text:
    Murray GARDNER v. Elisha WILLIAMS.

    Civ. 2193.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.
    Rehearing Denied Oct. 22, 1980.

      Michael A. Figures, Mobile, for appellant.
    Stephen J. Flynn and Mitchell G. Lattof, Jr., Diamond, Lattof, Gardner, Pate & Peters, Mobile, for appellee.

        Editor’s Note: All proceedings of Listle L. Vaughn in the Court of Criminal Appeals and Supreme Court of Alabama, published in the advance sheets at this citation (390 So.2d 304 308), were withdrawn from the bound volume and will be republished together with an opinion on rehearing.

   HOLMES, Judge.

The plaintiff sued the defendant for assault and battery. Defendant appeals from a jury verdict and resulting judgment in the amount of $8,800. We affirm.

The dispositive issues are (1) whether the trial court committed reversible error in allowing certain testimony concerning defendant’s character, (2) whether the conduct of the plaintiffs attorney so aroused the prejudices of the jury as to require reversal, and (3) whether a police report was properly admitted into evidence.

The record reveals the following:

Both plaintiff and defendant were members of the International Longshoremen’s Association. At a union meeting held on June 3,1975, there arose a factional dispute of such intensity that the police were summoned to quell the disturbance.

The defendant was in the center of the controversy and was disrupting the meeting, daring anyone to call the police. The sergeant-at-arms did make such a call, and when plaintiff pointed out the defendant to the officers who arrived at the scene, the defendant struck plaintiff in the jaw. The defendant was then arrested.

The blow shattered plaintiff’s teeth. There was testimony that plaintiff suffered approximately $4,500 actual damages in dental bills and lost wages.

The defendant filed a counterclaim, alleging plaintiff was guilty of assault and battery. At the close of the evidence, the learned trial judge granted plaintiff’s motion for directed verdict on the counterclaim. As indicated, the jury returned a verdict of $8,800 in favor of plaintiff.

On appeal, defendant first argues the trial judge erred in overruling his objection to a question put to one of the arresting officers. Counsel for plaintiff, in cross-examining the officer, asked if the officer had gone to the union hall on more than one occasion to arrest the defendant. After defense counsel’s timely objection was overruled, the officer answered in the negative.

We see no need to address plaintiff’s contention that this question was proper even though defendant had not taken the stand ■to testify. We reach this conclusion because even if defendant’s character was not yet in issue, there was no reversible error due to the negative answer of the witness.

In order to justify reversal, the defendant must not only establish error, but must also show that he was probably prejudiced by the error. Watson v. McGee, Ala., 348 So.2d 461 (1977). Put another way, this court cannot reverse a judgment for the improper admission of evidence unless it appears that the error has probably injuriously affected the substantial rights of a party. See, Rule 45, ARAP.

Thus, there is no reversible error unless it is shown that in response to an improper question prejudicially inadmissible evidence has been elicited and admitted. Smith Kelley-Supply Co. v. Bryant, 285 Ala. 712, 235 So.2d 848 (1970). To this court, this rule is especially pertinent where, as here, the answer to the question was not only in the negative, but was in fact favorable to the complaining party. Tankersley v. Webb, 263 Ala. 234, 82 So.2d 259 (1955).

The defendant, through able counsel, further alleges that counsel for the plaintiff engaged in such highly prejudicial conduct as to warrant reversal, pointing to several instances which he argues necessitate this result. First, he contends that in his opening statement counsel for plaintiff introduced immaterial and prejudicial matter concerning the “obscene and vile” language of defendant at the union meeting. He further argues that plaintiff’s counsel unduly persisted in trying to elicit testimony concerning defendant’s prior convictions after the trial judge had ruled this line of questioning premature. Next, he contends plaintiff’s counsel stepped up into the jury box almost touching a juror while cross-examining, a witness. Finally, he argues it was improper for plaintiff’s counsel to mention the defendant’s counterclaim in his closing argument.

Turning first to the opening comments, we find no reversible error. The trial judge sustained defendant’s objection to this line of argument which was a proper exercise of his discretion. However, we are not prepared to say the remarks were of such gravity that they might have improperly influenced the verdict. Cook v. Latimer, 274 Ala. 283, 147 So.2d 831 (1962).

In Cook, supra, the supreme court did reverse because of certain opening remarks, but there the trial court overruled the opposing party s objections to statements that were not only “entirely irrelevant and grossly prejudical” but were also “rank hearsay.” 274 Ala. at 287, 147 So.2d at 834. Suffice it to say that here, where the trial court sustained defendant’s objection to matters that were not inadmissible in and of themselves as hearsay, and where there was no motion to exclude, no grounds for reversal exist. See, Lunsford v. Deitrich, 93 Ala. 565, 9 So. 308 (1891). Indeed, witnesses were allowed to testify as to defendant’s language, which certainly contained “fighting words,” until the trial judge decided it prudent to ask the witnesses to abbreviate as best they could.

Furthermore, we do not find that the persistent effort of plaintiff’s counsel to introduce evidence of defendant’s prior conviction warrants reversal. Assuming without deciding that the offer was premature as found by the trial judge, the evidence itself was not intrinsically illegal. Neither did it have the sole intended effect of prejudicing the jury. Therefore, even if counsel was overzealous in his efforts, his conduct does not warrant reversal. See, Porter Coal Co. v. Davis, 231 Ala. 359, 165 So. 93 (1936). Indeed, the evidence was properly admitted once defendant took the stand.

Also, we find no merit in defendant’s arguments concerning the conduct of plaintiff’s counsel in allegedly stepping up into the jury box. The record reveals counsel was examining a defense witness in an effort to arrive at the vantage point of the witness in viewing the incident. In attempting to follow the instructions of the witness and place himself in a similar position, counsel apparently stepped into or near the jury box.

While it is improper practice to intentionally touch a juror, Hallman v. State, 36 Ala.App. 592, 61 So.2d 857 (1952), there is no showing here of anything more than inadvertence in approaching the jurors. We fail to see how this incident could have harmed the substantial rights of the defendant in any way.

Additionally, we find no reversible error in plaintiff’s counsel, during closing argument, mentioning defendant’s counterclaim, even though the trial judge had granted plaintiff’s motion for directed verdict. We note the trial judge admonished the jury that any claim by the defendant against the plaintiff was not an issue and not for its consideration. In view of the above, we find no substantial prejudice to the defendant has been shown. Thus, we are not free to reverse on this point. Walker v. Cardwell, Ala., 348 So.2d 1049 (1977); S. S. Kresge Co. v. Ruby, Ala., 348 So.2d 484 (1977).

Addressing the final issue raised, we find the admission of the police report was proper.

Although the reports of investigating officers are not ordinarily admissible as they are deemed hearsay, Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972), this rule is varied if the report comes within the ambit of one of the exceptions to the hearsay rule. Dennis v. Scarborough, Ala., 360 So.2d 278 (1978).

Such an exception is that of “past recollection recorded,” and a memorandum such as a police report is admissible if the following requirements are met:

The witness must testify that he presently knows (or testifies to facts showing that he presently knows):
“(1) That he personally observed the event or facts referred to in the writing and that the writing was made or seen by the witness either contemporaneously with the event or when his recollection of the event was fairly fresh.
“(2) That he then knew the contents of the writing and knew such contents to be true and correct.
“Where the witness testifies that the writing is in his own handwriting, he may testify further that he knows from his general practice in making writings of that kind that what he wrote was true.
“(3) That he has no present recollection of the event other than his testimony to the matters stated in 1 and 2 above.” McElroy’s Alabama Evidence, § 116.03.

360 So.2d at 279.

Suffice it to say that the investigating officer here stated he personally observed the events referred to in the writing and that he contemporaneously made the writing based on what he observed. He stated he had no independent recollection of the events. Although he at first attempted to testify after looking at the report, he soon became confused. At this point, the learned trial judge admitted the report into evidence. Clearly, the proper predicate was laid and there was no error.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex Parte Murray GARDNER. Re Murray GARDNER v. Elisha WILLIAMS.
    80-86.
    Supreme Court of Alabama.
    Jan. 23, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Luther Lanier ISBELL, Jr. v. STATE.
    6 Div. 997.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Tom L. Larkin, of Shores & Larkin, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Luther Lanier Isbell, Jr., was indicted and tried for obtaining or attempting to obtain a controlled substance, tepanil ten-tab, by fraud, deceit, misrepresentation, or subterfuge. The jury found the appellant “guilty as charged.” The trial court sentenced him to three years imprisonment in the penitentiary. This appeal follows.

We find it unnecessary to the decision of this appeal to set out the facts giving rise to the instant charge. We have examined this record and note that the State presented a prima facie case in this cause. See Alford v. State, 381 So.2d 203, 3 Div. 958 (Ms.Ala.Cr.App. November 20, 1979).

I

Appellant first argues on this appeal that the action of the State Board of Health in scheduling diethylpropion (the generic name for the substance appellant allegedly attempted to obtain) as a controlled substance was an unconstitutional delegation of legislative authority. This precise issue was raised in Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975). Cassell, supra, held that, in passing Title 22, Sections 258(26) and 258(30), Code of Alabama, 1940, as amended (presently codified as Sections 20-2-20 and 20-2-24, Code of Alabama, 1975), the Alabama Legislature did not unconstitutionally delegate legislative authority to the State Board of Health by authorizing that board to place certain drugs on the controlled substances list.

Appellant presents no new ground for declaring this statute unconstitutional, and, therefore, no reversible error has been shown on this issue. Williford v. State, Ala.Cr.App., 365 So.2d 1257 (1978), cert. denied, Ala., 365 So.2d 1258 (1979); Napier v. State, Ala.Cr.App., 338 So.2d 463 (1976).

II

Appellant next avers that, since the drug diethylpropion did not appear in the list of controlled substances under Schedule Four in Section 20-2-29, Code of Alabama, 1975, the Legislature intended that the substance be removed from control.

Section 1-1-10, Code, supra, provides in pertinent part as follows:

“... [A]ll statutes of a public, general and permanent nature, not included in this Code, are repealed.”

Section 1-1-11, Code, supra, provides as follows:

“All laws and all statutes or parts of statutes which are repealed or abrogated by this Code, or are repugnant to any law repealed by this Code and which have not been reenacted or consolidated, shall continue to be so repealed or abrogated.”

The Alabama Uniform Controlled Substances Act was passed by the Alabama Legislature on September 16, 1971, Acts of Alabama, 1971, No. 1407, pp. 2378-2402, and was codified as Title 22, Sections 258(25)-(60), Code of Alabama, 1940, Recompiled 1973.

This act was carried forward and included in the Code of Alabama, 1975, in Sections 20-2-1 through 93. Section 20-2-32 of said act provides as follows:

“The state board of health shall revise and republish the schedules annually (Acts 1971, No. 1407, p. 2378, § 213.).”

The Legislature obviously did not intend to repeal the controlled substances scheduled by the State Board of Health, pursuant to Title 22, Section 258(26), Code, supra (Section 20-2-20, Code, supra) if they provided for the schedules’ annual revision and republication.

Thus, this argument of the appellant is without merit.

There is no error shown by the record in this cause. This case is due to be and is hereby

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Luther L. ISBELL. (Re Luther L. Isbell v. State of Alabama).
    79-447.
    Supreme Court of Alabama.
    Nov. 7, 1980.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Lou WILLIAMS v. STATE.
    7 Div. 721.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

All of the issues raised by appellant on the original submission were fully considered. It was thought that no opinion was necessary. In appellant’s application for rehearing, he raises no substantially different issues, but in view of all the circumstances, including an opportunity for a full review by the Supreme Court of Alabama of what we hold, this opinion is written.

A jury found appellant guilty of an assault with intent to murder Arkamae Regina Grimmett. The court sentenced him to imprisonment for five years.

The alleged victim testified that while she was working at Republic Steel on the 11:00 p. m. to 7:00 a. m. shift, defendant phoned her and told her that he had left some money for her in another building of the plant; she went to that building and while there she was caught by defendant and badly injured. She said:

“He pushed me over to a big old coil of steel and he started beating me up against it. And at the time he was beating me he said, ‘You are going to tell me how long you have been-around with that nigger.’ ”

There was strong corroborating testimony as to the severity of her injuries to her head and other portions of her body. A large amount of blood was found at the scene. She was hospitalized for seven days; sixty-nine stitches were taken on her head.

The victim testified at length about her relationship with defendant. She had been living with him off and on for a long time, but had recently caught him in bed with another woman. He in turn had claimed that she was fornicating with another man.

The appointed attorney on appeal was not defendant’s attorney on the trial. He makes four contentions on appeal.

1. He challenges the sufficiency of the evidence to show an assault with intent to murder, arguing that the unusual method employed by defendant to commit a battery upon the victim does not show an assault with intent to murder. It was unusual in that it appears that instead of using a hard object as a weapon against the head, he used the head as a battering ram against the hard object. This presented no danger to the anvil, but it defies reason to say that he could not have thereby killed the victim.

2. Appellant complains of references in the argument of State’s counsel to the jury to a 2 X 4 board that was found near the scene with blood on it. The State offered the board in evidence, contending that, even though the victim did not testify that defendant used the board, it presented some evidence that he did use it on the head of the victim. The court sustained defendant’s objection. This occurred in the presence of the jury, and the jury observed the exhibition of the board. During the argument of counsel, at the conclusion of the evidence, in which the only evidence presented on behalf of defendant was that of a witness in the nature of alibi testimony, counsel for the State argued:

“Well, if he wasn’t there why is there so much concern about what happened to this lady and a board up side of the head? Think about that for a minute.”

Defendant promptly objected to the argument and moved for a mistrial. It appears that the court attempted to handle the question out of the hearing of the jury but that the argument was so loud that the jury probably heard some of it. In ruling on the matter, the court said:

“I understand. The board is not in evidence. The board would not be referred to other than at the scene of the crime and the possibility of it being a weapon or anything like that, that is not to be argued.”

No further reference to the board is to be found. The court was correct in its ruling in not permitting the board to be introduced in evidence for the purpose stated by the State. The argument of counsel for the State was not only illogical but also, in the belief of the writer, would probably have been rejected by the jury. There was no specific ruling by the court adverse to defendant on the point. It is believed that defendant was not injured in any way by the State’s attempt to argue that there was evidence that defendant hit the victim over the head with the board.

3. The third contention of appellant is as to the State’s effort to impeach the only witness for the defendant. Her testimony was in support of his claim of an alibi, she saying that he was with her at or about the time of the alleged crime. She was cross-examined rather extensively as to whether she was convicted in Etowah County on a charge of second degree forgery. The effect of her answers was that she didn’t remember, she didn’t know or that she wasn’t sure. After she left the witness stand, the State offered in evidence a certified copy of the bench notes signed by the circuit judge then presiding showing that in 1971 a person by the same name of the witness had pleaded guilty to forgery in the second degree and sentenced to two years in the state penitentiary and that she had been granted probation. As soon as the offer of the certified copy of the bench notes was made, defendant’s counsel said, “I don’t know whether that’s one and the same.” The court then said, “I will allow it.” Counsel for defendant then stated, “Note our exception.” Appellant relies largely upon Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874, 876 (1975), wherein it is stated:

“The proper method of proving the prior conviction is not through the testimony of the circuit clerk, but rather by a certified copy of the minute entry showing the . prior conviction. Childers v. Holmes, 207 Ala. 382, 92 So. 615; Thompson v. State, 100 Ala. 70, 14 So. 878; Palmer v. State, 1975, 54 Ala.App. 707, 312 So.2d 399.”

Appellant relies also upon what was stated in Napier v. State, Ala.Cr.App., 344 So.2d 1235, 1238 (1977), as follows:

“A former conviction of a person for an offense against the law may be proven by a certified copy of the judgment of the former conviction and, when necessary, a certified copy of the indictment or complaint in the former case, and proof that the person on trial and the person named in the certified judgment is one and the same person, or by the admission of the defendant. ...”

There was no general objection by defendant to the particular evidence offered. If his counsel’s statement, “I don’t know whether that’s one and the same,” constitutes an objection, it does not challenge the method by which counsel for the State was endeavoring to prove the prior conviction; it is limited to the ground that it does not show that “the person on trial and the person named in the certified judgment is one and the same person,” and it is vague and obscure as to any such ground. Even if it were sufficient to raise the point that the document does not show that the witness sought to be impeached was the same person as the defendant with the same name that had been convicted of forgery in the second degree, there is little likelihood, perhaps the remotest possibility only, that she was not. Her name is not one often heard; it is precisely the same as the name of the defendant in the forgery case. In cross-examining the witness as to her identity and as to whether she had been convicted of the forgery, the following occurred:

“Q. Did you not plead guilty of the charge in May of 1971, sentence of two years?
“A. No, I hadn’t-I hadn’t served no sentence or nothing else.
“Q. Ma’am?
“A. I hadn’t served no sentence, 2 years or nothing else.
“Q. I didn’t ask you if you had served any sentence. Let me ask you this. Was your address 615 North 8 Street-
“A. That’s where I was raised, yes.
“Q. -Gadsden, Alabama? Was your sister Cynthia?
“A. Right.
“Q. Were you 17 years old in 1971?
' “A. I guess.
“Q. Were you or were you not? Did you not plead guilty to a charge of forgery, second degree?
“A. I don’t remember. Like I said, the man said it was my sister and he said he saw a pregnant woman [she had testified that she was pregnant then] with her, but as far as anything else, I don’t remember.”

The trial docket sheet as to the forgery conviction was signed by a judge of the Circuit Court of Etowah County, who retired about five years after the entry. The trial judge in the instant case became a circuit judge soon after the other judge’s retirement and was a long time resident and attorney in Etowah County. In our opinion, it cannot be correctly said that there was substantial injury to defendant in the admission in evidence of the certified copy of the trial docket sheet or bench notes in the forgery case.

4. The fourth contention of appellant is to the effect that “minimal constitutional standards for jury instruction in a criminal case” were not observed by the trial court in its oral charge. He seems to contend that the court did not sufficiently charge the jury as to the meaning of the crime of an assault with intent to murder. The court said, inter alia :

“As defined, an assault with intent to murder is an assault committed unlawfully, wilfully and maliciously and with the intent to take the life of the party assaulted. Now, unlawful means without a legal excuse or justification. Wilful means that the defendant must have been governed by his will as contradistin-guished from a sudden or rash act. And malice is the mental state or condition of one’s mind which prompts him to do an unlawful act without legal excuse or justification.”

The court also instructed the jury as to the lesser included offense of an assault and battery and gave the jury written forms of verdict as to both offenses, as well as to a finding of not guilty. No exception was taken to the court’s oral charge. No charges in writing were requested by defendant. The fourth contention of appellant is without substantial merit.

In his application for rehearing, appellant “submits,” pursuant to Rule 39(k), Alabama Rules of Appellate Procedure, under the caption ADDITIONAL STATEMENT OF FACTS, the following:

“The victim alleged that Defendant assaulted her with intent to murder. In support of her allegation she made two statements concerning the assault and battery:
“(1) ‘He pushed me over to a big old coil of steel and he started beating me up against it.’ (TR-14)
“(2) ‘He started beating me. He had both of my arms like this. And he started beating my head up against it.’ (TR-15)
“There was no evidence that a weapon had been used. There was no evidence regarding the severity of the beating. There were no verbal threats. There is no other evidence which would create an inference that the victim’s death was intended.
“When Defendant presented an alibi witness, the State introduced into evidence, over objection, a ‘trial docket sheet’ for the purpose of showing that said witness had been convicted of Forgery in the Second Degree. (TR-126)
“During the State’s presentation of evidence, the State offered a 2" X 4" board as evidence (TR 40-43). The State thought the board was the weapon used in the assault and battery. The board was excluded from evidence. (TR 41-43). The closing argument the Prosecutor told the jury:
“ ‘Well, if he wasn’t there why is there so much concern about what happened to this lady and a board up side of the head? Think about that for a minute.’ (TR-129).
“Defendant’s motion for mistrial was ignored.”

Appellant requests in his application for rehearing that this Court “add to or correct” his additional statement of facts “in its opinion on rehearing.” The foregoing part of the opinion does so to some extent. It continues to do so hereinafter with reference specifically to appellant’s “additional statement.”

The two quotations in appellant’s “additional statement” as to what the victim testified is correct. We now give each quotation in its context:

“Q. What happened then?
“A. He pushed me over to a big old coil of steel and he started beating me up against it. And at the time he was beating me he said, ‘You’re going to tell me how long you have been f. . .ing around with that nigger.’
“Q. I want you to step back down here now and draw the coils of steel.
“Q. And what happened then?
“A. He started beating me. He had both of my arms like this. And he started beating my head up against there. And he told me I was going to tell him how long I had been f... ing around with that nigger.
“Q. What happened then?
“A. That’s the last I remember. I went out.
“Q. What’s the next thing you remember?
“A. Waking up in the hospital.”

Appellant is correct in his statement that there “was no evidence that a weapon had been used” and in his statement that there “were no verbal threats.” He is incorrect in his statement that there “was no evidence regarding the severity of the beating” and that there was “no other evidence which would create an inference that the victims[m’s] death was intended.”

The next two paragraphs of the application under the caption ADDITIONAL STATEMENT OF FACTS are correct. If by the last statement under said caption, “Defendant’s motion for mistrial was ignored,” appellant means that the court did not expressly rule upon the motion for a mistrial, he is correct.

We have searched the record for error prejudicial to defendant and have found none. The judgment rendered on original submission affirming the judgment of the trial court should stand and appellant’s application for rehearing should be overruled.

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.

OPINION ISSUED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

      . By Supplemental brief he relies also upon Hope v. State, Ala.Cr.App., 381 So.2d 676 (1980).


author: PER CURIAM. ENGLAND, C. J., and SUNDBERG, J.,

text:
    Amos Lee KING, Appellant, v. STATE of Florida, Appellee.
    No. 52185.
    Supreme Court of Florida.
    May 8, 1980.
    Rehearings Denied Sept. 26 and Dec. 11,1980.

      Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for ap-pellee.
   PER CURIAM.

The appellant Amos Lee King was convicted by a jury of the first-degree murder of Natalie Brady and of the offenses of escape, involuntary sexual battery, robbery, arson, and attempted first-degree murder of James McDonough. After a jury recommendation of death for the first-degree murder conviction, the trial judge imposed the death sentence. We have jurisdiction. We affirm the convictions and the imposition of the death sentence.

The relevant facts are as follows. On March 18, 1976, the appellant was an inmate at the Tarpon Springs Community Correctional Center, a work release facility, serving a sentence for larceny of a firearm. On this date a routine bed check was made by James McDonough, a prison counselor, at about 3:40 a. m. The appellant King was absent from his room. The counselor began a search of the building grounds and found the appellant outside the building. Appellant was wearing light-colored pants which had the crotch portion covered with blood. The counselor directed King back to the office control room inside the building. When the counselor turned to get handcuffs, King attacked him with a knife. A struggle ensued, and the counselor received several cuts and stab wounds. King left the office, then returned and found the counselor talking to his superior on the phone. He stabbed the counselor again and cut the telephone cord.

At approximately 4:05 a. m., the police and fire personnel arrived at the scene of a fire at a house approximately 1500 feet from the correctional center. The police officers discovered the body of Natalie Brady. She had received two stab wounds, bruises over the chin, and burns on the leg. An autopsy revealed other injuries, which included bruises on the back of the head, hemorrhaging of the brain, hemorrhaging of the neck, and broken cartilage in the neck. There was a ragged tear of the vagina, apparently caused by the wooden bloodstained knitting needles which were found at the scene, as well as evidence of forcible intercourse. Appellant’s blood type was found in Brady’s vaginal washings. The medical examiner attributed Mrs. Brady’s death to multiple causes and established the time of death as 3:00 a. m. Arson investigators concluded that the fire was intentionally set at approximately 3:00 to 3:30 a. m.

An indictment charging King with the first-degree murder of Natalie Brady, together with the arson and robbery of her house, was returned by the grand jury. The state attorney filed a direct information, charging King with escape and the attempted murder of McDonough. Although the information and indictment of-fénses were not consolidated, both were set for trial on July 5, 1977. Pretrial motions and orders were considered jointly, with one order being entered. On the date of trial, counsel for the defendant advised the court that he would not agree to a consolidation, and the court advised the state that it could proceed on either the indictment or the information offenses. The state initially elected to proceed on the information offenses but subsequently, on the basis of new authority under Florida Rule of Criminal Procedure 3.151, moved to consolidate. The motion was granted.

The jury found King guilty of all offenses and recommended the imposition of the death penalty for the first-degree murder. The trial judge immediately imposed the death penalty and subsequently filed written findings of fact in support of that decision.

Part I — Convictions

The appellant raises five challenges to the validity of his convictions.

Consolidation

Appellant’s first argument is that the indictment offenses were improperly consolidated with the information offenses. Appellant contends that (1) no consolidation is proper without consent of the defendant, and (2) even if it is allowable, the request in this instance was so late as to be necessarily prejudicial.

Prior to July 1, 1977, the state was without authority to move for consolidation. On that date, an amendment to Florida Rule of Criminal Procedure 3.151 was adopted. After amendment, the rule stated: “(b) Two or more indictments or infor-mations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state.” (emphasis added.) The underlined amendment, allowing the state to request consolidation, was thus in effect at the time of the consolidation motion.

We find that the trial court was not in error in granting the consolidation motion. The record reflects that these two causes had been consistently treated as one during the course of pretrial proceedings and that counsel for appellant was prepared to try all offenses on the trial date. The state could not have moved to consolidate at an early stage of the case, as such a motion was not authorized until July 1. The consolidation caused no undue prejudice.

Further, the evidence of the attempted murder of the prison counselor and the appellant’s escape from the prison complex would, in our view, be clearly admissible in the trial of the indictment offenses even if they had not been consolidated. Considering the manner in which these causes were treated prior to trial, the fact that counsel was fully prepared to try all offenses, and the fact that evidence for any of the offenses would have been admissible in whichever one was tried separately, we find that there was no prejudice to the appellant in this cause.

Presence of Cameras in the Courtroom

The appellant objected to the presence of television and still cameras at his trial and contends that (1) the presence of cameras in the courtroom is inherently prejudicial and (2) the presence of cameras produced negative effects in this case sufficient to warrant reversal. The contention that cameras in the courtroom are inherently prejudicial is without merit and has previously been expressly rejected by this Court. Clark v. State, 379 So.2d 97 (Fla.1979); In Re Petition of Post-Newsweek Stations, Florida, 370 So.2d 764 (Fla.1979). With reference to the second point, we find that King has failed to demonstrate any specific denial of due process resulting from the presence of cameras in the courtroom during his trial. General allegations of prejudice are insufficient. The record reflects that the trial court was alert to any possible disruption or prejudicial effect the cameras might have had during the course of the trial. In response to certain objections and conclusory statements made by appellant’s counsel concerning the cameras, the trial court stated: “I will not hesitate to have them removed from the courtroom.” In denying the objections made by counsel for the appellant, the trial court stated:

Mr. Rondolino, I have also been aware of their [cameras] presence. I have a much better view of their activities than you do. . I have also been aware of the jurors and from what I have been able to determine from the jurors their attentions have been devoted exclusively and entirely to the witnesses’ testimony.

In our examination of this record, we find no demonstrated evidence of prejudice resulting from the presence of cameras during the course of the trial of this cause.

Juror Excused for Cause and Voir Dire Inquiry

The appellant contends that a prospective juror was improperly excused for cause after the following colloquy:

THE COURT: Mrs. Holenda and Mrs. King, did I ask you these questions also with respect to the penalty?
VENIREWOMAN HOLENDA: You didn’t ask. I’m sorry, I don’t believe that I could be impartial. I’m against capital punishment.
THE COURT: Well, here again, as I indicated to Mr. Farmer, even though you are against capital punishment, the jury itself would not be imposing the same. You would be asked to reach a verdict based upon the testimony, the evidence, and the law based as to his guilt or innocence as to each of the charges, and then as to the punishment as it relates to capital punishment. You would then be asked to vote to advise the Court as to what the jury feels would be the proper punishment. I would not be bound by your opinion, however.
VENIREWOMAN HOLENDA: I understand, but I do feel strongly about it. I’m sorry, but that’s exactly how I feel.

After this juror was excused, a bench conference was requested, at which time counsel for the appellant and the state, together with the court, discussed the appropriate type of question that should be asked a prospective juror who appeared to oppose the imposition of the death penalty. The Witherspoon requirements were reviewed, and, at the conclusion of the conference, counsel for the appellant commented:

MR. RONDOLINO: ... I just wanted to make sure we aren’t excluding a group of people that shouldn’t be excluded from a jury trial. There’s no— doesn’t appear to be a serious problem at this time, but if it would continue, I think we’d get—
THE COURT: What you are saying is that the question should be under no circumstances could they vote to impose the death penalty.
MR. RONDOLINO: Right.

[Emphasis added.]

We faced a similar issue in Witt v. State, 342 So.2d 497 (Fla.1977), in which we stated:

It is proper to exclude prospective jurors who “state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt . . . [or] who say they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them.” Witherspoon v. Illinois, 391 U.S. 510, 513-14, 88 S.Ct. 1770, 1772, 20 L.Ed.2d 776, 780 (1968) (footnotes omitted).

See Portee v. State, 253 So.2d 866 (Fla.1971).

We find the venirewoman was properly excused. Her response to the court’s inquiry was sufficient to indicate that her reservations about capital punishment would prevent her from making an impartial decision as to the defendant’s guilt. See Jackson v. State, 366 So.2d 752 (Fla.1978). The record also clearly reflects that counsel did not object or believe there was a serious Witherspoon problem concerning this juror.

The appellant further argues that it was error for the trial judge to sustain an objection to appellant’s general questioning of prospective jurors on voir dire. The controversial exchange was:

MR. RONDOLINO: Mrs. Maltese, would you be in favor of having a mandatory death penalty for certain crimes?
VENIREWOMAN MALTESE: No, sir.
MR. RONDOLINO: Would anybody here be in favor of having a mandatory death penalty—
MR. MEISSNER: Your Honor, I’m going to object. That’s not proper voir dire.
THE COURT: Sustained.

We find the form of inquiry to be improper. The question was asked collectively of the prospective jurors, and this is proper only if both the state and the defendant consent. See Fla.R.Crim.P. 3.300(b). In addition, the objection also would have been sustainable on subject matter grounds. The purpose of voir dire examination is to obtain a fair and impartial jury to try the issues in the cause. Cross v. State, 89 Fla. 212, 103 So. 636 (1925). The subject question, however, did not address the juror’s impartial application of existing law, but rather it concerned her conception of what laws should exist. We find the trial judge was clearly within his discretionary authority in sustaining the objection to the proposed inquiry.

Statements Against Interest

The final point raised by the appellant concerning his conviction involves statements, admitted over his objection, which he gave to two deputies subsequent to an alleged request for counsel. The record indicates that there was conflicting but competent evidence to sustain a finding that no request for an attorney was made prior to the subject statements. The trial court did suppress certain other statements on the grounds that they were made after a request for counsel. We find no reversible error in the admission of the subject statements.

For the reasons expressed, we find the evidence clearly sufficient to sustain each of the convictions.

Part II — Sentencing

Non-Capital Sentencing Issues

The appellant contends that because the trial court imposed the death sentence for the felony murder of Natalie Brady, it could not also impose a judgment and sentence for the underlying felony of involuntary sexual battery. We agree. Where the underlying felony was an element of the felony murder, a defendant cannot be sentenced for both the underlying felony and the felony murder. Mahaun v. State, 377 So.2d 1158 (Fla.1979); State v. Wright, 379 So.2d 96 (Fla.1979); State v. Pinder, 375 So.2d 836 (Fla.1979). We find that appellant’s sentence for involuntary sexual battery must be vacated.

The appellant also contends that the trial court erred in sentencing him to life imprisonment for the attempted first-degree murder of McDonough. Attempts to commit a capital felony are sentenced as first-degree felonies, which always carry a maximum sentence of thirty years absent a statutory provision authorizing life. There is no such authorizing statute for attempted first-degree murder, thus the sentence of life was improper. The state concedes error, and the appellant must therefore be remanded to the trial judge for resentenc-ing for the offense of attempted first-degree murder.

Imposition of the Death Sentence

In imposing the death penalty, the trial judge found the following aggravating circumstances: (a) the crime was committed while the appellant was under sentence of imprisonment for larceny of a firearm [section 921.141(5)(a)]; (b) the appellant had previously been convicted of a felony involving the threat of violence to the person, specifically robbery [section 921.141(5)(b)]; (c) the appellant, in committing the crime of murder, further committed the offense of arson and thereby knowingly created a risk of death to other persons [section 921.-141(5)(c)]; (d) at the time of committing the offense of first-degree murder, the appellant had committed burglary in the home of the victim [section 921.141(5)(d)]; (e) the crime for which the appellant was sentenced was heinous, atrocious, and cruel because of the total factual circumstances that resulted in the death of this sixty-seven-year-old victim [section 921.141(5)(h)]; (f) the appellant returned to the Tarpon Springs Correctional Facility where he attacked an unarmed counselor and stabbed him twenty times in the course of two attacks [section 921.141(5)(b)]. The trial court found the only mitigating circumstance to be the appellant’s age of twenty-three years and held that the aggravating circumstances outweighed the mitigating circumstances.

Appellant contends that the statutory aggravating circumstance of knowingly creating a great risk of death to many persons, based upon the arson offense, was not justified because no person other than the murder victim was in the house at the time of the arson. We reject this contention and find that when the appellant intentionally set fire to the house, he should have reasonably foreseen that the blaze would pose a great risk to the neighbors, as well as the firefighters and the police who responded to the call.

Appellant next contends that the trial court erred in designating the attempted murder of the prison counselor as an aggravating circumstance, asserting that the stabbing cannot be considered a previous conviction for a violent felony because that conviction was returned jointly with the instant first-degree murder conviction. We disagree. The conviction for the attempted murder was a fact at the time the jury considered its recommendation to the trial judge and at the time the trial judge imposed the death sentence. Although the facts are not identical, an analogous result was reached in Elledge v. State, 346 So.2d 998 (Fla.1977), wherein the sentencing judge properly considered as an aggravating circumstance a murder committed later in time than the subject murder, but for which a conviction already had been obtained in a separate proceeding. The legislative intent is clear that any violent crime for which there was a conviction at the time of sentencing should be considered as an aggravating circumstance. Prior convictions in existence at the time of sentencing is a normal factor considered in all sentencing and is generally recognized as appropriate in sentencing guidelines. See ABA Sen-teneing Alternatives and Procedures (1979). We find the legislature intended that the attempted murder be considered as an aggravating factor in an instance of this type. In reaching this decision, we have not overlooked our decision in Meeks v. State, 339 So.2d 186 (Fla.1976). The convictions in Meeks are factually distinguishable from those in the instant case; however, to the extent there is conflict with Meeks, we hereby recede.

The appellant also contends that the trial court committed error by finding this murder heinous, atrocious, and cruel. The record evidence in this case clearly justifies this finding; the facts as stated in the beginning of this opinion speak for themselves.

Finally, appellant argues that the trial judge erred in immediately imposing the death penalty upon receipt of the jury’s recommendation of death. Relying on Taylor v. State, 294 So.2d 648 (Fla.1974), appellant maintains that the judge should have afforded himself more time for deliberation for such an important decision. We do not find that the trial judge in this instance made a summary decision. A judge is not barred from considering and deliberating the aggravating and mitigating circumstances while the jury also deliberates.

The record reflects that at the conclusion of this case, on Friday, July 8, 1977, the judge asked counsel for the appellant whether he knew of any legal cause why sentence should not be imposed. Counsel offered no such cause. The judge then proceeded to impose the death penalty, consistent with the jury recommendation. At that time the judge stated that he would submit a written finding of the aggravating circumstances justifying the sentence on Monday, July 11. The sentencing order was in fact filed on the following Monday.

The trial judge did not make a summary decision in imposing the death sentence. His written findings reflect a specific application of the facts to the statutory aggravating and mitigating circumstances. There is no legal principle which bars the trial judge from considering the aggravating and mitigating circumstances while the jury similarly deliberates. The Taylor case is not controlling. In Taylor the trial judge imposed the death penalty despite a jury recommendation of life imprisonment. In ordering the death penalty, the judge gave no express consideration to the statutory sentencing factors and made no written findings as required by the statute. We find no reversible error in the sentencing procedure utilized by the trial court in the instant case.

Appellant’s final point challenges the constitutionality of our death penalty statute on the basis of the United States Supreme Court decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 261, 54 L.Ed.2d 173 (1978), on the asserted grounds that our statute limits consideration of mitigating factors. We have previously rejected this contention in our decision in Clark v. State, which expressly held that the statutory mitigating factors as stated in section 921.-141(6) are not exclusive. The appellant in the instant case has advanced no mitigating factors which were ignored by the trial judge due to any misapplication or misconstruction of the statute. We find this contention without merit.

In accordance with the views expressed in this opinion, all of the appellant’s convictions are affirmed. We agree that the death penalty is clearly an appropriate punishment in this cause, and therefore affirm the death sentence. We affirm the sentences imposed for escape, robbery, and arson. For the reasons expressed, we vacate the sentence imposed for the involuntary sexual battery and remand for resentencing for the offense of attempted first-degree murder.

It is so ordered.

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

ENGLAND, C. J., and SUNDBERG, J.,

concur with the Court’s affirmance of King’s convictions, the Court’s disposition of other sentences and, on the basis of Hargrave v. State, 366 So.2d 1 (Fla.1978), the affirmance of King’s sentence of death.

      . Art. V. § 3(b)(1), Fla.Const.


author: ALDERMAN, Justice.

text:
    Murray RUBIN, Petitioner, v. STATE of Florida, Respondent.
    No. 56694.
    Supreme Court of Florida.
    July 10, 1980.
    Rehearing Denied Oct. 14, 1980.
    Mark King Leban of the Law Offices of Mark King Leban, Miami, and Sam Spector of Spector & Tunnicliff, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, Third District, in Rubin v. State, 368 So.2d 69 (Fla. 3rd DCA 1979), which conflicts with Lane v. State, 337 So.2d 976 (Fla.1976), and State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974).

The two issues to be decided are: (1) Does the two-year statute of limitations in effect at the time of the crime apply, or does the subsequently enacted three-year statute of limitations, which was not effective until after the commission of the charged crimes, apply? and (2) If the two-year statute applies, was the prosecution properly commenced within this time period? Contrary to the district court’s decision, but consistent with our holdings in Lane v. State and State ex rel Manucy v. Wadsworth, we hold that the two-year statute of limitations in effect at the time of the crime is the one to be used in determining whether the prosecution was timely. We conclude, however, that the prosecution was timely commenced within the two-year period. For this reason, we approve the result of the district court’s decision affirming the convictions. We have considered the other point raised by Rubin and find it to be without merit.

By information filed June 1, 1977, Murray Rubin was charged, among other crimes, with conspiracy to commit grant larceny and with grand larceny. The conspiracy count charged that between November 30, 1974, and June 14, 1975, Rubin did meet with another to discuss and plan details as to the altering or forging of uniform airbills and the uttering of these altered or forged airbills to Riverside Memorial Chapel, Inc., a subsidiary of Service Corporation International, and receiving as a result of the forging and uttering an amount greater than that to which they were lawfully entitled. The grand larceny count charged that between November 30, 1974, and June 14, 1975, Rubin unlawfully stole $200 or more from Riverside Memorial Chapel, Inc., a subsidiary of Service Corporation International. This information was assigned Case No. 77-4257 in the circuit court of Dade County.

Then on November 3, 1977, the State filed another information containing the notation “Refile of Case No. 77-4257,” charging in almost identical language the same crimes as were charged in the June 1,1977, information. The only change in the November 3,1977, information was the modification of the corporate victim’s name from Riverside Memorial Chapel, Inc., a subsidiary of Service Corporation International to Riverside Memorial Chapel, Alton Road, Inc., a subsidiary of Service Corporation International. Other than the addition of the words, “Alton Road,” the language of the two informations is exactly the same. Rubin was convicted under the refiled information. The district court affirmed his convictions, holding that the three-year statute of limitations applied even though it was not in effect at the time of the commission of the crimes.

Rubin contends that since he was charged with crimes occurring between November 30, 1974, and June 14, 1975, section 932.465, Florida Statutes (1973) (the two-year statute of limitations in effect at the time the crimes were committed), applied. We agree. In State ex rel. Manucy v. Wadsworth, this Court held that in criminal prosecutions, statutes of limitations are considered to vest a substantive right rather than a procedural right and that the statute of limitations in effect at the time of the incident, giving rise to the criminal charges, is controlling in determining whether prosecution has been commenced timely. In Lane v. State, we reiterated that the application of the statute of limitations in a criminal prosecution is a substantive matter and consequently that the statute of limitations in effect at the time of the commission of the offense is controlling. See also Reino v. State, 352 So.2d 853 (Fla.1977); State ex rel. Ridenour v. Bryson, 380 So.2d 468 (Fla. 2d DCA 1980).

As to the second point, the State argues that even if the two-year statute applies, the trial court did not err in denying Rubin’s motion to dismiss since the first information was timely filed and the second information, containing sufficient language to link it to the first, was filed while the first information was pending. We agree. Section 932.465 mandated that prosecution be commenced within two years and, under this statute, prosecution could be commenced by the filing of an indictment or information or by any other act constituting commencement of prosecution such as a valid arrest warrant. Di Stefano v. Langston, 274 So.2d 533 (Fla.1973). Even a warrant containing an inaccuracy in the name of a corporate victim is sufficient to commence prosecution and to toll the running of the statute of limitations within the meaning of this statute. State v. Emanuel, 153 So.2d 839 (Fla. 2d DCA 1963). An information containing an inaccuracy or imperfection, which is timely filed within the period of limitations, is also sufficient to toll this statute of limitations. State ex rel. Florida Petroleum Marketers Association v. McClure, 330 So.2d 239 (Fla. 1st DCA 1976). A subsequently filed information, which contains language indicating that it is a continuation of the same prosecution, timely commenced will not be considered an abandonment of the first information and therefore will not be barred by the statute of limitations. Mead v. State, 101 So.2d 373 (Fla.1958); State v. Adjmi, 170 So.2d 340 (Fla. 3d DCA 1965).

The question then is whether the second information is a continuation of the prosecution timely commenced on June 1, 1977. The answer turns on whether the language, “Refile of Case No. 77-4257,” contained on the second information is sufficient to link it to the first information so as to evidence a continuation of the same prosecution. Mead v. State; State v. Adjmi. Since the crimes charged in the two informations are identical, we find that the refile notation on the second information was sufficient indication that the State was pursuing the same prosecution begun by an information which contained a slight inaccuracy as to the name of the corporate victim of the grand larceny and conspiracy charges. The first information tolled the limitation period, and the second information which was filed solely to correct the inaccuracy in the name of the corporation did not commence a new and distinct prosecution.

This case is distinguishable from Mead v. State, relied upon by Rubin for his assertion that the second information commenced a separate and new prosecution beyond the period of limitation. In Mead, a second information was filed, entitled “Amended Information,” which this Court found was a “brand new” charge since it contained allegations different from the first. A third information was then filed, entitled “Second Amended Information,” outside the limitation period. This third information was identical to count one of the first information, but there was nothing to link it to the first one so we held that the first one had been abandoned.

Rubin suggests that the correction in the name of the corporate victim changed the crime and therefore the refiled information in his ease commenced a new prosecution rather than continuing the one already commenced. He premises this contention on cases holding that proof of ownership in a larceny case is essential and that ownership must be proved precisely as alleged. This argument is without merit. The second information did not change the crime; it only corrected a minor inaccuracy in the victim corporation’s title. Furthermore, unquestionably, the victim was properly identified in the information under which Rubin was tried and convicted, and there is no question that ownership has been proved precisely as alleged in that information.

Accordingly, although we reject the district court’s rationale, we approve the result of its decision affirming the judgment of the trial court.

It is so ordered.

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

ADKINS, J., dissents.

      . Section 932.465, Florida Statutes (1973), provides:
      (1) A prosecution for an offense punishable by death may be commenced at any time.
      (2) Prosecution for offenses not punishable by death must be commenced within two years after commission, but if an indictment, information, or affidavit has been filed within two years after commission of the offense and the indictment, information, or affidavit is dismissed or set aside because of a defect in its content or form after the two year period has elapsed, the period for commencing prosecution shall be extended three months from the time the indictment, information, or affidavit is dismissed or set aside.
      (3) Offenses by state, county, or municipal officials committed during their terms of office and connected with the duties of their office shall be commenced within two years after the officer retires from the office.

      . Section 775.15(2)(b), Florida Statutes (1975), effective October 1, 1975, provides:
      A prosecution for any other felony must be commenced within 3 years after it is committed.


author: OVERTON, Justice.

text:
    Philip J. LaMARCHE and Bette LaMarche, his wife, Petitioners, v. The SHELBY MUTUAL INSURANCE CO. and Clearwater Prestige Homes, Inc., Respondents.
    No. 57094.
    Supreme Court of Florida.
    July 10, 1980.
    Jan G. Halisky, Clearwater, for petitioners.
    Stephen C. Chumbris of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Pe-tersburg, for respondents.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Ins. Co. of North America, amicus curiae.
   OVERTON, Justice.

This is a petition to review by certiorari a decision of the Second Decision Court of Appeal, reported as Shelby Mutual Insurance Co. v. LaMarche, 371 So.2d 198 (Fla. 2d DCA 1979). We find direct conflict with Fontainebleau Hotel Corp. v. United Filigree Corp., 298 So.2d 455 (Fla. 3d DCA 1974), cert. denied, 303 So.2d 334 (Fla.1974). We have jurisdiction under article V, section 3(b)(3), as it existed prior to April 1, 1980.

This cause concerns the coverage provided to general contractors by a comprehensive liability policy, and the question which must be decided is whether this coverage includes payment for the cost of replacing defective materials and workmanship. The district court in the instant case held no coverage should be provided. We affirm.

The relevant facts in the instant case reflect that petitioners entered into a written contract for the construction of their home with Clearwater Prestige Homes, Inc. The construction contract warranted and guaranteed all workmanship and materials for a term of five years from the date of delivery with regard to the structure. The work performed by the contractor proved to be deficient. At the time the contract was entered into, the contractor, Clearwater Prestige Homes, Inc., was insured by the respondent Shelby Mutual Insurance Company under a comprehensive liability policy stating that Shelby would pay for bodily injury or property damage for which the contractor became liable. This general coverage provision was followed by the following three exclusionary provisions:

(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warrant of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
(n) to property damage to the named insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;

The petitioner homeowners, as claim beneficiaries under this contract for insurance between the general contractor and the insurance company, contend that the average person would interpret subparagraph (a) as granting coverage for damages arising from a breach of warranty of fitness or a failure to perform work in a workmanlike manner. Petitioners further argue that the homeowner, as beneficiary of the insured, should be granted coverage because the policy is ambiguous. We reject both contentions. The district court was correct in concluding that an exclusion does not provide coverage but limits coverage. We fully approve the opinion of the district court in the instant case. Its decision is consistent with the majority of other jurisdictions which have considered this issue. The majority view holds that the purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.

To interpret the policy as providing coverage for construction deficiencies, as asserted by the petitioners and a minority of states, would enable a contractor to receive initial payment for the work from the homeowner, then receive subsequent payment from his insurance company to repair and correct deficiencies in his own work. We find this interpretation was not the intent of the contractor and the insurance company when they entered into the subject contract of insurance, and the language of the policy clearly excludes this type of coverage. Rather than coverage and payment for building flaws or deficiencies, the policy instead covers damage caused by those flaws. We agree with the explanation of this type of coverage as stated by the Supreme Court of New Jersey in Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788 (1979), in which it said:

An illustration of this fundamental point may serve to mark the boundaries between “business risks” and occurrences giving rise to insurable liability. When a craftsman applies stucco to an exterior wall of a home in a faulty manner and discoloration, peeling and chipping result, the poorly-performed work will perforce have to be replaced or repaired by the tradesman or by a surety. On the other hand, should the stucco peel and fall from the wall, and thereby cause injury to the homeowner or his neighbor standing below or to a passing automobile, an occurrence of harm arises which is the proper subject of risk-sharing as provided by the type of policy before us in this case.

405 A.2d at 791-92. The court in Weedo wrote an exhaustive opinion on this issue, discussing the majority and minority views. We fully agree with its logic and reasoning. We disapprove the contrary view expressed by the Third District Court of Appeal in Fontainebleau Hotel Corp. v. United Filigree Corp.

For the reasons expressed, the decision of the district court in the instant case is approved.

It is so ordered.

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

ADKINS, J., dissents.


text:
    David L. DeBUSK, Appellant, v. Jim SMITH, etc., Appellee.
    No. 57177.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Rehearing Denied Dec. 8, 1980.
    Waldense D. Malouf, Clearwater, for appellant.
    Jim Smith, Atty. Gen., and Frank A. Vickory, Asst. Atty. Gen., Tallahassee, for appellee.
   ALDERMAN, Justice.

DeBusk appeals an order of the county court awarding a $2,500 judgment to the State and declaring section 112.317(2), Florida Statutes (1977), constitutional. We affirm the judgment and hold that .section 112.317(2) is constitutional.

A complaint was filed with the State of Florida Commission on Ethics, alleging that DeBusk corruptly used his public office to secure a special privilege, benefit, or exemption for another by causing the alteration and falsification of copies of public documents in violation of section 112.313(4), Florida Statutes (Supp. 1974). The Ethics Commission found probable cause for holding a public hearing to receive testimony and evidence, following which it made findings and recommendations in a public report.

The Ethics Commission found that Donald Sells, a licensed frame and trim contractor, requested DeBusk’s advice on how to become a licensed building contractor in Citrus County. DeBusk, a member of the Citrus County commission, was aware of the county’s requirement that any person seeking to become a licensed building contractor must first successfully pass a written competency examination. Instead of advising Sells of this requirement, DeBusk told Sells to bring him statements from three builders and a copy of Sells’ current frame and trim license. When he had these items and the assurance of a county road department secretary that she could be trusted, DeBusk instructed the secretary to alter Sells’ frame and trim license. The occupational designation was changed from “Contractor, framing and trim” to “Contractor.” Later on the same day, DeBusk had “Contractor” changed to “Building Contractor.” DeBusk then gave the altered document to Mrs. Sells and instructed her to take it to the county building department where a competency card would be issued to her husband. Mrs. Sells followed DeBusk’s instructions and obtained a competency card based on the altered license. There was no evidence tending to show that DeBusk received any monetary consideration for these actions.

On these facts, the Ethics Commission concluded that DeBusk corruptly used his official position to secure a special privilege for Sells in violation of section 112.313(4).' The Commission recommended that DeBusk be penalized $2,500 in accordance with section 112.317(l)(a)6, Florida Statutes (1975).

DeBusk petitioned the District Court of Appeal, Second District, to review the Commission’s final action. The district court, after receiving briefs and hearing oral arguments, denied the petition. Thereafter, DeBusk sought no further review of the Commission’s action.

Subsequently, pursuant to section 112-317(2), the attorney general brought an action in the Citrus County Court to recover the penalty assessed by the Commission. DeBusk moved to dismiss, alleging that chapter 112 is unconstitutional because it is a bill of attainder and that the charges and documentary evidence before the State of Florida Commission on Ethics were based on hearsay. Concluding that it had jurisdiction over the action, the court denied the motion to dismiss, held section 112.317(2) constitutional, and awarded the State a judgment of $2,500 against DeBusk. This appeal is from that order.

DeBusk attempts to collaterally attack the validity of the proceedings before the Ethics Commission. We need not consider the collateral issues that could have been raised before the district court. The sole issue properly before us is whether section 112.317(2) is constitutional.

Chapter 112 gives each party the due process to which he is entitled. Section 112.3241, Florida Statutes (1975), provides that “[a]ny final action by the commission taken pursuant to this part shall be subject to review in a District Court of Appeal upon the petition of the party against whom an adverse opinion, finding, or recommendation is made.” That section gives one right of review where all judicially reviewable issues should be raised. The prohibition in section 112.317(2) against raising defenses in a subsequent proceeding which could have been raised and considered by the district court at the time it reviewed the final action of the Ethics Commission is merely a codification of the estoppel rule. We conclude that the section is constitutional.

Accordingly, the trial court is affirmed.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.

      . Section 112.317(2), Florida Statutes (1977), provides:
      In any case in which the commission finds a violation of this part and recommends a civil penalty or restitution penalty, the Attorney General shall bring a civil action to recover such penalty. No defense may be raised in the civil action to enforce the civil penalty or order of restitution that could have been raised by judicial review of the administrative findings and recommendations of the commission by certiorari to the District Court of Appeal.

      . Section 112.313(4), Florida Statutes (Supp. 1974), provides:
      No public officer or employee of an agency shall corruptly use, or attempt to use, his official position, or perform his official duties, to secure special privileges, benefits, or exemptions for himself or others.

      . Section 112.317(l)(a)6, Florida Statutes (1975), provides:
      (1) Violation of any provision of this part, including, but not limited to, any failure to file any disclosures required by this part or violation of any standard of conduct imposed by this part, in addition to any criminal penalty involved, shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:
      (a) In the case of a public officer:

      6. A civil penalty not to exceed $5,000.


author: ADKINS, Justice.

text:
    Manuel JUNCO et al., Appellants, v. STATE BOARD OF ACCOUNTANCY, State of Florida, Appellees.
    No. 57035.
    Supreme Court of Florida.
    Sept. 18, 1980.
    Rehearing Denied Dec. 8, 1980.

      Arnold D. Levine of Levine, Freedman, Hirsch & Levinson, Tampa, for appellants.
    Jim Smith, Atty. Gen., and Joseph W. Lawrence, II, Asst. Atty. Gen., Tallahassee, for appellees.
   ADKINS, Justice.

This is an appeal from an order of the Circuit Court in and for Leon County granting a motion to dismiss with prejudice appellants’ complaint for declaratory judgment and injunctive relief. In dismissing the cause, the trial court passed on the constitutionality of section 473.08(2), Florida Statutes (1977). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellants sought licensure as Certified Public Accountants (CPA) in Florida but were denied CPA status for failure to qualify under the statutory guidelines. Section 473.08(1) lists qualifications needed to take the CPA examination. Subsection 2 states that a person who successfully completes the examination shall be licensed if he:

(a) Shall have attained the age of 18 years; and
(b) Shall have been domiciled in this state continuously for at least 6 months; and
(c) Shall have completed 1 year of employment in the office of a Florida practitioner or an out-of-state practitioner or shall have successfully completed an additional 1-year accounting course at an accredited college or university.

There are two so-called “exceptions” to paragraph 2(c) which in fact merely allow those persons who work for one year as an accountant in the accounting department of the Public Service Commission (PSC) and those who work for a year as an accountant or post-auditor for the state auditor general to receive a certificate. § 473.-08(2)(c)(l), (2), Fla.Stat. (1977). Appellants have successfully taken the CPA examination and completed all requirements except those listed in section 473.08(2)(c). Their employment has been with the Internal Revenue Service instead of the PSC or state auditor general. The Florida State Board of Accountancy (Board) denied appellants’ application for failure to satisfy paragraph 2(c) so appellants filed a complaint alleging that the statute denied them equal protection of the law. The trial court dismissed the complaint with prejudice whereupon an appeal was filed in the district court. The cause was transferred to this Court after the trial court, in response to a question from the district court, specifically ruled that it had upheld the constitutionality of section 473.08(2)(c), Florida Statutes (1977) in dismissing the complaint with prejudice.

The Board predicated its motion to dismiss on lack of jurisdiction for failure to exhaust administrative remedies, lack of standing for failure to allege harm to appellants, and lack of sufficient allegations of ultimate fact to state a cause of action. The principle underlying the exhaustion requirement is inapplicable where adequate remedies do not abide within the administrative sphere. See Adams Packing Association v. Dept. of Citrus, 352 So.2d 569 (Fla. 2d DCA 1977); State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976). Furthermore, the jurisdiction of the circuit court to resolve constitutional issues is unaffected by the Administrative Procedure Act and remains a “necessary concomitant of the judicial power vested in the circuit courts by article V, sections 1 and 5 of the Constitution.” 344 So.2d at 590. This is not to say that a party is free to circumvent the administrative act by conjuring up constitutional claims. Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla.1978); Metropolitan Dade City v. Dept. of Commerce, 365 So.2d 432 (Fla. 1st DCA 1978).

In the proceeding at bar the appellants tacitly admit they have not complied with some of the statutory requirements. They contend that this precludes their application and denies them equal protection in that it arbitrarily and capriciously discriminates against persons of equal education and employment background. Further agency action would be futile in this case as the appellants simply have not satisfied present statutory requirements.

The state’s authority to regulate professions is derived from its police powers and may be exercised to promote the public health, safety, morals or general welfare. Sullivan v. DeCerb, 156 Fla. 496, 23 So. 571 (1945). Regulation of the practice of public accounting by a certification requirement for those who wish to practice as certified public accountants in Florida has been upheld as a legitimate exercise of the police power. Mercer v. Hemmings, 170 So.2d 33 (Fla.1964); Florida Accountants Association v. Dandelake, 98 So.2d 323 (Fla.1957), 70 A.L.R.2d 425; Heller v. Abess, 134 Fla. 610, 184 So. 122 (1938). It is true that the guaranty of equal protection of the laws may operate as a limitation on the state’s exercise of its police powers. Blitch v. Ocala, 142 Fla. 612, 195 So. 406 (1940). This is not to say that legislation enacted pursuant to the police power must apply equally and uniformly to all. Selby v. Bullock, 287 So.2d 18 (Fla.1973). It is sufficient if the classifications created are reasonable and practicable, bearing a rational relation to the governmental purpose to be served. Florida State Board of Dentistry v. Mick, 361 So.2d 414 (Fla.1978); Miami Beach v. Cohen, 47 So.2d 565 (Fla.1950). Legislation which operates to discriminate arbitrarily or oppressively will, of course, be deemed an unreasonable exercise of the police power and therefore held void as unconstitutional. State v. Lee, 356 So.2d 276 (Fla.1978).

The purpose of chapter 473 is to ensure that “only those persons who meet the high standards of proficiency established by the statute and the Board may practice as certified public accountants in this state.” 170 So.2d at 39. This goal should be viewed in light of the general statutory expression of legislative intent to preserve the public health, safety and welfare. § 455.001(2), Fla.Stat. (1977).

In Mercer v. Hemmings this Court held that out-of-state accountants whose certification requirements were equivalent to those required in Florida could not be barred from practicing here by impossible residence and clerkship prerequisites. There is no such arbitrary exclusion in the present statute. It is entirely within the legislature’s prerogative to require a year’s employment with a Florida or out-of-state practitioner as one of the conditions precedent to certification. We observe that the clerkship may even be supplanted by an additional year of study in accounting at an accredited college or university. § 473.-08(2)(c), Fla.Stat. (1977). The so-called “exceptions” for persons who work for the Public Service Commission or auditor general are in fact only specific instances of how a person may satisfy the requirement of a year’s employment with a Florida practitioner since both subsections require that the work be done under the supervision of a certified public accountant in those departments. See § 473.011(1) and (2), Fla.Stat. (1977).

Appellants argue that their employment with the Internal Revenue Service, a federal job, is the equivalent of working with the Public Service Commission or auditor general, and that they therefore deserve certification. We cannot agree that the fact of employment in the federal system necessarily qualifies a person under Florida law to practice public accounting in this state. Cf. State ex rel. The Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962) (fact that a person was licensed to practice before the United States Patent Office did not give him right to practice as a patent attorney in Florida).

The order of the trial court is affirmed on the basis that the statute is facially within the constitutional guaranty of equal protection of the laws.

It is so ordered.

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


author: PER CURIAM. SUNDBERG, C. J. and ENGLAND, J.,

text:
    Windford MINES, a/k/a Jasper Mines, Appellant, v. STATE of Florida, Appellee.
    No. 50996.
    Supreme Court of Florida.
    Sept. 25, 1980.
    Rehearing Denied Dec. 8, 1980.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz and Richard B. Greene, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from convictions of first-degree murder and aggravated battery in a nonjury trial. The appellant was sentenced to death for the first-degree murder conviction without jury participation and was sentenced to fifteen years for the aggravated battery conviction. We have jurisdiction.

For the reasons expressed we affirm the convictions but find error in the imposition of the death sentence and remand for reconsideration of the appropriate sentence.

The relevant facts reflect that the appellant, Windford Mines, was identified as the man standing by a van which was nosed into a ditch alongside Route 60 in Indian River County. The appellant was waving for help, and a Mr. Chester Earl Smith stopped to render assistance. The appellant told Mr. Smith that there had been an accident and someone was badly hurt. Mr. Smith proceeded to search for the injured person, and in the process of this search appellant pounded Mr. Smith against the truck and said, “Move, or I’ll kill you.” A brief chase ensued, but the appellant caught Mr. Smith and struck him with a machete blade on the side of the head. Appellant then took Smith’s car keys and drove away. An off-duty officer, Deputy Gibbons, was driving on Route 60 and noticed a black male driving in the opposite direction at a high rate of speed. Further down the road Gibbons spotted the van in the ditch with Mr. Smith alongside it. Inside the van Gibbons found the naked body of a dead woman, which was still warm. Other investigating officers later arrived, and a crime scene search was conducted. Their search revealed that there were five knife wounds in the chest, throat, hand, and wrist of the dead woman. Her ankles were bound with black electrical tape, and her wrists had apparently been bound with her undergarments. A fishing knife which appeared to have blood on it was found on the dashboard of the van. A medical examiner determined that the victim had been dead for less than six hours plus or minus two hours. After conducting an autopsy, he also determined that the cause of death was a stabbing, cutting-like injury into the right side of the heart.

After appellant fled the scene in Mr. Smith’s car, he drove to a motel in Polk County, Florida, where he took a woman hostage. A resident of the motel testified that appellant stated he would kill the hostage if anyone broke down the door. Appellant further stated, “I have already killed this morning, I have nothing more to lose today.” When told that the people had not died and were all in the hospital, appellant replied that the men might be but not the girl because nothing was going to bring her back to life.

The competency of the appellant to stand trial as well as a plea of insanity were substantive issues considered by the trial court. Appellant was indicted on December 2, 1975; on April 30, 1976, he was found incompetent to stand trial and was committed to the Division of Mental Health. In October, 1976, he was found competent to stand trial by the psychiatrist at the state hospital. A similar finding was made by the psychiatrist who had previously found him to be mentally incompetent and unable to assist counsel in his defense. All psychiatric examinations found and diagnosed appellant as being schizophrenic, chronic paranoid type. Another sanity hearing was held in December of 1976, and all medical testimony presented to the court at that time indicated that appellant was competent to stand trial. The trial court agreed and set the trial for January, 1977. At trial appellant indicated to his counsel that he wanted to waive trial by jury. A waiver inquiry was conducted by the trial court in open court, and a written waiver of jury was executed by the appellant.

Appellant asserted the defense of insanity at the time of the offense. Three psychiatrists testified concerning appellant’s sanity. Two of them specifically concluded that he was mentally competent at the time of the murder, and one stated that he had no opinion.

At the conclusion of the guilt phase of the trial, the trial court found appellant guilty of first-degree murder of the girl and of aggravated battery of the man who had stopped to help appellant. After a second inquiry, the appellant again waived a jury for the sentencing phase.

The trial judge imposed the death sentence, finding that: (1) the defendant created great risk of death to many persons by committing aggravated assault on the motorist whom he flagged down and by driving at a high rate of speed to a real estate office in Polk County where he abducted a secretary and held her hostage for thirteen to sixteen hours; (2) the capital felony was committed while the defendant was engaged in the commission of the felony of kidnapping in that the victim was forcibly confined against her will, having been found with her ankles tightly bound together with black electrician’s tape and her hands bound with her own panties; (3) the capital felony was especially heinous, atrocious, and cruel because before murdering the victim, the defendant had tied her legs together with such force as to leave deep marks; after “cruelly binding up the victim, the defendant proceeded to beat her severely about the head and face with such force as to cause extensive bleeding under the skin” and “then proceeded to cut and stab the victim with a fish knife five times, one stab wound going into the heart and killing her.”

The trial court found that the only mitigating circumstance was that the defendant had no significant history of prior criminal activity. The court expressly rejected the assertions made by the defendant that: (1) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; (2) the victim was a participant in the defendant’s conduct or consented to the act; (3) the defendant acted under extreme duress or under the substantial domination of another person; and (4) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. In rejecting these assertions, the trial court expressly stated that “the psychiatrists, without exception, testified that the defendant was legally sane at the time of the murder, that he understood what he was doing, that he knew the difference between right and wrong, and that he understood the nature and quality of his acts.” The trial court concluded: “I don’t think there’s any question that under the law there are sufficient aggravating circumstances in this case as would warrant imposition of the death penalty, and there are certainly insufficient mitigating circumstances to outweigh those aggravating circumstances.”

The appellant raises six points of asserted error in the trial phase of the proceedings and two points of error in the sentencing phase.

Trial Phase

The appellant first contends that the circumstantial evidence is legally insufficient to prove either premeditation or felony murder. We disagree. We find the physical condition of the body including the fact that the victim had been bound, beaten, and had multiple stab wounds, one of which was fatal and others indicating an attempt at protection, together with the conduct and admissions of the appellant were sufficient to establish both premeditation and the underlying felony of kidnapping. In our view, the evidence was clearly sufficient to convict beyond a reasonable doubt.

Secondly, appellant contends that the trial court erroneously found him competent to stand trial, and that he was denied due process of law because such finding was made while the appellant was being administered psychocoptic drugs to control his mental condition. All of the psychiatric testimony confirmed that the appellant was competent to stand trial although it recognized that the appellant had schizophrenia, chronic paranoid type. The psychiatrists also recognized that appellant should be treated with a strong tranquilizing drug to control this mental condition. We reject the assertion by appellant’s counsel that appellant was “only chemically competent.” The record clearly reflects that the trial court fully complied with procedures established by this Court for the determination of competency as set forth in Rule 3.210, Florida Rules of Criminal Procedure. The expert testimony clearly and unequivocally revealed that appellant had such control of his mental faculties as to enable him to comprehend the charges against him and to rationally aid in the conduct of his defense. There is no evidence to the contrary. There was never any doubt that the appellant had the ability to understand the proceedings and to assist counsel in his defense. The fact that appellant’s competency is the result of approved medical treatment and medical science does not invalidate that finding of competency. To hold as suggested by appellant’s counsel would mean that an individual with a mental disorder which could be controlled by medical science could not be tried for a criminal offense regardless of his ability to comprehend the nature of the proceedings and to assist counsel in his own defense.

Appellant’s third contention is that the trial court’s acceptance of the waiver of jury trial was erroneous primarily because the trial court failed to properly consider the nature of appellant’s mental illness. The evidence is clear that the request for a non jury trial was initiated by appellant himself and not by his counsel. Upon the request being made, the trial judge immediately directed appellant’s counsel to confer privately with Mines and advise him of his rights concerning such waiver. The trial court thereafter made a full inquiry of the appellant in open court. In addition, a written waiver was executed by the appellant. No objection to this waiver was ever made by trial counsel, and his remarks during final argument clearly reflected an approval of this waiver. Although the initial waiver included the penalty phase, the trial court made further inquiry of the appellant prior to the sentencing phase concerning his waiver of the jury. The appellant stated that he was willing to “let the court act.” The court then asked defense counsel if he had missed anything in his inquiry or if the inquiry had been insufficient, and counsel replied that it had not. We find nothing in this record which demonstrates that the trial judge acted improperly. In fact, he did everything possible to make sure that appellant knew the consequences of his waiver of the right to a jury trial.

In his fourth point, appellant contends that we should abandon our modified M’Naghten test and adopt the American Law Institute test for insanity including the “irresistible impulse” doctrine. In In re Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976), this Court modified the test for insanity to include the disease or defect elements of the ALI test. We expressly declined to adopt the “irresistible impulse” doctrine in Wheeler v. State, 344 So.2d 244, 246 (Fla.1977), and Witt v. State, 342 So.2d 497, 500 (Fla.1977). We reaffirm our position on that issue and reject the contention of appellant.

The appellant’s fifth point concerns an evidentiary ruling by the trial court which sustained an objection to testimony regarding appellant’s competency and mental condition at times other than on the date of the offense or at the time of trial. The witness expressly stated that he had no opinion of appellant’s competency as of the date of the offense, and we find no error in the trial court’s limiting the expert witness’ testimony under the circumstances.

Appellant’s sixth point contends that we should consider the competency proceedings in the case involving appellant’s taking of a person hostage in the real estate office subsequent to the murder. The court’s determination that appellant was incompetent to stand trial was reached ten months after his conviction and sentence in this cause. We reject appellant’s contention, particularly in view of the remoteness of time, the apparent effect these proceedings would have on appellant’s mental condition, and the extensive competency proceedings in the instant case together with the unanimous accord of the testifying experts in this cause.

In conclusion, the record in this cause was clearly sufficient to sustain a finding of guilt and competency beyond a reasonable doubt, and we find that the conviction should be affirmed.

Sentencing Phase

The appellant contends he was denied due process because the indictment in this cause failed to give him notice of the aggravating circumstances upon which the state would rely, and thus the court had no authority to impose the death sentence. This contention is totally without merit. The statutory procedure for the imposition of the death sentence, upheld by the United States Supreme Court, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1972), specifically and expressly limits the aggravating circumstances to those set forth in section 921.141(5), Florida Statutes (1975). Under the procedures adopted by this state, a defendant has full opportunity to discover the specific facts applicable to each aggravating circumstance under Florida Rules of Criminal Procedure. We find no due process violation in this procedure.

The appellant next contends that the trial court failed to properly consider the aggravating and mitigating factors set forth in section 921.141(5), (6). Under the circumstances of this case we agree with the appellant. We must vacate the sentence and remand for further consideration because the trial court: (1) used an improper aggravating circumstance in finding that appellant created great risk of death to many persons when he murdered this victim; and (2) failed to consider as mitigating circumstances the evidence that appellant may have suffered from extreme mental and emotional disturbance, and that the capacity of the appellant may have been substantially impaired by this mental condition even though he was properly found to be sane.

In its sentencing order, the trial court found that after murdering the victim, the defendant knowingly created great risk of death to many persons by flagging down a passing motorist and striking him with a machete and by driving at a high rate of speed to a real estate office where he took a woman hostage and threatened her life. We have previously held that this type of conduct does not fall within the aggravating type of conduct intended by the legislature in section 921.141(5)(c), Florida Statutes. In Elledge v. State, 346 So.2d 998, 1004 (Fla.1977), this Court held: “It is only conduct surrounding the capital felony for which the defendant is being sentenced which properly may be considered in determining whether the defendant ‘knowingly created a great risk of death to many persons.’ Section 921.141(5)(c), Florida Statutes.” It is clear from this record that at the time appellant stabbed the victim no one else was around. The victim had been dead for two to six hours prior to the occurrence of this aggravating circumstance. The circumstances of this case are clearly distinguishable from those present in Lucas v. State, 376 So.2d 1149 (Fla.1979), where this statutory aggravating circumstance was deemed appropriate in a factual situation described as a “raging gun battle.”

We find unrefuted medical testimony in this record which reflects that appellant had a mental condition diagnosed as schizophrenia, paranoid type. This condition was severe enough to require the trial judge to initially find the appellant incompetent to stand trial until his mental condition could be brought under control by medication at the state hospital. Under the provisions of section 921.141(6), Florida Statutes (1975), there are two mitigating circumstances relating to a defendant’s mental condition which should be considered before the imposition of a death sentence: “(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance”; and “(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” From the record it is clear that the trial court properly concluded that the appellant was sane, and the defense of not guilty by reason of insanity was inappropriate. The finding of sanity, however, does not eliminate consideration of the statutory mitigating factors concerning mental condition. The evidence clearly establishes that appellant had a substantial mental condition at the time of the offense. We have reduced death sentences imposed by a trial court to life imprisonment where the jury had recommended a life sentence on the basis of strong evidence of a mental disturbance including the specific type of mental condition reflected by the medical evidence in this cause. Burch v. State, 343 So.2d 831 (Fla.1977), and Jones v. State, 332 So.2d 615 (Fla.1976). The trial court erred in not considering the mitigating circumstances of extreme mental or emotional disturbance under section 921.141(6)(b) and the substantial impairment of the capacity of the defendant to appreciate the criminality of his conduct under section 921.141(6)(f). These circumstances may not be controlling, but they were present in this cause and should have been considered.

Under these circumstances, we vacate the sentence and remand the cause to the trial court to reconsider without jury the appropriate sentence after considering the appropriate aggravating and mitigating circumstances.

In accordance with the views expressed in this opinion, the conviction is affirmed and the cause remanded for resentencing by the trial judge without recommendation by a jury-

It is so ordered.

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

SUNDBERG, C. J. and ENGLAND, J.,

concur as to the conviction and dissent as to the remand for resentencing. They would reduce the sentence to life without eligibility for parole until the expiration of twenty-five years.

      . Art. V, § 3(b)(1), Fla.Const.

      . Menendez v. State, 368 So.2d 1278, 1282 n.21 (Fla.1979).