text:
    Robert PECK v. STATE.
    3 Div. 160.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.

      Frank L. Thiemonge, III, Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial on an indictment charging defendant with murder in the first degree of Jesse Underwood, Jr., a jury found defendant guilty of murder in the first degree as charged and fixed his punishment at imprisonment for life. He was sentenced accordingly.

Defendant had pleaded not guilty and not guilty by reason of insanity. There was no evidence to support his plea of not guilty by reason of insanity, and there is no contention to the contrary.

The undisputed evidence shows conclusively that the alleged victim was killed instantly by a shot from a .16 gauge shotgun in the hands of defendant. Immediately thereafter, the alleged victim’s wife, Dot Underwood, was killed by a shot from the same shotgun while still in the hands of defendant. As the question of criminal responsibility for the death of Mrs. Underwood was not an issue in the instant case, we consider it herein for the sole purpose of any light that it may shed upon the question of criminal responsibility for the homicide alleged herein and upon any of the issues raised on this appeal.

The homicide was another Saturday night tragedy that occurred at Dot’s Lounge on Cleveland Avenue in Montgomery, on May 19, 1979. Dot’s Lounge was operated by Underwood and his wife. During recent months defendant had frequented the lounge. There was also evidence that he had been “running around” with Dot. Loyal to him was his own wife, who testified in his behalf to the effect that he had undergone a great change, for which she manifested sympathy rather than hate, since he started his relationship with Dot and Dot’s Lounge. Testimony of several witnesses for defendant presented a picture of a man of a good general reputation, a hard worker and a man of good judgment and manners. Some of them, however, were not acquainted with his activities after sundown, that is, after working hours, during a few months before May 1979.

As revelry in the form of drinking, gambling and smoking marijuana seemed to prevail for a considerable period before the shooting, the testimony as to what was seen and heard at Dot’s Lounge is not without confusion and equivocation as to details. Perhaps the clearest account, whether altogether true or not, and whether reasonable or not, was presented by defendant himself.

Defendant testified that he had been working Saturday morning, that he quit work in the early afternoon, received a check from his employer that included money that was to be paid sub-employees, that he cashed the check and paid the sub-employees. He planned to go fishing with his wife that afternoon, but she wasn’t at home when he arrived there in the truck. Thinking she had gone fishing at Lucky Lake, he put his shotgun in the truck and went looking for his wife at Lucky Lake, but she was not there. He then went to Dot’s Lounge,, where he engaged in some card games with Dot and others, some beer drinking, and some cigarette smoking of a kind to which he was not accustomed. He said that a woman at the place asked him to give her two dollars, stating that she wanted to get the money together to get “something good” to smoke. Instead of giving her two dollars, he gave her a twenty-dollar bill, with the understanding that she was to take two dollars out of the twenty-dollar bill and return to him the difference. His testimony continued:

“Q. Now, who did you ask for the money?
“A. I asked Dot first and she said she didn’t have it and then I asked Jesse.
“Q. And what did he say?
“A. He told me I would have to ask Dot.
“Q. Did you ask Dot again?
“A. I asked Dot again.
“Q. And what did she say?
“A. ‘Ask Jesse’ and I said, ‘Now, Jesse, you know Dot got my money. Tell your wife to give me my money.’
“A. So I got up, I left and we.nt home to make me some coffee, and I started to kinda losing myself then, and then I came back. I do remember I came back and asked them for my money.
“Q. All right. Let me ask you this. When you got out, did you do anything, on the outside?
“A. Well, I shot the shells out by the lounge in the dirt.
“Q. What kind of shells did you have?
“A. .16 gauge shells of a shotgun.
“Q. What kind of shot did they have in them if you know?
“A. No, sir, I don’t know what kind of shot it had.
“Q. After then'what did you do after you got [shot] the gun in the ground?
“A. So, I walked inside and they asked me, 'Who was that doing that shooting out there?’ I said, T shot that shot out there.’ I said, T just want you all to give me my money so I can go because I’ve got to go to work in the morning.’
“Q. All right. Now where was Jesse at this time?
“A. He was behind the bar.
“Q. When you walked in the front door, where did you go to?
“A. I just walked on in and had the gun down beside me and then he said, ‘Golf [the familiar name by which defendant was called], you ought to be ashamed.’ I said, ‘Naw, I want my money. Just give me my money so I can get the hell out of here.’
“Q. What did he say then?
“A. He said, T told you we didn’t have no damn money for you.’ I said, ‘Jesse, I don’t cuss.’ I said, ‘Are you mad?’ So he said, ‘Did Dot say we don’t have no money for you, we ain’t got no money for you.’ I said, ‘But you know she’s got it, Jesse.’ And then he walked up to the end of the bar and then he stopped.
“Q. Then what happened?
“A. He said to me, he said, T ain’t giving you no money.’ I said, ‘You’re gonna give me my money, Jesse.’ So he said, ‘You got the shotgun.’ I said, ‘Sure.’ I said, ‘But it ain’t for you.’ I said, ‘I just brought it in here.’ I said, T don’t know why I did, but,’ I said, T really want my money.’
“Q. Then what happened?
“A. So, then Dot said, ‘Jesse, we ain’t got no G_d ... damn money.’ So Jesse said, ‘We ain’t going to give you a G.d _ . . damn thing.’ He said, ‘I done shot one Nigger’s _ - out.’
“Q. But he told you he had done shot
“A. One Nigger’s - _ out and mine wasn’t no better. So then I backed up a little piece and when I started to backing up well, then, he started coming on behind me.
“Q. He started where now?
“A. I started to backing up towards the door. I was going to leave, and he started on after me.
“Q. All right. Then what happened?
“A. And then he started coming you know, like he was just going to come, you know, and I’m going to beat him off with the shotgun like this, and he must have got too close, or something. All I know what happened, it just shot.
“Q. Did he ever grab the end of the barrel or not?
“A. I don’t know, sir, whether he grabbed the barrel or what.
“Q. Are you conscious that you pulled the trigger nor not?
“A. The gun shot. I don’t know really what happened right in that time. I don’t know. All I know is it fired off.
“Q. After the gun shot, what happened then?
“A. Well, like Dorothy, she was approaching me, too, and by this time she went to turn back on the table to get — I know she was going to get that pistol off that — out of that pocketbook on the table.
“Q. Now, have you ever seen her with a pistol before?
“A. Yes, sir.
“Q. On how many occasions?
“A. Every time I see her.
“Q. What kind of a pistol was it?
“A. A .38.
“Q. What did it look like?
“A. It was a black or brown handle, I believe it was a brown handle. I’m not for sure, but I do know, it’s a .38 because she used to unload it at the motel lot. I used to tell her not to bring a loaded gun in.
“Q. You said she went for her purse. Is that right?
“A. Yes, sir.
“Q. And you knew the gun was in the purse?
“A. Yes, sir, I knew it.
“Q. What did you do then?
“A. I shot her.
“Q. You shot her. Is that right?
“A. Uh — huh.
“Q. What happened after you shot her?
“A. I set the gun up side the car and went next door to call the police.

Testimony from other witnesses, although in many respects corroborative of defendant’s testimony, differs from his materially in that, according to it, the alleged victim was sitting in a booth at the time he was shot by defendant.

Defendant had great difficulty in attempting to explain why he had the gun in his hands as he returned to the lounge, but he stated that the reason he had the gun with him that afternoon was that he had planned to go fishing at Lucky Lake and that Lucky Lake had snakes in it which he contemplated as targets for his gun.

There was ample evidence to support the verdict of the jury to the effect that defendant with premeditation and deliberation intentionally killed the alleged victim with malice aforethought and that one or more, if not all, of the essential elements of the defense of self-defense were not present. There is no contention on appeal to the contrary.

We do not agree with appellant’s first insistence on reversal on the ground that the trial court erred in refusing the following written charge requested by defendant:

“No. 32
“Manslaughter in the second degree, is defined as the unlawful killing of another human being, without malice and without the intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner.”

For authority for the contention, appellant relies exclusively upon Chavers v. State, Ala., 361 So.2d 1106 (1978) rev’g Ala.Cr.App., 361 So.2d 1096 (1977) and Davis v. State, 31 Ala.App. 508, 19 So.2d 356, cert. denied, 246 Ala. 101, 19 So.2d 358. In neither of the cited cases was there a requested written charge that was held to have been erroneously refused that merely stated an abstract principle of law defining or explaining manslaughter in the second degree, as was Charged 32 in the instant case. In each of the cited cases, defendant had requested orally that the court charge upon manslaughter in the second degree as a lesser included offense and excepted to the court’s failure to do so. At no time did the defendant in the instant case request or. make known to the court a position- or a contention that the evidence permitted a finding by the jury of guilt of manslaughter in the second degree. In Chavers, supra, in reversing the trial court, as well as this Court, the Supreme Court based its reversal on the in tandem action of the trial court in failing to charge orally bn manslaughter in the second degree as a lesser included offense and in refusing to give defendant’s requested written charges on the subject. Written charge No. 32 in the instant case would have been misleading and without any field of application, in the absence of an instruction to the jury, which defendant did not request, submitting the issue of manslaughter in the second degree to the jury. The court fully and correctly instructed the jury on the issues as to murder in the first degree, murder in the second degree and manslaughter in the first' degree. It gave the jury a form of verdict as to each, as well as a form for finding defendant not guilty. There was no exception whatever to the court’s oral charge. The trial court should not be placed in error for refusing a written charge as to an issue that defendant did not raise. The refusal of Charge 32 was not error; even if error, the refusal, in the absence of any other instructions on the subject, was not harmful to defendant.

The court refused the following written charge requested by defendant:

“No. 8 The State must prove its charge, and prove it beyond a reasonable doubt by the evidence. The assertions of counsel are not evidence.”

It was held in Morse v. State, 49 Ala.App. 203, 269 So.2d 916 (1972), and Lane v. State, 85 Ala. 11, 4 So. 730 (1887), that the refusal of the identical charge constituted reversible error. Recently the Supreme Court in Lamar v. State, Ala., 356 So.2d 680, 681-682 (1977) rev’g Ala.Cr.App., 356 So.2d 677 (1977), led the way, which we follow, by stating:

“ . . . However, in the instant case, the record does not contain any remarks by counsel for either side. There is nothing to indicate that improper argument was made by the prosecuting attorney. Clearly, assertions made by counsel are not evidence, but it is not necessary in every criminal prosecution that a charge to that effect be given to the jury. If the trial court adequately charges the jury as to what evidence it may properly consider in its deliberations, and adequately charges that the state has the burden to prove its charge beyond a reasonable doubt, it is not necessary that the charge expressly exclude assertions of counsel from the jury. Lane v. State, supra, does not compel a reversal in all instances where the trial court refuses the charges requested by the defendant in this case.”

The record in the instant case shows affirmatively that there was no objection to any of the argument of counsel for either party. The oral charge fully covered the principle that a conviction required that the jury be convinced by the evidence beyond a reasonable doubt of defendant’s guilt. Furthermore, the oral charge contained instructions as follows:

“Now, you are the finder of facts as I told you when the case started out, and I will charge you as to the law. The facts must be found by each and every juror. You are the sole judges as to the weight that should be given to all the evidence in the case. My responsibility is to charge you as to the law. Your arena is the facts. My arena is as to the law, and the law is very clear to me that when a judge steps out of his arena of the law into the arena of the facts which belongs to the jury, he steps into an arena into which he does not belong. .
“Now, you take the testimony of the witnesses together with all proper and reasonable inferences therefrom and apply your common sense and in an honest and impartial way determine what you believe to be the truth. You should weigh all of the evidence and reconcile it if you can reasonably do so, but if there be irreconcilable conflict in the evidence you are to take that evidence which you think is worthy of credit and giv.e it just such weight as you think it is entitled to.”

It should also be noted that at the threshold of the trial, immediately after the jury had been selected and sworn, the court stated to the jury:

“Now, the lawyers will give you an opening statement and tell you what they expect to move [prove] in the case. It will be a brief statement, and by that statement I am instructing the lawyers to be brief. They will tell you what their contentions are, and as soon as that is done we will take a break and then we will come in and have the witnesses sworn individually and they will testify, and that is where you are going to get your evidence from. That is what you will determine the facts from. You won’t determine the facts from the lawyers nor the Judge. They are advocates and I am the one that instructs you as to the law. That is my responsibility, but you are the fact finders and you get the evidence from the witnesses here and anything that is introduced into evidence and is approved by the court as evidence. When that is completed the lawyers will argue their case to you and I will charge you as to the law and then the case will be yours.”

In accordance with what was held and said by the Supreme Court in Lamar v. State, supra, we hold that there was no reversible error in the refusal of defendant’s Charge No. 8.

The only other insistence upon a reversal'pertains to the action of the court in admitting in evidence a .16 gauge shotgun as the gun in the hands of defendant at the time the alleged victim was killed, over the objection of the defendant to the effect that the chain of custody of the gun had not been shown. The gun was introduced in evidence during the testimony of Officer Glenda Roy, who was one of the officers who responded promptly to a report of the shooting. She was only a half-block away from the scene when she received the report. Defendant was still there; she asked him “where was the gun and he pointed right there and there was a shotgun laying -up against a car.” She said she then picked the gun up, placed her “first two initials and my last name and the date scratched on the barrel here.” In other words, she positively identified the particular gun as the only shotgun at the scene. She was not identifying it as the gun that some other person, as a link in a chain of custody, had placed in her custody or in the custody of someone else. We note also that defendant, while testifying as a witness for himself, identified the gun as the gun used by him. The gun was properly admitted in evidence.

Notwithstanding the strong evidence of the good qualities of character of appellant that according to the evidence had been manifested by him for a long time prior to his mingling with the owners and habitues of Dot’s Lounge, and notwithstanding the circumstances of provocation that some of the evidence shows, we are not convinced that the verdict of the jury was wrong or unjust.

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

       This court affirmed the companion case for the shotgun slaying of Dot Underwood on March 18, 1980, 3 Div. 162, without opinion, all the Judges concurring.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Wayne Eugene THOMAS, alias v. STATE.
    6 Div. 744.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied May 6, 1980.

      George P. Seabourne, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., Montgomery, for appellee.
   TYSON, Judge.

Wayne Eugene Thomas, alias, was indicted and tried for forcibly ravishing the pros-ecutrix. The jury returned a verdict of “guilty of rape as charged in the indictment” and fixed his punishment at twenty years imprisonment in the penitentiary. This appeal followed.

The State’s evidence established that the prosecutrix was driving home alone from an office party at Bark’s Lounge on the night of August 27,1977, when she noticed a blue light flashing on a car behind her. When she stopped her car, a man, whom she positively identified in court as the appellant, came up to her car, showed her a badge and asked for her driver’s license. She noticed he was not in uniform and said, “You’re not a cop.” The appellant brandished a pistol and forced the prosecutrix at pistol point into his car. After driving to a ■ remote wooded area, the appellant forced the pros-ecutrix to have intercourse with him, then drove her back to her car and released her. The prosecutrix then drove to her mother s house and called the police.

The husband of the prosecutrix confirmed that he kept the children while his wife attended an office party. When she did not return home by 2:00 a. m., he got up and went looking for her and finally found her car. He notified the sheriff and later found his wife at her mother’s.

The appellant testified in his own behalf that he saw the prosecutrix’ car pull off the road and he stopped to see if she were having car trouble. Thomas, the appellant, stated that the prosecutrix suggested they drive somewhere else and have a drink. He indicated that when they parked they had intercourse, but that he did not force her in any way into this act.

I

The sole issue raised on appeal concerns the sufficiency of the affidavit upon which the search warrant of appellant’s car was issued. At no time prior to trial, during same, or by motion for new trial, were the affidavit and search warrant placed into evidence .or made a part of this record.

“[A]n affidavit and search warrant not contained in the record on appeal cannot be considered on review of the trial court’s ruling as to its sufficiency or any of the underlying circumstances supporting the warrant.”
Barbosa v. State, Ala.Cr.App., 331 So.2d. 811 (1976); Mayes v. State, Ala.Cr.App., 350 So.2d 339 (1977); McHellen v. State, Ala.Cr.App., 351 So.2d 689 (1977); Goodman v. State, Ala.Cr.App., 356 So.2d 691, cert. denied, 356 So.2d 698 (1978); and Turner v. State, 383 So.2d 393 (1980).

There is no error established by this record. See Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976), and cases cited therein.

This cause is due to be and is hereby

AFFIRMED.

All the Judges concur.


author: McDONALD, Justice. ALDERMAN, Justice, McDONALD, Justice.

text:
    Ray G. BEHM and Frances K. Behm, his wife, Appellants, v. DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, and Reno Orlando et al., Appellees.
    No. 56263.
    Supreme Court of Florida.
    Jan. 31, 1980.
    On Rehearing May 15, 1980.

      James J. Richardson of Richardson Law Offices, P. A. and Barry Richard of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellants.
    Alan E. DeSerio and H. Reynolds Sampson of Dept, of Transp., Tallahassee, for appellees.
   McDONALD, Justice.

The Behms appeal the Fourth District Court of Appeal’s determination that a condemnee in an eminent domain proceeding is not entitled to interest on a final judgment for the period of time during an unsuccessful appeal. Since the constitutionality of section 73.131(1), Florida Statutes (1969), was under attack, we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. While we agree that section 73.131(1) suffers from no constitutional impediment, we reverse the district court’s holding that the appellants were not entitled to the award of interest for the reasons set out below.

In 1970 Appellee State Department of Transportation (DOT) instituted eminent domain proceedings pursuant to chapters 73 and 74, Florida Statutes, to condemn fifteen parcels of land in Palm Beach County. An order of taking, granting DOT possession as of March 31,1971, was entered as to eleven of the parcels, including the Behms’ land. Pursuant to a stipulated order, the Behms withdrew from the court registry the sum of eight thousand eight hundred dollars ($8,800), which was the estimated value of their parcel. On September 9, 1971 the Behms received a jury verdict of thirty-three thousand seven hundred twenty-five dollars ($33,725).

In January 1972 the Behms appealed the amount of the jury verdict. Their appeal concluded on September 21, 1976 in DOT’s favor. The Behms received their final payment on November 29, 1976. The trial court awarded interest on the amount by which the jury verdict exceeded the estimate of value, but limited the award to the period of time from the date of possession of the property by DOT until the date of payment of the full verdict amount into the registry of the court. The district court upheld the interest assessment, and this appeal followed.

Section 74.061, Florida Statutes (1969), provides that condemnees are entitled to interest on condemnation awards “from the date of surrender of possession to the date of payment on the amount that the verdict exceeds the estimate of value set forth in the declaration of taking.” At issue here is the definition of “date of payment.” Appellants contend that the phrase means the date payment is finally made to them. Ap-pellees, on the other hand, assert that “date of payment” means the date on which funds sufficient to cover the jury verdict are first paid into the court registry.

This Court has previously considered the question of interest on condemnation awards and has concluded that such interest is controlled by statute. Peeler v. Duval County, 70 So.2d 354 (Fla.1954). Interest, therefore, must be determined in accordance with section 74.061. By enacting that section, the legislature provided that interest is a part of the “full compensation” required by article X, section 6, Florida Constitution, to be paid in eminent domain proceedings. It is well settled that the determination of full compensation is a judicial function. Spafford v. Brevard County, 92 Fla. 617, 110 So. 451 (1926); State Plant Board v. Smith, 110 So.2d 401 (Fla.1959); Daniels v. State Road Department, 170 So.2d 846 (Fla.1964).

In an analagous situation, the federal courts have held that interest is a component of full compensation in federal eminent domain proceedings.

The established rule is that the taking of property by the United States in the exertion of its power of eminent domain implies a promise to pay just compensation, i. e., value at the time of the taking plus an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking.

Big Eagle v. United States 323 F.Supp. 60, 62 (C.D.S.D.1971), quoting United States v. Klamath and Moadoc Tribes of Indians, 304 U.S. 119, 123, 58 S.Ct. 799, 801, 82 L.Ed. 1219, 1223 (1938) (emphasis supplied). See also Blackfeet and Gros Ventre Tribes of Indians v. United States, 119 F.Supp. 161 (Ct.Cl.1954).

This Court has expressed a similar sentiment concerning the state constitution’s guaranty of full compensation: “The theory and purpose of that guaranty is that the owner shall be made whole so far as possible and practicable.” Jacksonville Expressway Authority v. Henry G. DuPree Co., 108 So.2d 289, 292 (Fla.1959) (holding that moving costs are a proper element of damages), quoting Dade County v. Brigham, 47 So.2d 602, 604 (Fla.1950). The full compensation provision, therefore, requires that courts take into account all facts and circumstances which bear a reasonable relationship to the loss occasioned an owner by virtue of his property being taken. 108 So.2d at 291.

Under section 74.061, when a jury determines the amount of a compensation award, the responsible agency deposits that amount with the court. At that time, the sum is available to the condemnee as required by article X, section 6, Florida Constitution. The award also includes interest on the amount by which the verdict exceeds the state’s estimate. If the condemnee immediately takes the award, and interest if applicable, he has been made whole as far as possible and practicable.

If the condemnee wants to appeal the award, however, the situation is somewhat different. Section 73.131(1), Florida Statutes (1969), provides that if a condemnee appeals the jury verdict, withdrawal of the amount awarded will result in an automatic dismissal of the appeal. The condemnee, therefore, is presented with a Hobson’s choice: He can either have his appeal or he can have his money; he can’t have both.

As a general principle applicable to interest, whenever a verdict liquidates a claim and fixes that claim as of. a prior date, interest should follow from that date. English and American Insurance Co. v. Swain Groves, Inc., 218 So.2d 453 (Fla. 4th DCA 1969). If an appeal is taken, full compensation is an unliquidated claim until the appellate process concludes by either upholding or modifying the jury verdict. If a condemnee succeeds in having the verdict increased on appeal, the interest awarded spans the appeal time. This makes him whole as far as possible and practicable by making the present value of the award approach the value contemporaneous with the taking.

The Behms, however, did not receive an increased award on appeal. Denying them interest will not make them whole since, by appealing, they lost the use of that part of their award which exceeded the original estimate for five and one-half years. Denying interest to the Behms would therefore place on appellants in eminent domain proceedings an unjustified double burden— having to choose between taking an appeal or taking the award, as well as having to prevail on appeal in order to receive present value of the award. Under such a scheme, only winners would receive the full compensation mandated by the state constitution.

If a jury verdict is appealed, full compensation is not determined until the appellate process concludes. If there are insufficient funds on deposit to pay the award at that time, the responsible agency must pay into the court registry such funds as are sufficient to pay the award, including interest. We hold, therefore, that the “date of payment” referred to in section 74.061 is the time that funds are made available to the landowner at the completion of the appellate process.

This cause is remanded to the trial judge, with instructions to enter a judgment for interest on the sum of twenty-four thousand nine hundred twenty-five dollars ($24,-925) from the date of the judgment resulting from the jury verdict (September 9, 1971) until the principal sum was available to the Behms (November 29, 1976).

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

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I would affirm the decision of the District Court of Appeal, Fourth District.

McDONALD, Justice.

ON MOTION FOR CLARIFICATION

The parties have advised this Court that included in the amount recovered by the land owner was the sum of $9,500.00 for business losses. It was not the intent of this Court to require the payment of interest on that part of the award that represented business losses.

The right.to business damages is a matter of legislative grace, not constitutional imperative. Lost profits and business damages are intangibles which generally do not constitute “property” in the constitutional sense. Jamesson v. Downtown Development Authority of the City of Fort Lauderdale, 322 So.2d 510 (Fla.1975). Interest is not payable by the state on business damages. Department of Transportation v. Pink Pussy Cat, Inc., et al., 314 So.2d 192 (Fla. 1st DCA 1975.)

The opinion of this Court is amended to direct the trial judge to enter judgment for interest on the sum of $15,425.00 rather than on $24,925.00.

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

      . Behm v. Division of Administration et al., 366 So.2d 828 (Fla. 4th DCA 1979).

      . Peeler interpreted former section 74.06, Florida Statutes, which reads as follows:
      . . . said judgment shall include as a part of the just compensation awarded, interest at the rate of six per cent per annum on the amount finally awarded as the value of the property, from the date of the surrender of possession to the date of payment, but interest shall not be allowed on so much thereof as may have been paid into court.

        Peeler does not control the instant case, however, due to the change in the statutory language. See § 74.061, Fla.Stat. (1969).

      . “It is well settled that where a party recovering a judgment or decree voluntarily accepts the benefits thereof, he is estopped to seek reversal thereof by appeal. His conduct amounts to a release of errors.” Lovett v. City of Jacksonville Beach, 187 So.2d 96, 101 (Fla. 1st DCA 1966). See Weatherford v. Weatherford, 91 So.2d 179 (Fla.1956); McMullen v. Fort Pierce Financing and Construction Co., 108 Fla. 492, 146 So. 567 (Fla.1933).


author: ALDERMAN, Justice. ENGLAND, Chief Justice,

text:
    Fredford James EUTSEY, Appellant, v. STATE of Florida, Appellee.
    No. 55985.
    Supreme Court of Florida.
    April 24, 1980.

      Alan H. Schreiber, Public Defender; and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Mary E. Mars-den, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Justice.

The imposition of an increased sentence pursuant to section 775.084, Florida Statutes (1977), Florida’s habitual offender act, is before us on direct appeal because the trial court, in imposing an enhanced sentence, upheld the constitutionality of this act against a challenge that it violated appellant’s right to due process of the law. We hold that the act is constitutional, and we affirm the enhanced sentence.

The appellant, Fredford Eutsey, was tried and convicted of burglary of a dwelling. The State thereafter filed a written notice advising Eutsey that it would seek to have him declared an habitual offender. The notice alleged that the offense for which Eutsey was convicted and would be sentenced was committed within five years of his prior felony conviction for attempted armed robbery on or about January 23, 1976, and that imposition of a sentence under section 775.084 is necessary for the protection of the public from further criminal activity by Eutsey. Eutsey moved to strike the notice on the basis that it was vague and indefinite and also moved to dismiss the notice on the basis that the habitual offender act does not afford him the full panoply of due process rights accorded an accused in a criminal trial determining guilt. During the hearing on these motions, Eutsey generally objected to the admissibility of presen-tence investigation reports in habitual offender sentencing proceedings; however, he made no specific challenge to any portion of his presentence report, and he did not expressly dispute the truth of any matters contained within this report. In denying the motion to strike, the trial court held that the notice was sufficient and concluded that Eutsey was in no way prejudiced. In denying the motion to dismiss, the court found that many of the rights which Eutsey claimed were allowed under the habitual offender act. It further noted that Eut-sey’s presentence report had been available to defense counsel at all times.

At the conclusion of the hearing, the trial court found, beyond and to the exclusion of every reasonable doubt, that Eutsey is the same person who was convicted of attempted robbery on January 23, 1976, and received a three-year sentence; that he is the same person who was convicted on July 20, 1978, of burglary in the present ease; that each is a felony; and that the latter conviction was within five years of the earlier conviction, and commission of the latter crime was within nineteen or twenty days after Eutsey’s release from prison on the first felony for which he was sentenced. The court further found that Eutsey had not received a pardon and that his convictions had not been set aside in post-conviction relief proceedings. The court went on to make extensive specific findings relative to its conclusion that an enhanced penalty was necessary for the protection of the public. The court then sentenced Eutsey to twenty-five years in the state prison.

The purpose of the habitual offender act is to allow enhanced penalties for those defendants who meet objective guidelines indicating recidivism. The enhanced punishment, however, is only an incident to the last offense. The act does not create a new substantive offense. It merely prescribes a longer sentence for the subsequent offenses which triggers the operation of the act. The determination of whether one may be sentenced as an habitual offender is independent of the determination of guilt of the underlying substantive offense, and new findings of fact separate and distinct from the crime charged are required. Reynolds v. Cochran, 138 So.2d 500 (Fla.1962).

Relying upon Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), Eutsey challenges the constitutionality of section 775.084 on the basis that it deprived him of due process of the law because it fails to provide him the same rights accorded an accused in a criminal trial. The State responds that Specht is distinguishable and that its holding should not be extended to encompass habitual offender proceedings but rather we should rely essentially on Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), for disposition of this matter.

Specht v. Patterson involved a challenge to Colorado’s sex offender statute on the basis that the act allowed a critical finding to be made without a hearing and on the basis of hearsay evidence to which defendant had no access. The Supreme Court held the Colorado act unconstitutional and said: “Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed.” 386 U.S. at 610, 87 S.Ct. at 1212. The Court distinguished Specht from its earlier decision in Williams v. New York where it held that the due process clause does not require that a defendant be permitted to confront and to cross-examine witnesses as to his prior criminal record considered by the court in sentencing him in a regular sentencing. The Supreme Court adhered to Williams but declined to extend it to Specht because it determined that the Colorado sex offender statute presented a different situation in that it made one conviction the basis for commencing another proceeding under another act rather than making the commission of a specific crime the basis for sentencing.

Eutsey was accorded all due process rights specified in Specht, but he contends he is entitled to more. He argues that in view of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which made the right to trial by jury on the issue of guilt in criminal cases applicable to the states, and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which made the standard of proof beyond a reasonable doubt on the question of guilt applicable to the states, he is also entitled to these rights in habitual offender proceedings.

The federal act that allows increased sentences for special offenders, 18 U.S.C. § 3575, grants to defendants procedural safeguards substantially similar to those provided by Florida’s habitual offender statute. The rationale of the United States Court of Appeals, Fifth Circuit, in United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977), upholding the constitutionality of the federal act, is persuasive. In Bowdach, the Fifth Circuit concluded that Specht should be limited to those due process guarantees expressly enumerated in that opinion of the Supreme Court and that Specht does not require proof beyond a reasonable doubt and trial by jury in a sentencing proceeding of a defendant under the recidivist portion of 18 U.S.C. § 3575. See also United States v. Neary, 552 F.2d 1184 (7th Cir. 1977).

Additional support for our decision is found in Hollis v. Smith, 571 F.2d 685 (2d Cir. 1978). In that case, the Second Circuit held that a New York sex offender statute, which did not provide for trial by jury and did not require proof beyond a reasonable doubt in the separate sentencing proceeding, did not deprive the defendant of due process of the law. The court stated:

We are wholly unconvinced that even if the Specht Court had had the benefit of the later Duncan decision, it would have required Colorado to afford a jury trial under its Sex Offenders Act. One reason is the difference in history and tradition recounted above; the importance of this was underscored in McKeiver v. Pennsylvania, 403 U.S. 528, 548, 91 S.Ct. 1976, [1987], 29 L.Ed.2d 647 (1971), where, particularly due to such a difference in history, the Supreme Court held there was no right to a jury trial at juvenile delinquency proceedings despite its holding in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that the due process clause applies to such proceedings. A second consists of the considerations quoted from the Task Force Report. A third is the difference in the jury’s office. There still is validity in the distinction drawn by Mr. Justice Black in Williams, 337 U.S. at 246-47, 69 S.Ct. at 1083, between the trial’s role of determining “whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused,” using “rules of evidence . . . which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged,” and the task of determining whether a defendant is a danger to society or will benefit from institutional treatment. . . . There is no authority binding upon us which holds that the procedure in proceedings relating solely to punishment, even when an additional fact has to be established, must conform precisely to those in proceedings relating to guilt, and we see no basis in principle for so holding. .

571 F.2d at 693. The Second Circuit, in Hollis, also rejected defendant’s contention that this type of separate sentencing proceeding required proof beyond a reasonable doubt, concluding that In re Winship does not cover this type of proceeding.

We likewise conclude that neither Duncan nor In re Winship expand the due process requirements enumerated in Specht and that habitual offender proceedings do not require the full panoply of rights afforded a criminal during his trial as to guilt. We hold that the procedural safeguards afforded a defendant by section 775.084 are adequate and are in accordance with the due process requisites announced by the Supreme Court in Specht v. Patterson.

Additionally, incorporated in Eut-sey’s constitutional attack is a general chai-lenge to the use of presentence investigation reports in habitual offender proceedings. He argues that the use of these reports impinges on his rights to confrontation and cross-examination. We reject this contention. There is no constitutional prohibition against the use of presentence investigation reports in habitual offender proceedings; however, because the trial court must make separate statutory findings to justify an enhanced sentence, it is imperative, where the defendant disputes the truth of hearsay statements contained in presentence investigation reports, which would be material to the statutory findings which the trial court is required to make, that the court require the State to produce corroborating evidence. United States v. Fatico, 579 F.2d 707 (2d Cir. 1978); United States v. Hodges, 556 F.2d 366 (5th Cir. 1975), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 762 (1978); United States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972).

In Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979), Judge Robert Smith, writing for the First District Court of Appeal, analyzed in depth the use of presen-tence investigation reports and their hearsay contents in habitual offender proceedings. This decision construed subsections (3)(a) and (3)(c) of section 775.084 so as to preserve legitimate access by the sentencing courts to presentence investigation reports while also affording to defendants their due process rights. One of the questions in that case was the extent to which the trial court’s determination that an extended sentence is “necessary for the protection of the public from further criminal activity” by the defendant may be influenced by the probation officer’s presentence investigation report as distinguished from the evidence conventionally produced in court. The district court explained that the finding by the court that it is necessary to protect the public from defendant, although essentially a prediction, depends on certain identifiable discrete facts such as his general course of behavior, his family, his education, vocation, and so on. We adopt the following language from Adams v. State:

Once admitting the possibility in principle of distinguishing such discrete “facts” from the body of general information revealing the defendant’s personality in the presentence report, one’s task is simply to judiciously classify, in those terms, the hearsay so represented. Specht-spon-sored rights of witness confrontation and cross-examination are to be accorded in respect to hearsaid “facts”, not otherwise corroborated, which particularly show the defendant’s criminal propensity, and so particularly impel a prediction that extended imprisonment is necessary to protect the public from it. The court otherwise remains free to inform itself as in ordinary sentencing through presentence report hearsay, subject to the defendant’s right to produce his own witnesses,. and his right of allocution.
If the defendant disputes the truth of presentence report hearsay in respect to which he asserts rights of confrontation and cross-examination, and he wishes to exercise those rights, he must of course timely say so. Nukapigak v. State, 576 P.2d 982 (Alaska 1978); State v. Wells, 265 N.W.2d 239 (N.D.1978); see also U. S. v. Warme, 572 F.2d 57 (2d Cir. 1978), cert. den., 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 393 (1978). It follows that the sentencing court must devise orderly procedures for identifying hearsay in the presentence report which is disputed by the defendant, which the court intends to consider in its potential Section 775.084 findings, and which the defendant asserts, and the court finds, is subject to witness confrontation and cross-examination rights. See, e. g., 18 U.S.C. Section 3575(b).
If the defendant is effectively to exercise his right of confrontation and cross-examination of witnesses in respect to hearsaid “facts” in the presentence report otherwise uncorroborated, which particularly evidence his criminality, the defendant must know the report contains such hearsay. Not otherwise can the defendant contest the truth of the critical hearsay, call on the court to decide whether it is of such a nature as to require corroboration, and demand his rights of confrontation and cross-examination of corroborating witnesses. Even with respect to hearsay “background” facts which do not singly point to the defendant’s future criminality, the defendant has the right in all sentencing proceedings, more especially in Section 775.084 proceedings, to offer “submissions and evidence . which are relevant to the sentence.” Fla.R.Crim.P. 3.720(b); see also the Committee Note to that rule. .

376 So.2d at 56.

Judge Smith also correctly pointed out that the Specht-based confrontation and cross-examination rights in section 775.084 proceedings do not reach hearsay repetition of ingredient facts of the offense for which the defendant is to be sentenced and that the sentencing court, in predicting the defendant’s future criminality, may freely rely on facts which the defendant admitted in previous judicial proceedings, or which were proved by witnesses who were subject to confrontation and cross-examination.

We hold that defendant and his counsel should be provided a copy of the presentence report, including any part of the confidential section that the court may intend to rely on for any purpose undér section 775.084, sufficiently in advance of the hearing to permit defendant adequate time to prepare and to respond, pursuant to any reasonable requirements imposed by the trial court for contesting the hearsay, if he wishes to contest any hearsay in the presentence report.

In the present case, Eutsey was given full access to the presentence investigation report and was given full opportunity to contest any part of its contents. He did not dispute any particular information contained in the report, however, and only made a general objection to its use in this type of sentencing proceedings. See McClain v. State, 356 So.2d 1256 (Fla. 2d DCA 1978).

Eutsey additionally maintains that he was denied due process because the findings of fact of the trial court are inadequate to make meaningful his appeal. Section 775.084(3)(d) requires that the trial court make findings of fact that show- on their face that an extended term is necessary to protect the public from defendant’s further criminal conduct. These findings, however, need not be in writing but may be reported in the transcript of the sentencing hearing. King v. State, 369 So.2d 1031 (Fla. 4th DCA 1979). The findings of the trial court in the present case are more than sufficient to make Eutsey’s appeal of his enhanced sentence meaningful.

Eutsey’s contentions that the evidence was insufficient to declare him an habitual offender and that prejudical error was committed by the State’s failure to disclose certain matters are without merit. We also reject his contention that the State failed to prove that he had not been pardoned of the'previous offense or that it had not been set aside in a post-conviction proceeding since these are affirmative defenses available to Eutsey rather than matters required to be proved by the State.

Accordingly, having found that section 775.084 is facially constitutional and that no reversible error was committed by the trial court, we affirm the sentence.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG and McDONALD, JJ., concur.

ENGLAND, C. J., concurs in part and dissents in part with an opinion.

ENGLAND, Chief Justice,

concurring in part/dissenting in part.

I concur with the Court’s determination that section 775.084, Florida Statutes (1977), is facially constitutional. I further agree that section 775.084(3)(d), and due process, require the trial court to make findings of fact which show on their face that an extended sentence is necessary to protect the public from defendant’s further criminal conduct. I recognize that findings of fact need not be in writing.

My review of the record in this case, however, suggests that the trial court’s oral findings, reflected in the transcript of the sentencing hearing, were insufficient to allow meaningful appellate review. Judge Smith noted in Adams v. State, 376 So.2d 47, 58-59 (Fla. 1st DCA 1979), that

[t]he statutory requirement for findings of fact, capable of review on appeal, is the cap of a legislative purpose which . assures the defendant in Section 775.084 proceedings of [due process]
In order that an appellate court may perform its duty to review the sentencing court’s ultimate finding . we must be apprised of, the underlying facts and circumstances which the trial judge relied on in making that finding. Otherwise, the appellate court will be left with the hopeless task of determining from the raw data in the presentence report and elsewhere what material might have influenced the trial judge to the ultimate finding . and, in a real sense, the appellate court will be put in a position of duplicating the sentencing function which is properly and exclusively that of the trial court.

This case should be remanded for a new enhanced sentencing proceeding!

      . Section 775.084, Florida Statutes (1977), provides:
      775.084 Habitual felony offenders and habitual misdemeanants; extended terms; definitions; procedure; penalties.—
      (1) As used in this act:
      (a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has:
      a. Previously been convicted of a felony in this state;
      b. Twice previously been convicted of a misdemeanor of the first degree in this state or of another qualified offense for which the defendant was convicted after the defendant’s 18th birthday;
      2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;
      3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and
      4. A conviction of a felony, misdemeanor, or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.
      (b) “Habitual misdemeanant” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has at least twice previously been convicted of the same crime committed at different times after the defendant’s 18th birthday;
      2. The misdemeanor for which the defendant is to be sentenced was committed within 2 years of the date of the commission of the last prior crime or within 2 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a crime, whichever is later;
      3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this section; and
      4. A conviction of a crime necessary to the operation of this section has not been set aside in any post-conviction proceeding.
      (c) “Qualified offense” means any offense in violation of a law of another state or of the United States that was punishable under the law of such state or the United States at the time of its commission by the defendant by death or imprisonment exceeding 1 year or that was equivalent in penalty to a misdemeanor of the first degree.
      (2) For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period.
      (3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) and if the defendant is an habitual felony offender or an habitual misdemeanant. The procedure shall be as follows:
      (a) The court shall obtain and consider a presentence investigation report prior to the imposition of a sentence as an habitual felony offender or an habitual misdemeanant.
      (b) Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant.
      (c) Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.
      (d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.
      (e) For the purpose of identification of an habitual felony offender or an habitual misde-meanant, the court shall fingerprint the defendant pursuant to s. 921.241.
      (4)(a) The court, in conformity with the procedure established in subsection (3) and upon a finding that the imposition of sentence under this section is necessary for the protection of the public from further criminal activity by the defendant, shall sentence the habitual felony offender as follows:

      (c) If the court decides that imposition of sentence under this section is not necessary for the protection of the public, sentence shall be imposed without regard to this section. At any time when it appears to the court that the defendant is an habitual felony offender or an habitual misdemeanant, the court shall make that determination as provided in subsection (3).
      (d) A sentence imposed under this section shall not be increased after such imposition.

         Phipps v. State, 352 So.2d 102 (Fla. 1st DCA 1977).


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Marion Watkins KELLY, Respondent. STATE of Florida, Petitioner, v. Alfred W. COTE, Respondent. STATE of Florida, Petitioner, v. Leon Jessee HICKS, Respondent.
    Nos. 56509, 57140 and 57178.
    Supreme Court of Florida.
    April 24, 1980.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, Ed Austin, State’s Atty. and Susan Podzamski and John W. Pafford, Asst. State’s Attys., Jacksonville, and James T. Russell, State’s Atty. and C. Marie King, Asst. State’s Atty., Clearwater, for petitioner. •
    Louis 0. Frost, Jr., Public Defender, and Charles M. Johnston, Jr., Asst. Public Defender, Jacksonville, for Marion Watkins Kelly.
    Robert E. Jagger, Public Defender and Bruce P. Taylor, Asst. Public Defender, St. Petersburg, for Alfred W. Cote.
    Loyd C. Mosley, Clearwater, for Leon Jessee Hicks.
   OVERTON, Justice.

These consolidated cases are from county court orders declaring sections 322.261 and 322.262, Florida Statutes (1977), unconstitutional as an unlawful delegation of legislative authority to the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services. We reverse and remand for trial for the reasons expressed in State v. Bender, 382 So.2d 697 (Fla. 1980).

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Willard Wayne MUNGER, Appellee.
    No. 57018.
    Supreme Court of Florida.
    April 24, 1980.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    John J. Duffy, Clearwater, for appellee.
   OVERTON, Justice.

This appeal is from a county court order declaring sections 322.261 and 322.262, Florida Statutes (1977), unconstitutional as an unlawful delegation of legislative authority to the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services. We reverse and remand for trial for the reasons expressed in State v. Bender, 382 So.2d 697, (Fla. 1980).

It is so ordered.

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


author: ALDERMAN, Justice.

text:
    Donnie W. REYNOLDS et al., Appellants, v. STATE of Florida, Appellee.
    No. 57612.
    Supreme Court of Florida.
    April 24, 1980.

      Robert E. Pyle, Lake Alfred, for appellants.
    Jim Smith, Atty. Gen. and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appel-lee.
   ALDERMAN, Justice.

This cause is before the Court on direct appeal from a final order of the trial court upholding the constitutionality of the statute requiring junkyard owners to keep records of all motor vehicles acquired as junk during the course of their business. We uphold the constitutionality of this statute and affirm the trial court.

Defendants, the owner and employees of a junkyard, were charged by information with the failure to keep records on a junk vehicle under section 319.30, Florida Statutes (1979). In a motion to dismiss the charges against them, defendants challenged the statute as being unconstitutionally vague and an unlawful delegation of legislative authority. The motion was denied, and, after reserving their right to appeal these issues, the defendants entered pleas of nolo contendere and were placed on two years probation without adjudication.

The statute under which defendants were charged provides in pertinent part:

319.30 Dismantling, destruction, change of identity of vehicle; motor vehicle declared salvage-
(6) The owner of any junkyard or salvage yard or his agent or employee who purchases or otherwise acquires a motor vehicle, or any part thereof, defined as junk or salvage or a total loss shall keep an accurate and complete record of all such motor vehicles, or any major component part thereof, purchased or received in the course of his business. As used in this subsection, the term “major component part” means the front end assembly (fenders, hood, grill, and bumper); rear body section (both quarter panels, deck-lid, bumper, and floor pan); door assemblies; engine; and transmission. These records shall contain the name and address of each person from whom a motor vehicle defined as junk or salvage or a total loss was purchased or acquired, including the signature of the person selling or disposing of same together with said person’s driver’s license number if available. These records shall indicate when such purchases or receipts occurred. For the purposes of enforcement of this section, the department or its agents and employees shall have the same right of inspection as law enforcement officers as provided in s. 812.055. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.
(7) The department shall make, promulgate, and enforce regulations as are reasonably necessary to carry out the intent of this section in accordance with the provisions of chapter 120.

The test of vagueness of a statute is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and purpose. The statute must give reasonable notice that a person’s conduct is restricted by the statute. Newman v. Carson, 280 So.2d 426 (Fla.1973).

The statute here is very similar to the pawnbroker, statute challenged in Newman. Both require the keeping of certain records, and both are for the purpose of frustrating the sale of stolen goods. We find here, as we did in Newman, that the statute is a valid exercise of the state’s police power and that it is not vague as measured by the test prescribed by this Court.

In addressing the issue of unlawful delegation of legislative authority, this Court has said that it is not necessary for the legislature to prescribe specific rules of action in conferring authority on a tribunal to be charged with some aspect of the police power. The discretion that is granted to such an agency, however, must be sufficiently governed by legislative standards as to constitute a judicially reviewable discretion. Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979). We have also recognized that the specificity of standards and guidelines may depend upon the subject matter dealt with and the degree of difficulty involved in articulating finite standards. Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978).

We find that the record-keeping standards and guidelines prescribed by the statutory provision in question are sufficiently specific to overcome the unlawful delegation challenge.

Accordingly, we affirm the order of the trial court upholding the constitutionality of section 319.30, Florida Statutes (1979).

It is so ordered.

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


author: PER CURIAM.

text:
    Pedro S. SARDUY, M. D. and Pedro S. Sarduy, M. D., P.A., Appellants, v. Xiomara T. BAKER and Charles Baker, her husband, Appellees.
    No. 58305.
    Supreme Court of Florida.
    April 24, 1980.
    David L. Wills of Law Offices of Howard E. Barwick, Miami Shores, for appellants.
    No appearance, for appellees.
   PER CURIAM.

In view of our decision in Simmons v. Faust, 358 So.2d 1358 (Fla.1978), the order of Judge Siegendorf holding the medical mediation act unconstitutional is not a trial court order appealable- to this Court. This cause is therefore transferred to the District Court of Appeal, Third District, with directions to remand to the judicial referee for termination of medical mediation jurisdiction in accordance with Aldana v. Holub, 381 So.2d 231 (Fla. 1980).

It is so ordered.

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

Opinion on transfer, Fla.App.


author: BERANEK, Judge. BERANEK, Judge. BERANEK, Judge.

text:
    Lauren Moore DELEHANT, Appellant, v. Dorothea Margaret DELEHANT, Appellee.
    No. 78-364.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Rehearing Denied May 2, 1979.
    On Rehearing May 28, 1980.
    Richard D. Sneed, Jr., Fort Pierce, for appellant.
    Russell J. Ferraro, Jr., of McManus, Stewart & Ferraro, P.A., Stuart, Vincent A. Lloyd, of Lloyd & Brown, Fort Pierce, and R. Patrick Beatty, of Saylor & Beatty, Stuart, for appellee.
   BERANEK, Judge.

This is an appeal by the husband from the final judgment of dissolution of marriage. The case suffers from numerous procedural irregularities. Notice of appeal was filed on February 17, 1978. Designations to the court reporter filed by appellant included only limited portions of the transcript of all the evidence. Ap-pellee/wife did not file cross designations to the court reporter. No portion of the transcript of actual testimony was ever filed with this court. The parties have engaged in numerous motions whereby appellant originally sought to substantially extend the time for the filing of the complete transcript as designated. Appellee has continually argued appellant only designated a small portion of. the evidence and that the portion designated would be insufficient to sustain the appeal. Appellee argues that she must have the transcript of the entire trial in order to refute the allegations made in the brief which appellant has filed and which makes no reference to any transcript. The time for the filing of appellee’s brief was extended until after appellee received portions of the transcript designated by appellant. The transcript as designated has never been filed in complete form and ap-pellee has never filed a brief. Appellant has filed a document waiving the right to be heard with regard to any argument made which is not supported by a transcript.

Under all of these circumstances the Court on November 8, 1978, ordered appel-lee to file whatever brief deemed advisable within thirty days. No brief was ever filed. The matter has thus been considered and disposed of upon such record and briefs as have been filed.

We find that the final judgment discloses error on its face and reverse.

The trial court found that the husband was unemployable but that he would be receiving certain sums of money in the future due to the sale of a jointly owned business. The parties owned two assets jointly. One was a home and the other was Seymour’s Inn, a restaurant and bar.' The court found that there were no special equities in either one.

•The court ordered child support to the wife based upon the husband’s “net worth.” This 'net worth was based on the husband’s interest in the bar. The court ordered the bar be sold and the proceeds be used to pay off various designated bills and debts growing out of the marriage. The court then stated that anything left over was to be split equally between the parties.

As to the jointly owned home, the court ordered that the wife be awarded the husband’s interest as lump sum alimony. The judgment then went on to condition this award of lump sum alimony by reciting that if the sale of the bar did not result in the husband’s getting a substantial sum of money, then wife would not get the house as lump sum alimony but instead would receive the house for an estate of ten years during which time husband and wife would pay half of all expenses.

This final judgment is reversible on its face. An award of lump sum alimony creates a vested right that survives the death of the wife and is neither modifiable nor terminable upon remarriage. Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 324; and Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). Lump sum alimony should not be ordered unless the spouse being required to pay it is financially in a position to do so without impairing his or her economic status. Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976). Here, the Court could not award the home to the wife as lump sum alimony and then condition this award of lump sum alimony on the husband’s making money out of the sale of the jointly owned business. Further, the Court could not assume a positive net worth on the part of the husband in one part of the final judgment and then recognize the very real possibility that he might make no money out of the sale of the business in another portion of the judgment. The judgment, on its face, is inconsistent and is erroneous as it affects the rights of both parties.

The final judgment is reversed in its entirety and the matter remanded for further proceedings in accord with this opinion.

REVERSED AND REMANDED.

LETTS and MOORE, JJ., concur.

ON PETITION FOR REHEARING

BERANEK, Judge.

This matter has been considered on motion for rehearing and clarification filed by appellee. In this Court’s opinion of March 7,1979, it was incorrectly stated that appel-lee had not filed a brief. Appellee’s brief was timely filed and has been considered. The opinion of March 7,1979, is corrected to so indicate. The opinion of March 7, 1979, is further clarified as follows. The final judgment as it relates.to dissolution of marriage and child custody is affirmed. In all other respects the final judgment is reversed for further proceedings in accordance with the prior opinion herein. Other than as indicated above, all requests for rehearing and clarification are denied.

LETTS and MOORE, JJ., concur.

ON PETITION FOR REHEARING

BERANEK, Judge.

This matter has been considered on appellee’s second motion for rehearing and clarification. Our initial opinion reversed the final judgment in its entirety because the trial court erroneously awarded appellee conditional lump sum alimony. Pursuant to appellee’s motion for rehearing and clarification of said opinion, we entered a second opinion affirming those portions of the final judgment pertaining to dissolution of the marriage and child custody, and reversing all remaining aspects of the judgment. The reversal concerned the portions of the judgment which relate to financial matters. We did not intend reversal of such aspects as restoration of appellee’s maiden name, and, despite argument to the contrary, doubt that counsel construed our opinion as doing so. Appellee again moved for rehearing and clarification, conceding error in the conditional lump sum alimony award, but contesting’our reversal of the other aspects on grounds that appellant, by failing to include a complete transcript in the record on appeal, failed to demonstrate error. The absence of the transcript is irrelevant, however, as the trial court’s misconception of lump sum alimony law appeared on the face of the final judgment. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1980). Our reversal of all the financial matters is not predicated on actual error in each ruling, but rather on their interrelation with the conditional lump sum alimony award. As this Court stated in Bradley v. Bradley, 327 So.2d 253, 254 (Fla. 4th DCA 1976);

[W]e reluctantly find the trial court committed error in awarding lump sum alimony to the appellee and we therefore reverse the final judgment insofar as the lump sum alimony is concerned. However, since other aspects of the final judgment may have been influenced by the lump sum alimony award, we remand the cause to permit the trial court to re-assess the matter and take further testimony if he deems it necessary to properly adjudicate the issues involved. (Emphasis supplied.)

See also Winner v. Winner, 370 So.2d 845 (Fla. 3d DCA 1979).

In accordance with our. prior opinions herein, the final judgment is affirmed in part, reversed in part, and the case remanded to the trial court for further proceedings consistent with this opinion. Other than as indicated above, all requests for rehearing and clarification are denied.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

LETTS, C. J., and MOORE, J., concur.


text:
    Ashley CONNELLY, Appellant, v. BUMBY & STIMPSON, INC., a Florida Corporation and United States Fidelity & Guaranty Company, Appellees.
    No. 78-70/NT 4-22.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 1979.
    Rehearing Denied Oct. 25, 1979.

      Ben Saxon and Edward J. Richardson of Saxon & Richardson, P.A., Melbourne, for appellant.
    Monroe E. McDonald of Sanders, McE-wan, Mims & McDonald, Orlando, for appel-lees.
   PER CURIAM.

This cause is reversed and remanded upon the authority of Ayr v. Chance, 372 So.2d 1000 (Fla. 4th DCA 1979).

REVERSED AND REMANDED.

ANSTEAD, HARRY L., LETTS, GAVIN K., and GREEN, ROBERT ALEXIS, Jr., Associate Judges, concur.


text:
    James BRANNAN, Appellant, v. STATE of Florida, Appellee.
    No. NN-289.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1979.
    On Rehearing May 9, 1980.
    Gary R. Dunham, Asst. Public Defender, Starke, for appellant.
    Maurice Giunta, Asst. State’s Atty., Gainesville, Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on petition for a writ of prohibition to prevent, on grounds of double jeopardy, petitioner’s trial of the offense of shooting into an occupied vehicle. Petitioner pleaded not guilty to the information charging that offense, requested trial by jury and a jury was selected and sworn. Thereafter, a motion to dismiss was filed alleging that the information was fatally defective, citing Hamilton v. State, 30 Fla. 229, 11 So. 523 (1892). The trial judge granted the motion to dismiss and released the jury. Counsel for the State filed an amended information worded exactly the same as the original information. Counsel for petitioner again moved to dismiss on the same grounds as his previous motion and also on the grounds that jeopardy had attached and precluded trial. The State argued that Shumake v. State, 90 Fla. 133, 105 So. 314 (1925) appeared to reach an opposite conclusion to that reached by the court in Hamilton v. State, supra. The trial judge denied the motion to dismiss and the cause was set for trial.

Jeopardy attaches when a criminal trial commences before a jury, United States v. Spinella, 506 F.2d 426 (5th Cir. 1975), rehearing denied 515 F.2d 510 (5th Cir. 1976), cert. denied 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147 (1976), and a trial before a jury commences when the jury has been selected and sworn, Bell v. Wainwright, 476 F.2d 964 (5th Cir. 1973), cert. denied 414 U.S. 1000, 94 S.Ct. 352, 38 L.Ed.2d 235 (1973).

Accordingly, petition for writ of prohibition is GRANTED and petitioner is forever discharged of the offense charged.

McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.

ON PETITION FOR REHEARING GRANTED

By Amended Petition for Rehearing, the State brings to the attention of this Court the decisions of the United States Supreme Court in Lee v. United States, 432 U.S. 23 (1977), and United States v. Scott, 437 U.S. 82 (1978). Under these decisions, the trial court’s granting of defendant’s motion to dismiss the information’after the jury has been sworn and jeopardy attached does not bar subsequent refiling and trial on the same charges.

Accordingly, the petition for rehearing is granted, and writ of prohibition denied.

McCORD, BOOTH and LARRY G. SMITH, JJ., concur.


author: PER CURIAM. DAUKSCH, Chief Judge.

text:
    Calvin Ray TYLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-2480/T4-297, 78-2481/T4-297 A.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 1979.
    Rehearing Denied March 19, 1980.
    Michael Sigman, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, C. J., CROSS, J. and MCDONALD, PARKER LEE, Associate Judge, concur.

ON MOTION FOR REHEARING

DAUKSCH, Chief Judge.

Appellant has filed a Petition for ReHearing (sic) wherein he alleges he is entitled to a rehearing because “ . . . the Court could not have correctly considered Appellant’s grounds as asserted without hearing the same in oral argument.”

This Motion is improper because it does not conform to Rule 9.330(a), Florida Rules of Appellate Procedure (1977), which requires, “The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended.” Dayton v. State, 363 So.2d 353 (Fla. 4th DCA 1978).

Further, it is essentially groundless because this court was not properly requested to grant oral argument. Rule 9.320, Fla.R.App.P. (1977).

Finally, oral argument in this case would have been of no benefit to the court in making its decision. The error alleged by the Appellant was not properly preserved for appellate review and had it been preserved, the effect was not such as to require a reversal. ■

Motion for Rehearing is stricken for noncompliance with Rule 9.330(a), Florida Rules of Appellate Procedure (1977).

MOTION STRICKEN.

CROSS, J., and McDONALD, PARKER LEE, Associate Judge, concur.