presumption of prima facie evidence of intent to defraud if bills from suppliers or subcontractors are not paid.

First we must address the trial court’s holding that the presumption employed by the statute is invalid. It is well settled that only permissive presumptions may be utilized in criminal cases. That is, presumptions “which [allow] the jury to find the presumed fact once the basic fact is proven but [do] not require such a finding by the jury.” Fitzgerald v. State, 339 So.2d 209, 211 (Fla.1976) (emphasis added). The plain language of section 713.34(3) indicates that its presumption does not bind the jury to find that the presumed fact necessarily follows the proven fact, therefore the presumption is permissive in nature. In fact, the presumption in the instant case is strikingly similar to the presumption of prima facie evidence of intent under section 814.-06, Florida Statutes (1973), which we upheld in Fitzgerald.

This Court has recognized two other constitutional restrictions upon presumptions:

Criminal acts declaring one fact prima facie evidence or presumption of another are frequent. Their purpose is not to relieve the State of the burden of proof, but to allow the establishment of a prima facie case. Constitutional guarantees are not violated as long as there is a rational connection between the fact proven and the ultimate fact presumed and reasonable opportunity is afforded to rebut the presumption.

State v. Kahler, 232 So.2d 166, 168 (Fla. 1970) (citations omitted).

The presumption in section 713.34(3) clearly affords a reasonable opportunity for rebuttal. Since the presumption is one of prima facie evidence only, the state is not totally relieved of the burden of proof. Any time after this prima facie evidence of intent is established the defendant may come forward with evidence to negate criminal intent, thereby destroying the presumption and shifting the burden back to the state to prove intent beyond a reasonable doubt. See, e. g., Mann v. State, 209 So.2d 472 (Fla. 1st DCA 1968).

There is a rational relationship between the proven fact that material and labor costs remain unpaid after an advance of contract funds, and the presumed fact that the contractor intends to defraud. Those contractors who intend to defraud their clients must to some degree incur material and labor debts in order to keep up a minimal level of activity on the job and extract subsequent contract draws. Clearly, such an embezzlement scheme would be fruitless if the contractor in fact paid all costs incurred on the job out of the funds received. Considering these factors, the legislature could have determined that the failure to pay suppliers and materialmen constitutes sufficient indication of intent to defraud that it should be prima facie evidence of such intent. It follows that the requisite relationship between the proven and presumed facts exists here. Accordingly, we conclude that the presumption of section 713.34(3) passes constitutional muster.

The trial court also found section 713.-34(3) to be vague and overbroad. These are two substantially different defects.

A vague statute is one which is constitutionally infirm because its language is so unclear or ambiguous that persons of reasonable intelligence must guess at what conduct is proscribed. Our reading of section 713.34(3) reveals no unclear language. The appellees assert that problems exist with regard to determining when a material bill is owing. They direct our attention to language in the Mann decision, supra, stating that the statute is vague and indefinite in that respect.

We will not determine the constitutionality of the Statute in question because it was not properly raised in the lower court, but we can, and we think properly so, say and determine that said statute is so vague and indefinite as to times, such as “when is a material bill owing,” that it becomes completely impractical, if not impossible for a building contractor to contract for work on more than one house at a time and pay for anything without being in violation of said act.

209 So.2d at 474. (The statute considered by the Mann court was section 84.341(3), which has been superseded by a practically identical section 713.34(3).) By the court’s admission this reasoning was not necessary to the decision and therefore was dicta. We believe a deeper inquiry into the constitutionality of the statute would have lead to a different conclusion. Granted, the statute does not precisely define when a bill becomes due and owing, but no such definition is necessary. The statute is to be read in pari materia with Florida’s version of the Uniform Commercial Code, more precisely chapter 672, Florida Statutes, concerning Sales, and Florida contract law. Such a reading allows consideration of variable factors such as prior dealings between the contractor and the creditor and usage of trade, simultaneously solving any vagueness problems.

A statute is overbroad if it is so all-encompassing in its reach that it ensnares both protected and non-protected conduct. Appellees argue that section 713.-34(3) is overbroad since it is impossible for an honest contractor to operate without violating the statute because the cash flow realities of the construction business frequently mandate that a contractor engaged in numerous projects use funds advanced for one job to pay subcontractors or suppliers on another. They assert that it is common practice for a contractor to use incoming funds to discharge his most pressing obligations and replace them later with the proceeds of other jobs. Whether this practice violates section 713.34(3) depends on the intent of the contractor. Considering the elements of embezzlement discussed above, it is apparent that a contractor may inadvertently misdirect funds without an intent to defraud. In that situation, the statutory presumption of intent to defraud may be rebutted by evidence showing that, even though the contractor misdirected funds while a bill for labor, materials, or services incurred in improving the property is due (or may become due) but remains unpaid, the misdirection was without intent to defraud. It is then for the jury to determine whether the contractor has successfully rebutted the State’s prima facie case. We reject appellees’ contention that it is not possible for an honest contractor to operate without violating section 713.34(3), and we hold that this statute is not over-broad.

In summary, we hold that section 713.-34(3), Florida Statutes, is not unconstitutionally overbroad or vague. The presumption of prima facie evidence of intent within the statute is also constitutional. All other bases on which the trial court anchored its holding have been considered and are without merit. Therefore, the order of dismissal holding section 713.34(3) unconstitutional is hereby reversed, and the case is remanded for trial.

It is so ordered.

BOYD, OVERTON and ALDERMAN, JJ., concur.

SUNDBERG, C. J., dissents with an opinion with which ENGLAND and MCDONALD, JJ., concur.

SUNDBERG, Chief Justice,

dissenting.

Although the precedents setting the appropriate standard for testing criminal presumptions are unclear in Florida, I submit that the presumption utilized in section 713.34(3), Florida Statutes (1979), meets neither of the tests heretofore articulated.

The United States Supreme Court in setting standards for statutory presumptions began with a rational connection test in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), proceeded to a “more likely than not” test in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and culminated in an ambiguous combination of “more likely than not” with “beyond a reasonable doubt” standard in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Florida has examined the issue in MacMillan v. State, 358 So.2d 547 (Fla. 1978), and Fitzgerald v. State, 339 So.2d 209 (Fla. 1976). MacMillan applied the “more likely than not” test, though it equated it to the rational connection standard. That case did not need to reach the reasonable doubt standard since the statute did not meet the lower “more likely than not” standard. Fitzgerald apparently applied a reasonable doubt standard, interpreting Barnes to require satisfaction of this highest standard.

It is clear to me that in the course of human experience it is neither “more likely than not” nor “beyond a reasonable doubt” that a contractor intends to defraud simply because material and labor costs remain unpaid after an advance of contract funds by the owner. As a matter of judicial knowledge, it is common practice in the construction industry to treat contract receipts as fungible for purposes of defraying labor and material costs in subdivision developments. In our inflationary economy with material costs escalating daily, it has been almost essential to buy building materials in advance, in bulk amounts for use on multiple house “starts.” To do otherwise would result in a further increase in residential housing prices, which already strain the imagination. No contractor has felt obligated to match up invoices against revenues for each job contracted — on a trust accounting, “collect-on-delivery” basis— anymore than the local haberdasher has felt bound to apply a customer’s layaway payment against the invoice for the particular three piece suit selected.

Because an impermissible presumption is employed by section 713.34(3), I would affirm the trial judge, and for the same reason I dissent from the majority opinion.

ENGLAND and McDONALD, JJ., concur.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR. Re Herbert M. BROWN.
    No. 58656.
    Supreme Court of Florida.
    April 9, 1981.
    Rehearing Denied June 18, 1981.
    Scott K. Tozian, Branch Staff Counsel, and Donald A. Smith, Asst. Staff Counsel, Tampa, for complainant.
    Hugh N. Smith of Fowler, White, Gillen, Boggs, Villareal & Banker, Clearwater, for respondent.
   PER CURIAM.

Herbert M. Brown, having previously been suspended from the practice of law by this Court, has filed a petition for reinstatement. A duly appointed referee heard testimony presented on the petition and recommended that petitioner be reinstated upon his satisfactory passage of The Florida Bar examination. This recommendation was apparently based on the referee’s concern about the legal aptitude of the petitioner after a prolonged absence from practice. In effect he felt academic rehabilitation had not been shown.

Mr. Brown filed a petition for review of the referee’s report but not within thirty days from the filing of the report as contemplated by Integration Rule 11.09(3)(a). Although the Court may, in its discretion, consider a late-filed petition upon a showing of good cause, we fail to find that good cause exists in this case. We therefore adopt the recommendations of the referee and hold that, in order for the petition for reinstatement to be granted, the petitioner must satisfactorily pass all three parts of the bar examination.

It is so ordered.

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

BOYD, J., concurring in part and dissenting in part with an opinion with which ADKINS and ENGLAND, JJ., concur.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the Court’s judgment approving the finding that reinstatement is appropriate and reinstating Herbert M. Brown to the practice of law. I believe, however, that review of the recommendation of a bar examination is appropriate. Further, I would disapprove the recommendation that petitioner be required to successfully complete the bar examination. In view of his long and distinguished career as an attorney, I do not see this proof of continued academic and professional competence as necessary.

ADKINS and ENGLAND, JJ., concur.

      . The Florida Bar v. Brown, 377 So.2d 1176 (Fla.1979).

      . Although the final decision suspending the petitioner was rendered in December, 1979, petitioner has been suspended since January, 1976.


author: ALDERMAN, Justice.

text:
    Preston Junior CRUM, Appellant, v. STATE of Florida, Appellee.
    Nos. 57487, 58467.
    Supreme Court of Florida.
    April 16, 1981.
    Rehearing Denied June 22, 1981.
    Robert Q. Williams of Cauthen, Robuck, Cyrus & Hennings, Tavares, and William H. Stone, Clermont, for appellant.
    Jim Smith, Atty. Gen. and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for appellee.
   ALDERMAN, Justice.

Preston Junior Crum and his brother, Marvin, were charged in a single indictment for first-degree murder. Preston was found guilty and sentenced to death. He now appeals his conviction and sentence, alleging that the trial court abused its discretion in denying his motion for severance. We reverse and remand for a new trial.

The public defender was originally appointed to represent the Crums but withdrew as Preston’s counsel, alleging that his office could not represent both brothers without a conflict of interest. Private counsel was then appointed to represent Preston. The public defender next filed a motion for severance on behalf of Marvin, in which Preston joined, based on incriminating statements Preston made in notes sent to Marvin while they were housed in the Lake County jail. This motion was also denied.

At the opening of the trial, after the jury was sworn but before opening statements, Preston moved for severance, alleging that his and Marvin’s defenses were so antagonistic that he would be prejudiced if the trials were not severed. He represented that he learned that very morning that Marvin would accuse him of singularly committing the murder for which the two of them were charged. The State objected to the motion as untimely and alleged that Preston, prior to trial, knew or should have known of the conflict between his and Marvin’s testimony when the public defender withdrew from his case. The State argued that Preston’s failure to raise this ground in the pretrial severance motion waived his right to severance at the trial. Preston renewed his motion several times during the trial, and each time it was denied.

Granting or denying a motion for severance is normally a discretionary matter for the trial court. Menendez v. State, 368 So.2d 1278 (Fla.1979); Johnson v. State, 355 So.2d 143, 145 (Fla. 3d DCA 1978). In reviewing discretionary rulings, the test for the appellate court is whether the trial court abused its discretion. See Menendez v. State, 368 So.2d at 1280.

Florida Rule of Criminal Procedure 3.152(b) provides that a motion for severance of defendants may be made during trial if severance appears necessary to achieve a fair determination of a defendant’s innocence or guilt. Florida Rule of Criminal Procedure 3.153 provides that the severance motion should be made before trial unless the basis on which it is made during trial was unknown to the defendant before trial. These severance rules are consistent with the minimum standards promulgated by the American Bar Association. ABA Standard for Criminal Justice 13-3.-1(b) (2d ed. 1980) suggests that severance should be granted whenever it appears likely that potential prejudice may arise at trial. The objective of fairly determining a defendant’s innocence or guilt should have priority over other relevant considerations such as expense, efficiency, and convenience.

The record in the present case does not support the State’s contention that Preston’s severance motion made at trial was untimely. The motion at trial was based on facts which were not known before trial and should have been granted.

Marvin was interviewed prior to trial by Preston’s counsel. In that interview, Marvin stated that he, his brother, and three other people, including the murder victim, were together in Preston’s car. He said that he and Preston got out of the car to visit a grave site and that the three other people left them there and drove off in Preston’s car. According to Marvin, an hour and a half later, they found the car which was then covered with blood inside, but the three other people could not be found. This statement was consistent with the one made by Preston, and Preston prepared his defense accordingly. Not until after the jury was sworn in did Preston learn that Marvin would testify that Preston murdered the victim.

By denying the motion, the trial court forced Preston to stand trial before two accusers: the State and his codefendant. This case, then, is unlike Menendez v. State because Marvin not only accused Preston of the murder, but also, during the trial, introduced evidence to prove his accusation. In Menendez, counsel for Menendez’s code-fendant, in his opening statement, announced that he would prove that Menen-dez, not the codefendant, committed the crimes for which they were charged. Men-endez’s counsel promptly moved for a mistrial and severance. Both motions were denied; however, the jury was expressly instructed to base its verdict solely on the evidence and to disregard this statement. The codefendant offered no evidence to support his accusation against Menendez but in closing arguments stated that the evidence against Menendez was overwhelming and that “the opposite is true as to the co-defendant.” 368 So.2d at 1280. Menen-dez was found guilty, and the codefendant was acquitted. We reviewed the record in that case to determine if these two statements so prejudiced Menendez that the jury might have decided differently had they not been made. We found that this was “not a case in which the conviction was based solely on circumstantial evidence or inconclusive evidence, or where there [was] any possibility of misidentification between two perpetrators,” 368 So.2d at 1281, and we concluded that the trial court’s denial of the severance motion was not an abuse of discretion.

Accordingly, having concluded that the trial court abused its discretion by denying Preston’s severance motion, we reverse and remand for a new trial.

It is so ordered.

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

ADKINS, J., dissents.

      . Marvin Crum is not a party to this direct appeal.

      . In view of our holding, we need not consider the other issues raised by the appellant.


author: MeDONALD, Justice.

text:
    Charles E. BAILEY et al., Appellants, v. PONCE de LEON PORT AUTHORITY, Appellee.
    No. 58487.
    Supreme Court of Florida.
    April 16, 1981.
    Rehearing Denied June 22, 1981.
    Henry P. Duffett and Fred S. Disselkoen, Jr. of Duffett, Seps & Akers, Ormond Beach, for appellants.
    Peter B. Heebner of van Wert, Heebner & Kennedy, Daytona Beach, for appellee.
   MeDONALD, Justice.

This appeal is from a trial court’s final judgment which ruled that chapter 69-1705, Laws of Florida, the appellee port authority’s enabling act, is constitutional. We have jurisdiction and affirm.

Chapter 63-2025, Laws of Florida, created the Ponce de Leon Inlet and Port District. Section 18 of that act authorized an annual tax levy of three mills: two mills (subject to referendum) for accumulation of funds and for payment of principal and interest on any bonds issued and one mill (not subject to referendum) to finance the administration of the district. Pursuant to the act, the voters within the district approved both the creation of the district and the issuance of up to $4,000,000.00 in bonds on May 26, 1964.

In 1965 the legislature amended and revised the district’s enabling act. Ch. 65-2363, § 1, Laws of Fla. Section 17 of the new act continued the millages authorized by chapter 63-2025 with the additional provision that the district’s total tax levy could not exceed three mills. The district operated under the 1965 act until 1969 when the legislature passed chapter 69-1705, Laws of Florida, amending and revising chapter 65-2363.

The 1969 act established a port authority to manage the district and expanded the port authority’s powers beyond those previously given to the district. Chapter 69-1705 also revised the section regarding tax levies. New section 17 maintains the three-mill cap, but separates the accumulation of funds from the two-mill bonding provision and incorporates such accumulation within the one-mill levy for administration. Unlike the two previous acts, therefore, the 1969 act does not require a referendum for the accumulation of funds.

In 1978 the appellants filed suit against the port authority, alleging that by removing the referendum requirement on accumulating funds the legislature had violated article VII, section 9(b) of the state constitution. The suit asked for a declaratory judgment, injunctive relief, and a refund of all ad valorem taxes collected by the district because the voters had never approved chapter 69-1705.

The trial court ruled that chapter 69-1705 does not violate article VII, section 9(b) and that that constitutional provision does not prohibit the legislature from altering, amending, or modifying a special district’s powers and duties. The court also found that chapter 69-1705 had not created a new special district, but had only amended and continued the old district. Finally, the court declared all taxes collected by the district duly authorized and valid and denied the relief requested by appellants. This appeal ensued.

We can find nothing in the state constitution which prohibits the legislature from rearranging the port authority’s power to tax in the instant manner. The 1964 referendum approved the three-mill levy. Article VII, section 9(a) provides that special districts may be authorized by law to levy ad valorem taxes. The only other constitutional referendum requirement for special districts pertains to the issuance of bonds, certificates of indebtedness, or tax anticipation certificates. The instant tax levy has been authorized by law, and the bonding levy is subject to referendum. We find that deleting the referendum requirement regarding the accumulation of funds was within the legislature’s power.

We are mindful that in construing constitutional provisions we must ascertain and effectuate the intent of the framers and the electors. Gallant v. Stephens, 358 So.2d 536 (Fla.1978). This Court has previously found article VII, section 9(b) to be a limit on ad valorem tax millages for county and municipal purposes. See State ex rel. Dade County v. Dickinson, 230 So.2d 130 (Fla.1969). Viewing section 9(b) as a limitation on the power to tax does not require reversal.

We disagree with appellants’ contention that the 1968 constitution mandated a referendum approving the 1969 act. Chapter 63-2025 (approved by the electors) authorized a total tax levy of three mills, and chapter 69-1705 maintained that tax levy. Article XII, sections 2 and 15 are savings clauses governing special district taxes. Both provide for the continuation of millage rates after the effective date of the 1968 constitution until restricted or withdrawn by law. If section 9(b) is a millage cap, chapter 69-1705 does not run afoul of that section because the act maintains, but does not increase, the total millage rate authorized by the 1964 referendum. Additionally, we agree with the trial court that the 1969 act did not create a new district but, rather, continued the 1963 district’s existence. We hold, therefore, that section 17 of chapter 69-1705 does not violate article VII, section 9(b) and that the accumulation of funds under the district’s one-mill tax levy does not require a referendum.

Because our holding disposes of the case, we do not address appellants’ points regarding notice to class members and severance of their class action count. Regarding notice to class members, however, see In re Rules of Civil Procedure, 391 So.2d 165, 169-70 (Fla.1980).

The final judgment is affirmed.

It is so ordered.

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

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

      . Ch. 63-2025, § 18, Laws of Fla., provides as follows:
      The District is authorized to provide for the levy annually of an ad valorem tax upon all taxable property within the District, to accumulate funds for accomplishing any of the purposes enumerated in this Act, and to pay the principal of and interest on any bonds issued by the District; provided that the issuance of such bonds or the accumulation of such funds shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in the District shall participate and that the rate thereof shall not exceed a maximum of 2 mills per annum. In addition to such levy not to exceed 2 mills per annum, the District is further authorized to provide for the levy annually of an ad valorem tax upon all taxable property within the District to finance the administration of the District; provided that the rate thereof shall not exceed a maximum of one (1) mill per annum. The millage necessary to pay these expenses shall be levied by the Board of County Commissioners of Volusia County separately from the millage necessary to pay the debt service on bonds of the District or make said accumulation.

      . Ch. 65-2363, § 17, Laws of Fla., reads as follows:
      The district is authorized to provide for the levy annually of an ad valorem tax upon all taxable property within the district, to accumulate funds for accomplishing any of the purposes enumerated in this chapter, and to pay the principal of and interest on any bonds issued by the district; provided that the issuance of such bonds or the accumulation of such funds shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in the district shall participate and that the rate thereof shall not exceed a maximum of two (2) mills per annum. In addition to such levy not to exceed two (2) mills per annum, the district is further authorized to provide for the levy annually of an ad valorem tax upon all taxable property within the district to finance the administration of the district; provided that the rate thereof shall not exceed a maximum of one (1) mill per annum. The total millage which may be levied against the nonexempt taxable property in the district as provided in section 12 hereof shall not exceed three (3) mills for the purposes aforesaid. The millage necessary to pay these expenses shall be levied by the board of county commissioners of Volusia county separately from the millage necessary to pay the debt service on bonds of the district or make said accumulation.

      .Ch. 69-1705, § 17, Laws of Fla., provides as follows:
      The authority is authorized to provide for the levy annually of an ad valorem tax upon all taxable property within the district, to accumulate funds for accomplishing any of the purposes enumerated in this Chapter, and to pay the principal of and interest on any bonds issued by the authority; provided that the issuance of such bonds shall have been approved at an election held pursuant to the Constitution of Florida and that said tax shall not exceed a maximum of two (2) mills per annum. In addition to such levy not to exceed two (2) mills per annum, the authority is further authorized to provide for the levy annually of an ad valorem tax upon all taxable property within the district to finance the administration of the authority, or for the acquisition, construction, maintenance or operation of any project authorized by this Chapter and to accumulate funds for such purposes provided that the rate thereof shall not exceed a maximum of one (1) mill per annum. The millage necessary to pay these expenses shall be levied by the Board of County Commissioners of Volusia County separately from the millage necessary to pay the debt service on bonds of the authority or make said accumulation. The total millage which may be levied against the nonexempt taxable property in the district as provided in Section 13 and Section 17 hereof shall not exceed three (3) mills for the purposes aforesaid.

      . Art. VII, § 9(b) provides that:
      Ad valorem taxes, exclusive of taxes levied for the payment of bonds and taxes levied for periods not longer than two years when authorized by vote of the electors who are the owners of freeholds therein not wholly exempt from taxation, shall not be levied in excess of the following millages upon the assessed value of real estate and tangible personal property: for all county purposes, ten mills; for all municipal purposes, ten mills; for all school purposes, ten mills; for water management purposes for the northwest portion of the state lying west of the line between ranges two and three east, 0.05 mill; for water management purposes for the remaining portions of the state, 1.0 mill; and for all other special districts a millage authorized by law approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation. A county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes.

      . Art. VII, § 12, Fla.Const., which provides that:
      Counties, school districts, municipalities, special districts and local governmental bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad va-lorem taxation and maturing more than twelve months after issuance only:
      (a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation; or
      (b) to refund outstanding bonds and interest and redemption premium thereon at a lower net average interest cost rate.


author: OVERTON, Justice. BOYD, Justice,

text:
    Doretha PENNINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 58648.
    Supreme Court of Florida.
    April 16, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition for certiorari to review a decision of the Fourth District Court of Appeal which held that a trial court, when imposing a sentence after probation revocation, is not required to credit a defendant with time served at a drug rehabilitation center where such was a condition of probation. This decision is contrary to the decisions of the Second District Court of Appeal in Graham v. State, 366 So.2d 498 (Fla.2d DCA), appeal dismissed, 370 So.2d 459 (Fla. 1979), and Johnson v. State, 334 So.2d 334 (Fla.2d DCA 1976). We find direct conflict and have jurisdiction under article V, section 3(bX3), Florida Constitution (1972). We approve the instant decision of the Fourth District and discharge the petition.

The relevant facts reflect that petitioner, Doretha Pennington, pleaded nolo conten-dere to possession of cocaine. The trial judge withheld adjudication of guilt and imposed a three-year period of probation, with the condition that petitioner was “to be remanded to a live-in drug rehabilitation program and to be released only to probation officer.” Subsequent to a stay of 363 days in the rehabilitation center and while serving the remainder of the probationary period, petitioner violated probation by changing her place of residence without consent and by failing to follow the instructions of her probation supervisor. The trial court consequently revoked petitioner’s probation and sentenced her to five years in the state penitentiary. Upon defense counsel’s motion, the trial court initially gave credit for the days served at the rehabilitation center but later rescinded that order. The Fourth District Court affirmed the denial of credit. 382 So.2d 907.

Petitioner contends it is (1) a denial of equal protection under the United States Constitution and (2) violative of double jeopardy precepts under the United States and Florida Constitutions to disallow her credit for the time served at the rehabilitation center.

Petitioner first asserts that this case is controlled by our decision in State v. Jones, 327 So.2d 18 (Fla.1976), and by section 921.161(1), Florida Statutes (1977), which require that upon probation revocation, a defendant must be credited for any time served in county jail. Pennington maintains that it is a denial of equal protection to allow credit for time served in county jail and at the same, time disallow credit for time served at an inpatient rehabilitative facility.

Two United States Circuit Court of Appeals decisions have addressed this exact question. Harkins v. Wyrick, 589 F.2d 387 (8th Cir. 1979); Makal v. Arizona, 544 F.2d 1030 (9th Cir. 1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977). Both of these courts determined that it was not a denial of equal protection to allow credit for jail time but not for time spent in a rehabilitative center or state hospital. In so holding, both courts found that those in jail and those in rehabilitative centers or state hospitals constituted two different classes of persons and that “there is no constitutional infirmity in reasonable classifications and in the treatment of different classifications differently. See Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954); Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989 (1879).” 544 F.2d at 1035. Both the Eighth and Ninth Circuits concluded that disallowing sentence credit for other than jail time served suffered no constitutional infirmity and was strictly a matter for state concern. We agree with the reasoning of these circuits that rehabilitation center time served need not be credited under equal protection mandates.

Pennington’s second contention is that denial of rehabilitation center credit violates the United States and Florida constitutional prohibitions against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In North Carolina v. Pearce, the United States Supreme Court held that multiple prison sentences for the same crime placed a defendant in double jeopardy, $nd that defendants must be credited for any jail time exacted for the same offense. The Court did not, however, address whether rehabilitative center confinement constituted a “jail term” which required credit.

Other jurisdictions have addressed this issue. The South Dakota Supreme Court, in State v. Lohnes, 266 N.W.2d 109 (S.D. 1978), determined that denial of credit for time spent at a state training school as a condition to probation was not contrary to double jeopardy prohibitions. The court stated: “Time served on probation need not be credited on a sentence imposed after revocation.... This is true even where one of the conditions of probation includes some form of incarceration.” Id. at 114. Accord State v. Fuentes, 26 Ariz.App. 444, 549 P.2d 224, aff’d, 113 Ariz. 285, 551 P.2d 554 (1976) (adopting lower court opinion); People ex rel. Robinson v. Warden, 58 A.D.2d 559, 396 N.Y.S.2d 19, appeal dismissed, 42 N.Y.2d 1051, 399 N.Y.S.2d 214, 369 N.E.2d 770 (1977). See State v. Babcock, 226 Kan. 356, 597 P.2d 1117 (1979).

We conclude that North Carolina v. Pearce does not extend double jeopardy protections to require sentence credit for probationary order restrictive conditions. Halfway houses, rehabilitative centers, and state hospitals are not jails. Their purpose is structured rehabilitation and treatment, not incarceration.

We are aware that some courts have determined that credit for rehabilitation center confinement must be given. See, e. g., Lock v. State, 609 P.2d 539 (Alaska 1980); People v. Rodgers, 79 Cal.App.3d 26, 144 Cal.Rptr. 602 (1978); People v. Stange, 91 Mich.App. 596, 283 N.W.2d 806 (1979). Those jurisdictions, however, have controlling statutes which require that result. Our statute, section 921.161(1), states: “[T]he court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence” (emphasis ours). We decline to extend the statute’s plain language to require that credit be given in other circumstances.

The instant decision of the district court is approved, and the petition for review discharged. The decisions of the Second District Court in Graham v. State, 366 So.2d 498 (Fla.2d DCA 1979), and Johnson v. State, 334 So.2d 334 (Fla.2d DCA 1976), are disapproved.

It is so ordered.

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

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I would quash the decision of the district court of appeal, and would hold in favor of the results reached in Graham v. State, 366 So.2d 498 (Fla.2d DCA), appeal dismissed, 370 So.2d 459 (Fla.1979), and Johnson v. State, 334 So.2d 334 (Fla.2d DCA 1976). While I cannot fault the majority’s reasoning based on the authorities cited, I would place a different construction on our statute dealing with the allowance of credit for time served. In this context, I see little if any rational distinction between the denial of liberty through incarceration in jail and the denial of liberty by way of confinement in the structured environment of a training or treatment center. Therefore, I respectfully dissent.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Louis JACKSON, Respondent.
    No. 58404.
    Supreme Court of Florida.
    May 14, 1981.

      H. Glenn Boggs, Asst. Staff Counsel, UPL, Tallahassee, Florida, Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, and Clifford L. Walters of Knowles, Blalock, Coleman, Landers & Walters, Bra-denton, for petitioner.
    Henry P. Trawick, Jr. and Michael M. Ingram of Trawick & Griffis, Sarasota, for respondent.
   PER CURIAM.

We have for review the order of referee recommending that the Supreme Court of Florida accept the order set forth in the joint motion and stipulation of settlement, and that the respondent, Louis Jackson, be ordered to pay costs in accordance with the motion to tax costs. Jurisdiction is pursuant to article V, section 15, Florida Constitution.

The Florida Bar’s petition against unauthorized practice of law was filed against respondent on January 7, 1980, charging him with 1) rendering legal advice to officials of the city of Sarasota, Florida, with respect to matters essentially involving Florida public employee relations law; 2) conducting himself in such a manner to cause city officials to regard him as the city’s labor relations counsel; 3) assuming, as a partner in a New York based law firm, continuing responsibility for supervision of the operations of the firm’s Sarasota office; 4) exercising, as a partner in the New York firm, supervisory control over associates operating on a permanent basis out of the Sarasota office, which associates were members of The Florida Bar, with respect to matters involving essentially Florida public employee relations law for officials of the city of Sarasota.

The joint motion and stipulation of settlement by The Florida Bar, petitioner, and Louis Jackson, respondent, is as follows:

WHEREAS, The Florida Bar filed a petition against the unauthorized practice of law charging that certain activities of the respondent constituted the unauthorized practice of law; and,
WHEREAS, the Supreme Court of Florida issued its rule to show cause to Louis Jackson requiring a response; and,
WHEREAS, the respondent, Louis Jackson, filed an answer to the petition and the petitioner has subsequently engaged in certain-discovery; and,
WHEREAS, The Florida Bar is willing to conclude this matter against the respondent, Louis Jackson, if the referee recommends, and the Supreme Court of Florida will agree to this settlement and enter the order set forth below.
The Florida Bar and Louis Jackson jointly stipulate and agree as follows:
1. The procedural provisions of Article XVI of the Integration Rule of The Florida Bar are, for the purpose of this settlement, hereby waived.
2. If the order set forth herein below is not approved and entered by the Supreme Court of Florida, then this joint motion and stipulation is void.
NOW THEREFORE, The Florida Bar and the respondent, Louis Jackson, jointly move that this Court in full and final settlement and disposition of this cause as to the parties enter the following order:
It is hereby ordered and adjudged as follows:
1. The provisions of the foregoing joint motion and stipulation are approved and confirmed.
2. After considerable discovery by petitioner, and upon the representation of respondent that he is now fully retired from the practice of law and is no longer engaged in any employment with the City of Sarasota which could be construed as the practice of law, which representation petitioner relies on, it is hereby adjudged that this case is moot, and it is dismissed for that reason.
3. It is further ordered that respondent pay the costs of this proceeding to petitioner. The amount of such costs shall be determined by this Court in a motion to fix costs submitted by petitioner subsequent to the entry of this order by this Court.

The referee recommended in his order of January 5, 1981, that we accept the order set forth in the joint motion and stipulation of settlement. As set forth in the joint motion and stipulation, The Florida Bar is willing to conclude this matter against the respondent if we agree to this settlement.

We agree and hold that:

1. The provisions of the joint motion and stipulation are approved and confirmed.

2. After considerable discovery by petitioner, and upon the representation of respondent that he is now fully retired from the practice of law and is no longer engaged in any employment with the city of Sarasota which could be construed as the the practice of law, it is hereby adjudged that this case is moot and it is dismissed for that reason.

3. It is further ordered that respondent pay the costs of this proceeding to petitioner. The amount of such costs is determined to be $180.30.

It is so ordered.

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


text:
    Lloyd C. GARMISE, Petitioner, v. STATE of Florida, Respondent.
    No. 59327.
    Supreme Court of Florida.
    May 14, 1981.
    Roy E. Black and Frank C. Furci, Law Offices of Roy E. Black, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, and Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., Miami, for respondent.
   PER CURIAM.

The decision of the Third District Court of Appeal, 382 So.2d 769, is reversed and remanded for consideration in view of our recent decision in Vagner v. Wainwright, 398 So.2d 448 (Fla. 1981).

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.