author: HARRIS, Judge.

text:
    Dorothy SMITH v. STATE.
    6 Div. 246.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.

      Fred Pickard, Birmingham, for appellant. Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant was indicted on one charge of possession of marijuana, and one charge of controlled substances, a liquid containing pentazocine, a powder containing cocaine, and tablets containing codeine. Appellant was convicted of both charges, and sentenced to four (4) years in the penitentiary.

On January 11, 1982, Officer Jimmy L. Wesson, of the Birmingham Police Department, and several other police officers executed a search warrant at 956 53rd Street North, Birmingham, Alabama. The information which led to obtaining the search warrant was obtained by Wesson from an unnamed reliable informant, who said he had observed someone purchase narcotics at the designated address.

Officer Wesson knocked on the front door, and appellant, dressed in a housecoat and pajamas, came to the door. After Officer Wesson identified himself and stated he had a search warrant, appellant rushed to the rear of the house, without opening the front door. Officers at the back door forced their way into the residence, and let Officer Wesson inside. Besides appellant, Larry Farmer was inside the house.

There were two bedrooms in the house. One contained men’s clothing, and the other had only women’s clothing inside. In this latter bedroom, the officers found five bags of cocaine, twenty-seven Tylenol # 3 codeine tablets, and five liquid ampules of Taiwan. A South Central Bell telephone bill in appellant’s name, for 956 53rd Street North, was found on the kitchen table. Before appellant was taken to jail, she went into the bedroom, where the contraband was found, to change clothes.

First, appellant alleges the trial court erred by not allowing a defense witness to take the witness stand, because she was going to claim her Fifth Amendment privilege against self-incrimination. Appellant attempted to call Debra McBride, appellant’s sister, to testify. The trial court would not allow appellant to call the witness if she was going to claim her testimonial privilege.

A witness may not claim his testimonial privilege before taking the witness stand. The privilege may only be invoked on the witness stand, in response to a question that would call for an incriminating response. McCormick on Evidence, § 136 (2d ed. 1977). For a witness, the testimonial privilege is merely an option of refusal to testify, not a prohibition of inquiry. 8 Wigmore, Evidence, § 2268 (McNaughton rev. 1961). In the present case, the trial court prematurely allowed the witness to invoke her Fifth Amendment privilege.

To successfully claim reversible error in this situation, defense counsel must have made some offer of proof or a sufficient statement of the evidence that he anticipated to elicit from this witness. 23 C.J.S. Criminal Law § 1029 (1961). The statement must suggest what the evidence anticipated would be, and how it is both relevant and material. Woods v. State, 18 Ala.App. 123, 90 So. 52 (1921); United States v. Wells, 525 F.2d 974 (5th Cir.1976).

The record indicates that appellant’s counsel informed the trial judge that Debra McBride had told him that she was involved with the drugs that were seized. Absent any other showing of some anticipated substantive testimony that would not be self-incriminating, but still relevant and material, this court cannot review the trial judge’s exclusion. Gwin v. State, 425 So.2d 500, 509 (Ala.Crim.App.1982). Any self-incriminating statements that defense counsel might have attempted to elicit from Debra McBride would have properly been excluded; therefore, defense counsel should have stated what other admissible testimony could have been elicited from Debra McBride, in some form of an offer of proof.

Appellant next contends that appellant was improperly sentenced, because of a separate charge and sentence for possession predicated on different types of drugs seized. Appellant cites Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), aff’d, 426 So.2d 882 (Ala.1982), cert. denied, — U.S. —, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), raising the double jeopardy standard that prohibits splitting a single criminal act to justify multiple prosecutions for identical criminal behavior.

Close examination of the record indicates that there was only one sentence in this case, and the action of the trial court met the requirements of Vogel, supra; therefore, there are no double jeopardy issues present.

Appellant also argues that the State failed to prove that appellant had dominion or control of the controlled substances and marijuana.

A careful examination of the record indicates that appellant responded to the police officer’s knock at the front door, and when informed that the police had a search warrant, she quickly moved to the rear of the house, saying, “It’s the police.”

After forcibly gaining entry to the house, officers discovered the contraband in the bedroom.. Before being taken into custody, appellant changed clothes, and she wore clothing that was located in a closet in the bedroom where the contraband was discovered. Officers also found the telephone bill for 956 53rd Street North in appellant’s name. All of this evidence connects appellant to the contraband.

Where, as in this case, actual possession of the contraband is not shown, and constructive possession is relied upon, the State must show beyond a reasonable doubt, in addition to constructive possession, that the accused knew of the presence of the contraband. Temple v. State, 366 So.2d 740 (Ala.Crim.App.1978); Yarbrough v. State, 405 So.2d 721 (Ala.Crim.App.1981); Ruefferi v. State, 46 Ala.App. 36, 39, 237 So.2d 520, 523 (Ala.Crim.App.1970). Where the accused is not in exclusive possession, this knowledge may not be inferred without other evidence that connects defendant to the contraband.

While physical proximity to the contraband is relevant, this evidence alone does not “add the necessary connection” between appellant and the contraband to show that appellant had knowledge of the presence of controlled substances. Temple, supra, at 743. But evidence of substantial control over the premises, such as the phone bill in appellant's name, along with both verbal admissions and appellant’s conduct when she met the police officers at the door, will sufficiently connect appellant with the contraband to show constructive possession.

The circumstances as a whole were sufficient to convince a jury that appellant was more than just a mere visitor on the premises, and that she, either singly, or jointly with the other occupant, had constructive possession of the contraband. Sturdivant v. State, 439 So.2d 184, 186 (Ala.Crim.App.1983).

We have reviewed the issues in this case as presented by appellant. In addition, we have searched the record for any error injuriously affecting appellant’s substantial rights, and have found none. The judgment of conviction is due to be, and is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Eddie PEOPLES v. STATE.
    7 Div. 280.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    John T. Wildsmith, Jr., Childersburg, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Eddie Peoples pled guilty to burglary in the third degree. Alabama Code 1975, § 13A-7-7. He was sentenced as an habitual offender to thirty years’ imprisonment. Two issues are raised on appeal.

I

The main argument advanced on appeal concerns the allegation that, in sentencing, the trial judge considered case action summary sheets of two prior convictions which did not clearly and precisely identify Peoples.

At the sentencing hearing, the State introduced proof of six prior felony convictions. Even excluding the two convictions that Peoples argues should not have been considered, there remain four convictions which in and of themselves warrant and authorize a sentence of 15 to 99 years under the Habitual Felony Offender Act. Alabama Code 1975, § 13A-5-9(c)(l). “[A]ny error in proving prior convictions in excess of the number needed to invoke the Habitual Offender Act is error without injury, where the evidence of the unneeded prior convictions did not prejudice the defendant.” Smith v. State, 401 So.2d 251, 256-57 (Ala.Cr.App.), cert. denied, Ex parte Smith, 401 So.2d 257 (Ala.1981). In this case, the trial judge specifically inquired if the range of punishment would be affected if only four instead of six convictions were proven.

Furthermore, we find that the two objected to convictions were properly admitted into evidence and considered by the judge in sentencing. Peoples finds the two convictions objectionable because both case action summary sheets describe the subject as “Charles Grover Peoples, alias Eddie Gene Peoples”, and on both sheets the blocks marked “Black” and “White” are both marked.

Peoples accepts the name of Eddie Gene but denies that he has ever used “Charles Grover Peoples” as an alias. He stated that Charles Grover was his brother who had been dead since 1972. The convictions are dated 1977 and 1979. At the sentencing hearing, Peoples gave his date of birth as November 25, 1942 — the same date as that of “Charles Grover Peoples” on the case action summary sheets. As noted above, both summary sheets list the alias Eddie Gene Peoples, a name the defendant admits using.

“The identity of the name raised a prima facie presumption of the sameness of the person.” Murphy v. State, 399 So.2d 340, 346 (Ala.Cr.App.), cert. denied, Ex parte Murphy, 399 So.2d 347 (Ala.1981); McCord v. State, 373 So.2d 1242, 1244 (Ala.Cr.App. 1979); Williams v. State, 364 So.2d 717, 719 (Ala.Cr.App.1978). Here, the identity of names and birthdates plus the brother’s death before the date of the two convictions raises a presumption that the “Charles Grover Peoples alias Eddie Gene Peoples” of the case action summary sheets is the defendant.

Our review of the copies of the case action summary sheets convinces us that the blocks marked “Black” were apparently inadvertently marked and then scratched out with a plain and distinct “x” then being placed in the boxes marked “White”.

We find no error in the admission of the prior convictions.

II

Peoples’ argument that there was an implied promise that he would receive a minimum sentence is not supported by the record. This is admitted by appellate counsel.

The record does show that Peoples made an “open plea” without any recommendations regarding the sentence. It is clear from this record that the State never promised Peoples anything.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Anthony WILBOURN v. STATE.
    8 Div. 110.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.

      Norman Bradley, Jr., of Calloway and Bradley, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

Appellant was indicted by the Grand Jury of Madison County, Alabama, for the offense of escape, third degree, in violation of § 13A-10-33, Code of Alabama (1975). Appellant was tried before a jury, which returned a verdict finding appellant guilty of escape, third degree. Following a sentencing hearing, during which the prosecution sought to invoke the Habitual Felony Offender Act, § 13A-5-9(c)(l), Code of Alabama (1975), appellant was sentenced to forty-five (45) years’ imprisonment in the State penitentiary by the court.

On July 15,1983, appellant, in custody on an unrelated charge, was brought by Madison County deputies, to a courtroom on the order of a district court judge. Appellant was taken to a holding room, adjacent to the courtroom, which was used to keep inmates awaiting appearance before the judge. The holding room had an adjoining restroom, which was checked by a bailiff before the inmates were placed in the holding room. One of the ceiling tiles in the restroom did not fit properly, and was raised approximately one inch above the rest of the ceiling.

Shortly after the inmates were placed in the holding room, a loud noise, like a “firecracker” or a “wall falling down,” was heard in the restroom. Within one to three seconds later, Deputy Danny Certain reached the locked restroom door. Appellant unlocked the door and walked out, explaining to the deputies that he was trying to fix the sink. The sink had been knocked off the wall, striking the floor, and the pipes, leading to and from the sink, were broken away. Water was running onto the restroom floor from the broken pipes.

Footprints, resembling those made by tennis shoes, were found on the commode and the sink. Appellant was wearing tennis shoes at the time. The improperly-fitted ceiling tile had been pushed upward four to six inches so that one could see into the attic space above the ceiling tile.

Appellant first alleges that the indictment was insufficient to support the conviction of the offense of escape, third degree. Appellant asserts that the failure of the indictment to allege a lawful arrest, conviction, or court order, which are elements of the offense charged, caused that indictment to be insufficient to support the conviction. We must disagree.

The failure of the indictment to allege “lawful custody” is not a fatal defect. Pinkard v. State, 405 So.2d 411 (Ala.Crim.App.1981). This court addressed the due process requirements for a sufficient indictment in Black v. State, 401 So.2d 320 (Ala.Crim.App.1981), by referring to Summers v. State, 348 So.2d 1126 (Ala.Crim.App.), cert. denied, 348 So.2d 1136 (Ala.), cert. denied, 435 U.S. 981, 98 S.Ct. 1633, 56 L.Ed.2d 75 (1977):

“ ‘An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation least the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.’
“Based on these guidelines, which also embody our preference for substance over form in our modern pleading, we find that this indictment was clearly sufficient to apprise the appellant of the charge against him and to safeguard against double jeopardy and improper judgments.”

The indictment alleging that appellant “did escape or attempt to escape from Deputy Danny Certain of the Madison County Sheriff’s Department” was sufficient to support appellant’s conviction.

Appellant next alleges that the circumstantial evidence produced by the prosecution did not exclude to a moral certainty every other reasonable hypothesis but that of guilt of the appellant, and the verdict finding appellant guilty was contrary to the weight of the evidence. While it is true that a great portion of the prosecution’s case consisted of circumstantial evidence, in reviewing a conviction based on circumstantial evidence, this court will view the evidence in the light most favorable to the State. Favors v. State, 437 So.2d 1358 (Ala.Crim.App.), aff’d, 437 So.2d 1370 (Ala.1983).

The proper test to be applied is “whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” Dolvin v. State, 391 So.2d 133 (Ala.1980), quoting Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.), cert. denied, 368 So.2d 877 (Ala.1978).

Based on the evidence presented at trial, it is apparent that, by inference, the jury could find appellant guilty. Where there is legal evidence from which the jury can by fair inference find a defendant guilty, this court has no right to disturb the verdict. Johnson v. State, 378 So.2d 1164 (Ala.Crim.App.), writ quashed, 378 So.2d 1173 (Ala.1979). Bell v. State, 339 So.2d 96 (Ala.Crim.App.1976). A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust. Johnson, supra; Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969); Morton v. State, 338 So.2d 423 (Ala.Crim.App.1976).

The evidence presented at trial was sufficient to make it clear that the verdict was not palpably wrong and unjust. Contrary to appellant’s argument, there is no requirement that there be direct evidence that appellant had a realistic chance of effecting an escape from the restroom or that any person harbored any illusions that appellant made a serious attempt to escape.

Further, appellant’s allegation that his motion for a new trial on these grounds should have been granted is without merit. “Where the evidence presents questions of fact for the jury, and such evidence, if believed, is sufficient to sustain a conviction, ... the overruling of a motion for new trial [does] not constitute error.” Duncan v. State, 436 So.2d 883, 904 (Ala.Crim.App.1983).

Appellant further contends that the trial court committed reversible error in failing to give his requested jury charges numbered three and ten. Requested charge number three stated: “Circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence.” Requested charge number ten stated: “If the jury can reconcile the evidence before it with any reasonable hypothesis consistent with the innocence of the accused, it is your duty to do so and find the defendant not guilty.”

This issue is governed by § 12-16-13, Alabama Code 1975, which states in part:

“The refusal of a charge, though a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of parties.”

The record indicates that the trial court’s charge to the jury included the following charges on circumstantial evidence requested by appellant:

“Requested Jury Charge No. 2
“Circumstantial evidence is not sufficient to support a conviction if it does not exclude to a moral certainty every other reasonable hypothesis but that of guilt of the accused.”
“Requested Jury Charge No. 9
“I charge you that when a ease rests on circumstantial evidence the circumstances arrayed against the defendant must form so complete and strong a chain as to exclude beyond a reasonable doubt every hypothesis except that of guilt.”

There was no error in the trial court’s refusal to give requested charges numbered three and ten, since the above charges two and nine adequately and substantially covered the same rule of law. Allred v. State, 390 So.2d 1109 (Ala.Crim.App.), cert. denied, 390 So.2d 1114 (Ala.1980).

Appellant’s final argument is that the sentence of 45 years imposed by the trial court constituted cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution and Article I, § 15, of the Alabama Constitution of 1901. Appellant submits that the sentence imposed pursuant to the Habitual Felony Offender Act is disproportionate to the offense for which he was convicted, and utilizing the logic of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), says that the sentence constitutes cruel and unusual punishment.

Examination of the record reveals that appellant had previously been convicted of six (6) felonies:

“1 In the case of the State of Alabama vs. Marvin Anthony Wilbourn, Circuit Court of Madison County, Alabama, Case No. 76-3-257F, the defendant was adjudged guilty of the offense of Grand Larceny, and Buying, Receiving, Concealing Stolen Property.
“2 In the case of the State of Alabama vs. Tony Wilbourn, Circuit Court of Madison County, Alabama, Case No. CC79-473FS the defendant was adjudged guilty of the offense of Burglary; Grand Larceny; and Buying, Receiving, Concealing Stolen Property.
“3 In the case of the State of Alabama vs. Marvin Anthony Wilbourn, Circuit Court of Madison County, Case No. CC79-471FS, the defendant was adjudged guilty of the offense of Burglary; Grand Larceny; and Buying, Receiving, Concealing Stolen Property.
“4 In the case of the State of Alabama vs. Tony Wilbourn, Circuit Court of Madison County, Alabama, Case No. CC79-455FS, the defendant was adjudged guilty of the offense of Buying, Receiving, Concealing Stolen Property.
“5 In the case of the State of Alabama vs. Tony Wilbourn, Circuit Court of Madison County, Alabama, Case No. CC79-454FS, the defendant was adjudged guilty of the offense of Buying, Receiving, Concealing Stolen Property.
“6 In the case of the State of Alabama vs. Marvin Anthony Wilbourn, Circuit Court of Madison County, Alabama, Case No. CC77-972F, the defendant was adjudged guilty of the offense of Leaving the Scene of an Accident.”

Appellant was given due notice of the State’s intention to proceed under the Habitual Felony Offender Act, and a full hearing was conducted by the trial court before the sentence was imposed.

This court has repeatedly upheld the constitutionality of the Act, and continues to do so with this appeal. Dutton v. State, 434 So.2d 853 (Ala.Crim.App.1983); Jackson v. State, 440 So.2d 1181 (Ala.Crim.App.1983); Williams v. State, 456 So.2d 852 (Ala.Crim.App.1984). Sentencing under this Act does not constitute cruel and unusual punishment. Watson v. State, 392 So.2d 1274 (Ala.Crim.App.), cert. denied, 392 So.2d 1280 (Ala.1980); Seritt v. State, 401 So.2d 248 (Ala.Crim.App.), cert. denied, 401'So.2d 251 (Ala.1981).

Rather than rely upon the logic of Solem v. Helm, supra, in which the defendant was sentenced to life imprisonment without parole, the more applicable logic is found in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), in which the defendant was eligible for parole in twelve years. Further, Seritt v. Alabama, 731 F.2d 728, 732 (11th Cir.1984), stated that Solem, supra, raised an extremely narrow issue of whether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony. Seritt v. State, supra, also concluded that “the Alabama Habitual Felony Offenders Act meets the objective criteria articulated, as a guide, by the Court in Solem v. Helm. 731 F.2d, at 737.

Solem, supra, therefore, furnishes no authority for this court to disturb appellant’s sentence. As long as the sentence imposed by the trial court is within statutory boundaries, this court will not overturn that decision absent clear abuse. Williams, supra, Tombrello v. State, 421 So.2d 1319 (Ala.Crim.App.1982).

After a thorough examination of the record, in light of the foregoing principles of law, this court finds no error injuriously affecting appellant’s substantive rights. The judgment, including the sentence of the Madison Circuit Court, is due to be, and it is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice. OVERTON, J.,

text:
    DEPARTMENT OF REVENUE, Appellant/Cross Appellee, v. LINEAS AEREAS COSTARRICENSES, et al. Appellees/Cross Appellants.
    No. 63989.
    Supreme Court of Florida.
    June 14, 1984.
    Rehearing Denied Sept. 12, 1984.
    Jim Smith, Atty. Gen. and Joseph C. Mel-lichamp, III, Asst. Atty. Gen. and Larry Levy, General Counsel and Stephen J. Keller and Jane Mostoller, Asst. General Counsels, Dept, of Revenue, Tallahassee, for appellant/cross appellee.
    David A. Nelson, Cleveland, Ohio, and N. Fraser Schuh, III of Squire, Sanders & Dempsey, Miami, for appellees/cross appellants.
    James E. Tribble, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Intern. Air Transport Ass’n, amicus curiae.
   ADKINS, Justice.

We have before us an appeal here by an order from the First District Court of Appeal certifying the issue in the case to be of great public importance. We have jurisdiction pursuant to article V, section 3(b)(5), Florida Constitution.

This case arose when Lineas Aereas Cos-tarricenses (hereinafter LACSA) filed a complaint in circuit court in Leon County seeking to enjoin Florida’s Department of Revenue from collecting sales taxes, under a provision of chapter 83-3, Laws of Florida, on aviation fuel purchased by LACSA for use in foreign commerce. Transportes Aereos Nacionales, S.A., Aerolíneas Argen-tinas, Aeronaves de Mexico, S.A., Aerovías Nacionales de Columbia, S.A., Trinidad and Tobago (BWIA International) Airways Corp., Empresa Ecuatoriana de Aviación, S.A., Linea Aerea Nacional Chile, Compa-ñía Mexicana de Aviación, S.A. de C.V., Viacao Aerea Rio-Grandense, and Venzola-na Internacional de Aviación, S.A. were granted leave to intervene as party plaintiffs.

The circuit court entered an order of final judgment upholding the tax as constitutional but granting the injunction on the basis that the foreign airlines were exempt under certain international agreements. The Department of Revenue is appealing the exemption and LACSA is cross-appealing the determination that the tax is constitutional.

Inasmuch as the issues raised here have been addressed by us in Delta Air Lines, Inc. v. Department of Revenue, 455 So.2d 317 (Fla.1984); Department of Revenue v. Wardair Canada Ltd., 455 So.2d 326 (Fla.1984); and Department of Revenue v. Air Jamaica Ltd., 455 So.2d 324 (Fla.1984), they will not be readdressed.

Accordingly, we affirm the circuit court’s order to the extent that it upheld the tax as constitutional with the exception of the portion regarding the corporate tax credit to Florida-based airlines. In Delta we determined that portion to be unconstitutional and ordered it stricken from chapter 83-3. We reverse the circuit court’s order to the extent that it recognized an exemption from the excise tax for the foreign airlines.

It is so ordered.

ALDERMAN, C.J., and BOYD and SHAW, JJ., concur.

OVERTON, J.,

dissenting: I dissent. See Department of Revenue v. Wardair Canada Ltd. [455 So.2d 326], (Fla.1984).

McDONALD, J., dissents.


author: ADKINS, Justice.

text:
    NORTHEASTERN INTERNATIONAL AIRWAYS, INC., et al., Appellants, v. DEPARTMENT OF REVENUE, Appellee.
    No. 64085.
    Supreme Court of Florida.
    June 14, 1984.
    Rehearing Denied Sept. 12, 1984.
    Thomas F. Luken, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen. and Joseph C. Mel-lichamp, III, Asst. Atty. Gen., and Larry Levy, General Counsel and Jane Mostoller, Asst. General Counsel, Dept, of Revenue, Tallahassee, Fla., for appellee.
   ADKINS, Justice.

We have before us an appeal which results from an order by the Fourth District Court of Appeal certifying the issues involved to be of great public importance. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.

The case arose with the filing of a complaint in circuit court in Broward County. Northeastern International Airways, Inc., and Arrow Air, Inc., challenged the constitutionality of chapter 83-3, Laws of Florida. The circuit court entered an order of final judgment upholding the constitutionality of chapter 83-3. The plaintiffs challenged the constitutionality of chapter 83-3 but did not argue for exemption on the basis of international agreements entered into by the United States. The circuit court granted a motion for summary judgment against the plaintiffs thereby upholding the constitutionality of the law.

We have dealt with the issues raised here in our decisions in Eastern Air Lines, Inc. v. Department of Revenue, 455 So.2d 311 (Fla.1984); Delta Air Lines, Inc. v. Department of Revenue, 455 So.2d 317 (Fla.1984); Department of Revenue v. Wardair Canada Ltd., 455 So.2d 326, No. 64,-036 (Fla. June 14, 1984); and Department of Revenue v. Air Jamaica Ltd., 455 So.2d 324, No. 64,035 (Fla. June 14, 1984).

Accordingly we affirm in part and reverse in part the order of the circuit court. We determined in Delta that the portion of chapter 83-3 which provided a tax credit to Florida-based airlines was unconstitutional. We also determined that it was severable and that it was stricken from the law. The remainder of the order is affirmed.

It is so ordered.

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

McDONALD, J., dissents.


author: OVERTON, Justice.

text:
    Joseph T. LANCE, et al., Petitioners, v. Charles H. WADE, et al., Respondents.
    No. 63242.
    Supreme Court of Florida.
    Aug. 30, 1984.
    Rehearing Denied Nov. 15, 1984.

      Karl Beckmeyer, Tavernier, for petitioners.
    Jay M. Levy of Hershoff & Levy, and George M. Nachwalter, Miami, for respondents.
   OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal reported as Lance v. Wade, 424 So.2d 161 (Fla. 3d DCA 1983), in which the district court held that a class action could be brought on the ground of fraud. We find direct conflict with Avila South Condominium Association, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), and Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we quash the decision of the district court. In so doing, we reaffirm our previous decisions in which we held that fraud on individual contracts could not be a basis for a class action. We also find that the respondents have available suitable remedies in the form of individual actions for breach of contract, cancellation and rescission, or specific performance. Accordingly, we remand without prejudice to the respondents’ right to institute these types of actions.

The relevant facts reflect that respondents Wade and Herringer were two of approximately 350 purchasers of mobile home lots in Cross Key Waterways in Monroe County. These two lot owners filed a class action against the seller of the lots, Cross Key Waterways, Inc., and its president, Joseph T. Lance, alleging that they had relied to their detriment upon fraudulent representations by the seller contained in the public offering statement, advertising brochures, and contracts for deed, and upon fraudulent representations by the seller’s employees. The alleged statements and representations involved assertions that access from the lots to a nearby highway would be provided by means of paved roads constructed in accordance with the specifications of the Monroe County engineer. It was alleged that petitioners knew or should have known that these statements concerning the construction of roads were false and that petitioners had no intention of paving these streets. Further, respondents alleged that the purchasing parties would not have purchased lots in Cross Key had they known of the misrepresentation. Respondents specifically alleged that the “individual Plaintiffs, as representatives of the class, did in fact rely upon the representations” and that the “representation concerning paved roads and streets was a material representation which was relied upon by the Plaintiffs both individually and as representatives of the class.” The primary alleged misrepresentation was contained in a public offering statement which provided, in part, as follows:

Improvements will include installation of a water line in front of each lot, construction of a graded, rolled, water-bonded, oiled and sanded road, an elevation of four feet at the crown of the road, in accordance with county engineering requirements. All improvements will commence with Section One, next Section Three will be improved and lastly Section Two, although the latter two sections may be developed simultaneously if circumstances so dictate. The roads will be installed at the time the lots are filled and graded. Section One will be completed on or before March 31, 1971, Section Three on or before December 31, 1971 and Section Two on or before August 31, 1972. Roads will be maintained by subdivider until maintenance is taken over by the Cross Key Waterways Property Owners Association, Inc.

The evidence reflects that some purchasers did not receive this public offering statement until after they had purchased a lot.

Respondents also asserted that another misrepresentation, allegedly relied upon by some of the owners, was contained in an advertising flyer which stated: “Roads are dedicated and graded to county specifications. They are provided by the subdivider and maintained by the county.” Again, the record indicates that some purchasers did not receive this flyer.

The trial court permitted the action to proceed as a class action based on fraud. Following a jury trial, verdicts were returned in the amount of $200,000 compensatory damages and $300,000 punitive damages against the corporate defendant, Cross Key Waterways, Inc.; and $50,000 compensatory damages and $60,000 punitive damages against its president, Lance.

On appeal, the principal issue was whether the trial court had erred in submitting this cause to the jury as a class action sounding in fraud. The Third District Court of Appeal affirmed, interpreting our decision in Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976), as having limited our decision in Osceola Groves. The district court stated that since the three-pronged test established in Frankel had been met, in that the plaintiff class was engaged in a cooperative enterprise, had a joint pecuniary interest, and did not have a choice of remedies which were possibly subject to separate and distinct defenses, the suit was properly submitted as a class action. 424 So.2d at 161. We disagree. The district court has misinterpreted our Frankel decision. We did not, as the district court contends, retreat in that decision from the prohibition of fraud class actions based on separate contracts which was established in Osceola Groves and reaffirmed in Avila. In fact, the complaint in Frankel did not allege fraud. The issue was whether the fraud class action rule adopted in Osceola Groves should be given general application “to class actions wherein fraud has not been alleged.” 340 So.2d at 468.

Our decision in Osceola Groves dealt with a situation similar to that presented in the instant case. There, purchasers of individual units of land sought, by class action, damages for the seller’s fraudulent misrepresentations. In determining that the purchasers had failed to state a cause of action, we noted that

each of the alleged numerous purchasers of units of land acquired his interest under separate contracts with the defendant and it does not appear that in these contracts was any provision showing a cooperative enterprise or any showing that any purchaser had a pecuniary interest in any development of lands other than those covered by his own contract.

78 So.2d at 702.

In Avila, which was decided subsequent to Frankel, we reaffirmed Osceola Groves and stated that

fraud claims on separate contracts are inherently diverse, as a matter of law, because “the demands of the various defrauded parties are not only legally distinct, but each depends upon its own facts ... [and] a choice of remedies is ordinarily presented.” 78 So.2d at 702 (citing Note, 1938, 114 A.L.R. 1015, 1019).

347 So.2d at 609.

In Frankel this Court dealt with an entirely different issue and factual situation. Frankel involved a class action, brought on behalf of city water consumers, which challenged the effective date of a city ordinance which increased the water rate. In Frankel we were not concerned with a fraud class action based on separate contracts and we did not expressly or inferentially recede from the prohibition against such actions. The distinction between Frankel and Osceola Groves is clear. Where, as in Osceola Groves and the present case, fraud based on separate contracts is alleged, the Frankel test is irrelevant. The elements for actionable fraud are (1) a false statement concerning a material fact; (2) knowledge by the person making the statement that the representation is false; (3) the intent by the person making the statement that the representation will induce another to act on it; and (4) reliance on the representation to the injury of the other party. In summary, there must be an intentional material misrepresentation upon which the other party relies to his detriment. In a situation such as this, involving multiple contractual sales, each of the parties has his own separate and distinct contract and must make a determination as to which terms are important to him. What one purchaser may rely upon in entering into a contract may not be material to another purchaser. Illustrative of this fact is that, in the instant case, some of the members of the class did not receive the public offering statement prior to their purchase of a lot. These purchasers could not, therefore, have relied upon the asserted fraudulent representation contained in the public offering statement.

We recognize that there has been some criticism of the limitation placed on class actions by our Osceola Groves decision. See, e.g., Avilla, 347 So.2d at 610 (England, J., dissenting); Arnold, Class Actions in Florida—A New Look, 31 U.Fla. L.Rev. 551 (1979). Nevertheless, we adhere to the view that “fraud claims on separate contracts are inherently diverse,” Avila, 347 So.2d at 609, and, as a result, we reaffirm the prohibition against fraud class actions based on separate contracts.

We find that the members of this class, having apparently relied on this cause of action, should be entitled to proceed individually without prejudice against the sellers for breach of contract, fraud, specific performance, or rescission. Given the circumstances of this action, we find that the purchasers should not be subject to the defenses of the statute of limitations or laches, providing that their actions are commenced within a reasonable time after the remand of this decision.

For the reasons expressed, we quash the decision of the district court.

It is so ordered.

BOYD, C.J., and ADKINS, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.

      . It should be noted that, if the respondents institute individual suits, the suits may, if appropriate, be consolidated under Florida Rule of Civil Procedure 1.270.

      . Florida Rule of Civil Procedure 1.220, which concerns class actions, was amended in 1980 to bring it in line with modern practice. The current class action rule is based on the federal class action rule, Federal Rule of Civil Procedure 23. See In re Rules of Civil Procedure, 391 So.2d 165 (Fla.1980). This amendment did not affect the validity of the holdings in Osceola or Avila.


author: PER CURIAM. OVERTON, Justice,

text:
    Johnny COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 57788.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Nov. 15, 1984.

      Clifford L. Davis, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Johnny Copeland appeals his convictions for first-degree murder, kidnapping, robbery, and sexual battery. For the capital felony of first-degree murder the judge sentenced appellant to death, thus vesting this Court with jurisdiction of the appeal. Art. V, § 3(b)(1), Fla. Const. The trial court imposed separate sentences of life imprisonment for each of the other three crimes.

The evidence at trial showed that during the night of Tuesday, December 12, 1978, Sheila Porter, who was nineteen years of age, disappeared from her job as cashier at the Junior Food Store in Medart, in Wakul-la County. At shortly after eleven o’clock that night, the store was found to be unattended and unlocked. Money was missing from the cash register. Shortly before Sheila Porter’s disappearance was discovered, several witnesses who had been at the store saw a large white car — identified by one of them as a nine- or ten-year-old Chrysler Newport — with two or three black men inside parked in front of the store.

On Wednesday, December 13, an informant, having heard on television of the possible abduction and a description of the car, told police that he had seen such a car in the possession of Frank Smith, that appellant Johnny Copeland was with Smith, and that later that day he had seen the car again but it had been painted black. This informant was one of the state’s witnesses at trial. In response to this information, an investigator from the Wakulla County Sheriff’s Office contacted Smith and appellant and asked them to accompany him to his headquarters. The investigator who conducted the interviews testified at the trial. In his first statement appellant denied any participation in the crime, stated that he had spent the previous evening visiting family members, and denied helping Smith paint his car black. Later he admitted that he had helped paint the car black. After being at the sheriff’s office for more than nine hours, appellant was released early in the morning of Thursday, December 14.

After receiving further information linking Frank Smith’s car to the scene of the suspected abduction, sheriff’s deputies arrested appellant at 4:00 a.m. on Friday, December 15. In the interrogation that followed, he said that he had given in to Frank Smith’s demand that he help him with a robbery. He said that Smith came to his home, that he went with Smith in Smith’s car, and that along the way they picked up Victor Hall and another man whom appellant did not know and could not identify because he wore a mask. Appellant said that they drove to the convenience store in Medart and that he went in and performed the robbery by threatening the girl with a knife. They abducted the girl and returned to appellant’s house where he got his own car. Then, appellant’s statement continued, they went to a motel just outside Tallahassee where Smith, Hall, and the masked man raped the girl. Then, taking appellant’s car, Smith, Hall, and appellant took the victim to a wooded area outside Tallahassee where Smith shot her.

Appellant took investigating officers to the vicinity of the murder. As they tried to locate the body, appellant said that it was Smith and the masked man who took the victim from the car into the woods. After having been shown the general vicinity of the murder by both appellant and Smith independently, the police located Sheila Porter’s body by aerial search on Friday, December 15. A pathologist examined the body and determined that the victim had been shot three times in the head. The genital area of the body had been bruised. The bullets removed from the body were determined to be .25 caliber bullets. Three shell casings were found near the body and were determined to be Federal brand .25 caliber semi-automatic pistol ammunition.

Police investigators interviewed appellant again on the day following the discovery of the body. This time appellant said that there had been no masked man, but that the remainder of his previous statement was true. In a later statement appellant again changed his story, saying that he had used a pistol, not a knife, when he committed the robbery.

In addition to the testimony of an investigating officer, repeating what appellant said in his series of statements, the state also presented a substantial amount of corroborating evidence. Appellant’s uncle testified that on the Saturday before the crimes he returned to appellant a pistol which appellant had given him as security for a loan. At that time appellant discharged the gun in his uncle’s yard. Later investigating officers searched the area where the gun was fired and recovered a spent shell. A firearms expert testified that this shell was fired from the same gun as the shells found near the victim’s body.

A fingerprint specialist found appellant’s prints inside the motel room where Sheila Porter was raped. The expert also found a print from the victim on an aluminum can found under the seat of appellant’s car. A fiber analyst testified that fibers matching those of the victim’s clothes were found in Frank Smith’s car.

The victim’s body was examined not only by a pathologist but also by a serologist. The serologist testified that an examination of substances found in the vaginal area and on the underpants of the victim revealed the presence of semen in amounts indicating that sexual intercourse had occurred shortly before the victim’s death. There was also testimony from a witness who testified that he visited appellant in jail and that appellant admitted that he participated in the multiple rape but denied that he killed the girl.

Having reviewed the record of the evidence establishing the above-recited facts, we find that the verdicts of guilt for robbery, kidnapping, rape, and first-degree murder are supported by competent, substantial evidence.

In his appeal, appellant raises questions concerning the constitutionality of the death penalty statute, the proper place of venue, the selection of jurors, the admission of his incriminating statements, a reference to unrelated criminal conduct, and the imposition of his sentences. We find that appellant has failed to establish any reversible error affecting his convictions. However, we do find that the trial court erred in imposing separate sentences for all three non-capital felonies in addition to the death sentence for the capital felony. Under the evidence, the first-degree murder rests on the felony murder theory. Therefore there can be no separate sentence for the underlying felony. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Appellant argues that the death penalty statute is unconstitutional on the grounds that this Court does not review all first-degree murder cases, that the death penalty is cruel and unusual punishment, and that the capital felony sentencing law, as applied, denies equal protection to black defendants accused of killing white persons. All of these arguments have previously been considered and decided adversely to appellant’s position. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

Appellant argues that the exclusion from jury service on his case of all veniremen whose views on capital punishment were such as to preclude them from assuming the duties of a juror in a capital case as such eases are prosecuted under Florida law deprived him of the right to be tried by a jury representative of the community. This argument too has already been considered and rejected in previous decisions of this Court. See Gafford v. State, 387 So.2d 333 (Fla.1980); Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980); Riley v. State, 366 So.2d 19 (Fla.1978).

Before trial appellant filed an election of venue seeking to be tried in Leon County. He now argues that the trial court erred in denying his request. However, because the robbery and kidnapping occurred in Wakulla County and the rape, continued kidnapping, and murder occurred in Leon County, the cause could have been prosecuted in either county. § 910.05, Fla. Stat. (1977); Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Crit-tendon v. State, 338 So.2d 1088 (Fla. 1st DCA 1976).

Appellant also argues that venue should have been changed because of prejudicial pretrial publicity. Appellant filed a motion for change of venue prior to the commencement of the jury selection process and renewed the motion both after jury selection and at the close of the state’s case. The trial judge denied the motion each time.

Appellant’s motion was based on a showing that there was widespread public knowledge of the crimes throughout Wakulla County. Public knowledge alone, however, is not the focus of the inquiry on a motion for change of venue based on pretrial publicity. The critical factor is the extent of the prejudice, or lack of impartiality among potential jurors, that may accompany the knowledge. It has long escaped strict definition:

Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.

United States v. Wood, 299 U.S. 123, 145-46, 57 S.Ct. 177, 185, 81 L.Ed. 78 (1936). The question of jury partiality is one of mixed law and fact, requiring an appellate court to independently evaluate the voir dire testimony of impaneled jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Reynolds v. United States, 8 Otto 145, 98 U.S. 145, 25 L.Ed. 244 (1878). The test for determining whether a change of venue is required was expressed in Kelley v. State, 212 So.2d 27, 28 (Fla. 2d DCA 1968), and adopted by this Court in McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977):

[WJhether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely upon the evidence presented in the courtroom.

In determining the extent of prejudice toward a defendant, one factor to consider is whether “it would be difficult for any individual to take an independent stand adverse to this strong community sentiment.” Manning v. State, 378 So.2d 274, 276 (Fla.1979). If it is possible to empanel a jury-comprising persons who can be relied upon to decide the case based upon the evidence, and not be influenced by knowledge gained from sources outside the courtroom, then a denial of change of venue is proper. See, e.g., Dobbert v. State, 328 So.2d 433 (Fla.1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 166 (1977).

In the present case, the transcript of the jury selection proceedings reveals that every member of the jury panel had read or heard something about the crime. However, they all said that they would be able to disregard the previously gained information and render a verdict based on the evidence presented in court. Although such assurances are not dispositive, they support the presumption of a juror’s impartiality. It is the defendant’s burden “to demonstrate ‘the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ ” Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975) (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961)).

In Murphy v. Florida, the United States Supreme Court said that a defendant might possibly raise a presumption of partiality by showing that the general atmosphere of the community is deeply hostile to him. Two ways to establish that such hostility exists are by showing that there was inflammatory publicity and by showing great difficulty in selecting a jury. Appellant here has failed to establish such hostility by either of these methods. As was the ease in Murphy, the pretrial publicity here was largely factual, rather than emotional, in nature and mainly occurred around the time of the crime and the investigation, several months before the trial. Also as in Murphy, here there was no great difficulty in selecting a jury. In Murphy the Supreme Court noted that (in contrast with Dowd where 268 of 430 veniremen were excused because they were inclined to believe the accused guilty) only “20 of the 78 persons questioned were excused because they indicated an opinion as to the petitioner’s guilt.” 421 U.S. at 803, 95 S.Ct. at 2037, 44 L.Ed.2d 589. Similarly, in the present case only seventeen of the seventy potential jurors questioned were excused for possible bias either because they were related to the victim or because they had formed an opinion as to the defendant’s guilt. The record shows that the trial judge was properly willing to excuse clearly prejudiced jurors for cause.

Appellant argues, however, that proof of a general atmosphere of hostility against him was established by testimony that the crimes were the main topic of conversation in the rural community of Wa-kulla County, citing Manning v. State, 378 So.2d 274 (Fla.1979). Although we said in Manning that the size of a community is a factor to be considered in determining the prejudicial impact of intense publicity, we did not hold that it is the only factor. Manning should not be extended to require a change of venue in every highly publicized criminal prosecution in a rural community. In this case there was not shown the degree of community hostility toward the defendant that existed in Manning. We therefore conclude that the trial judge did not abuse his discretion in denying the motion for change of venue. See Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022,102 S.Ct. 556, 70 L.Ed.2d 418 (1981); Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979).

Appellant’s next argument is that the trial court erred in denying his motion to suppress the statements he gave to law enforcement officers prior to arrest. Appellant argues that the statements were coerced, were made during an unlawful detention, and were made without benefit of legal counsel. The record shows, however, that appellant willingly accompanied law enforcement officers to the Wakulla County sheriff’s office to answer questions. After being advised of his constitutional rights with regard to the interview, appellant voluntarily made statements in response to the officers’ questions. The record indicates that there was no impropriety in the interrogation of appellant. We therefore conclude that the court correctly denied the motion to suppress.

Appellant argues that the trial court erred in denying his motion for mistrial made when a police witness mentioned appellant’s possible involvement in an unrelated robbery. The record shows that the comment in question was made by a state witness in response to a question asked on cross-examination by appellant’s own attorney. The comment arose out of a series of questions reported as follows:

Q I believe somewhere in the statement on the 15th, you testified that Johnny Copeland told you that Smith was mad at him for pimping on him or getting him in trouble.
A That’s correct.
Q All right, did you make any effort to verify whether or not that had occurred?
A That Mr. Copeland had told on Mr. Smith?
Q That’s correct.
A Did I make any effort to do that?
Q Yes, sir.
A I don’t understand what you mean, Mr. Davis.
Q Well, you just testified that you tried to verify portions of the statements or tried to run out facts and leads as they occurred to you, and when he told you that Smith was trying to set him up because he had pimped on him in the past, did you try to check that out?
A At the time that he made this particular statement, I was aware of the fact that Mr. Copeland, with Mr. Smith, had been in trouble before with basically the same type crime of robbery of another convenience store.

Record on Appeal, vol. XI, at 1718-19. The defense moved for a mistrial. The state responded that the comment had been elicited by defense counsel’s own question. Defense counsel argued that the answer was not responsive to the question, but the court ruled against him and denied the motion for mistrial. The trial court’s ruling was correct. The reported colloquy shows that the witness, in response to defense counsel’s question, was attempting to explain why Copeland may have believed that Smith was angry towards him. Since appellant’s counsel opened the door to the damaging but objectionable reference by asking the question, appellant may not now seek reversal on the basis of that error. McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981); Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979).

We now consider appellant’s objections to his sentences. His first argument is that he cannot be sentenced for both felony murder and the underlying felony. The indictment charged appellant with murder in the perpetration of felonious robbery and kidnapping. Either one of these two felonies, the commission of which were proven at trial, would support the conviction for first-degree murder. The felony relied upon to establish first-degree murder under the felony murder rule is a lesser included offense for purposes of section 775.021(4), Florida Statutes (1977), as construed in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). The other felony is not a lesser included offense of the murder. The sentence for one of the felonies must be vacated under Hegstrom, but the other may stand. Since the kidnapping was more closely connected to the murder in time, we conclude that the kidnapping was the underlying felony upon which the felony murder conviction was based. Therefore we vacate the separate sentence for the crime of kidnapping.

Appellant also raises several challenges to his sentence of death. He argues that the trial court erred in its application of the aggravating and mitigating circumstances. The judge found that appellant had previously been convicted of felonies involving violence; that the murder was committed in connection with kidnapping and rape; that the murder was committed for the purpose of avoiding prosecution for robbery, kidnapping, and rape; that the murder was committed for pecuniary gain; and that the murder was especially heinous, atrocious, and cruel. The judge found that only one factor constituted a mitigating circumstance, appellant’s age. The judge indicated that this factor was not entitled to much weight in light of the fact that appellant was mature enough to have served a term in state prison.

The circumstance of appellant having previously been convicted of felonies involving violence was supported by evidence of his previous convictions for armed robbery and was therefore properly considered. Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). The other four aggravating circumstances are also supported by evidence. However, these four factors are characteristics of the capital felony itself,' rather than of the defendant, and therefore require further justification in view of the fact that appellant’s liability rests upon the felony murder rule and not on evidence that he participated in premeditated murder.

The court found that the capital felony was committed in the course of committing the crimes of kidnapping and rape. Since the evidence shows that appellant was a principal in and fully participated in these crimes, this factor may be relied upon as an aggravating circumstance even though appellant’s conviction for the capital felony itself is based on the felony murder theory. The court found that the murder was committed to avoid prosecution for the crimes already committed, robbery, kidnapping, and rape. Stevens v. State, 419 So.2d 1058 (Fla.1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983). We hold that this aggravating circumstance also may be imputed to appellant even though his liability for the murder itself is vicarious. The trial court held that the murder was committed for pecuniary gain. The evidence shows that the murder was the culmination of a course of events that began when appellant went into a store, robbed the clerk at gunpoint, and abducted her from the store. Stevens v. State. Therefore we hold that this pecuniary-gain feature of the murder may be imputed to appellant even though his criminal liability for the murder itself rests on the felony murder theory. Finally, the trial court found that the capital felony was especially heinous, atrocious, or cruel. The validity of this aggravating factor rests not on the actual method of killing — the victim was shot three times in the head with a pistol — -but rather on the additional acts setting this crime apart from the norm of capital felonies. See State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Proof of such additional acts are provided by the evidence of the victim’s hours-long ordeal from the time she initially encountered appellant to the time of her eventual execution. E.g., Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Knight v. State, 338 So.2d 201 (Fla.1976). The evidence showed that appellant was an equal participant in the perpetration of these additional acts. Therefore this aggravating circumstance too may be applied to appellant even though his conviction for the capital felony itself is based on the felony murder rule.

Appellant argues that the capital felony sentencing law is unconstitutional because it allows a sentence of death without proof of intent to kill. In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court held in a felony murder case that a sentence of death may not constitutionally be imposed in the absence of proof that the defendant killed, attempted to kill, intended to kill, contemplated that life would be taken, or anticipated that lethal force would or might be used. Id. 102 S.Ct. at 3372, 3379. Although the evidence did not show that appellant shot the victim, his participation in the events leading up to the murder was substantial enough to support the conclusion that he contemplated that life would be taken or anticipated that lethal force would be used.

The trial judge found that the aggravating circumstances outweighed the single marginal mitigating consideration. The jury recommended a sentence of death. The aggravating circumstances found by the trial judge were all proper. With the case in this posture we conclude that the sentence of death is appropriate.

We affirm the convictions of first-degree murder, robbery, kidnapping, and sexual battery. The separate sentence for the crime of kidnapping is vacated. The sentence of death is affirmed.

It is so ordered.

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

OVERTON, J., dissents with an opinion, in which McDONALD, J., concurs.

OVERTON, Justice,

dissenting:

I must reluctantly dissent on the grounds that appellant was constitutionally entitled to a change of venue. This is clearly the type of hideous crime which not only justifies the imposition of the death penalty, but also understandably arouses strong emotions against an individual charged with committing the offense. Although the result reached by the majority would be appropriate if the trial had been conducted in another county, I find there must be a retrial because appellant was constitutionally entitled to a change of venue under the law established both by the United States Supreme Court, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), and by this Court in Manning v. State, 378 So.2d 274 (Fla.1979). There is no logical way to reconcile the majority opinion in this case and Manning.

Deciding a motion for a change of venue is often the most difficult decision a trial judge must make in a well-publicized case. As the majority recognized, public knowledge of the crime alone is not the problem; the critical factor is the extent of the prejudice, bias, and hostility that may accompany that knowledge. The majority also discussed the test for a change of venue found in McCaskill v. State, 344 So.2d 1276 (Fla.1977), and noted that, under Manning, one factor the trial court should consider in determining the extent of the prejudice toward a defendant is whether “it would be difficult for any individual to take an independent stand adverse to this strong community sentiment.” 378 So.2d at 276. It is not determinative that all jurors disavowed any bias or prejudice or that appellant did not use all his peremptory challenges. What is required is that the court determine whether the community’s knowledge of the ease and the bias against the defendant is such that it would be difficult, if not impossible, for a jury drawn from the community to disregard prior knowledge of the case and base its verdict exclusively on the evidence presented during trial. Every criminal defendant has the right to be tried by an impartial jury. This Court stated in Manning:

Every reasonable precaution should be taken to preserve to a defendant trial by such a jury and to this end if there is reasonable basis shown for a change of venue a motion therefor properly made should be granted.
A change of venue may sometimes inconvenience the State, yet we can see no way in which it can cause any real damage to it. On the other hand, granting a change of venue in a questionable case is certain to eliminate a possible error and eliminate a costly retrial if it be determined that the venue should have been changed.

378 So.2d at 277 (quoting from Singer v. State, 109 So.2d 7, 14 (Fla.1959)).

In my opinion, the appellant demonstrated a constitutional basis for a change of venue. The facts in this case are almost identical to the facts in Manning, where we found such a high degree of knowledge and hostility in a rural community that the failure to change venue was reversible error. The voir dire in the instant case showed that every jury panel member had prior knowledge of the crimes through the media or community discussion. As in Manning, the crimes in this case occurred in a community where the incident received substantially more attention and concern than if the same incident had occurred in a metropolitan area. Counsel for appellant presented unrefuted evidence of hostility in the community towards the appellant and his codefendants. The victim in this case was related to many residents of Wakulla County, and one prospective juror said that “it was impossible to stop and have coffee in this county for three or four weeks without hearing of it.” There was considerable pre-trial publicity, including the anticipated testimony of key witnesses and the disclosure of incriminating statements made by appellant and his codefendants. I also note that Copeland’s codefendant, Frank Smith, was granted a change of venue, tried in Jefferson County, and, after a mistrial, retried in Franklin County.

I cannot distinguish this case from Manning and find that the record clearly reflects sufficient hostility towards appellant and his codefendants to warrant a change of venue. The majority decision is inconsistent with Manning and creates disharmony in the law of this state. A lawyer or judge reading Manning and the majority opinion in this case would find it impossible to reconcile the two decisions and to determine what circumstances require a change of venue.

For the reasons expressed, I dissent and would remand for a new trial in a county other than Wakulla County.

McDONALD, J., concurs.


author: BOYD, Chief Justice. EHRLICH, Justice,

text:
    Edward CERRITO and Joan R. Cerrito, Petitioners, v. Jacqueline R. KOVITCH, Louis Kovitch, and Ed-Jo Corporation of Florida, Inc., Respondents.
    No. 63150.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Nov. 15, 1984.

      Harvey Kaufman of Kenney, Boswell & Kaufman, Palm Beach, for petitioners.
    Richard W. Wasserman, Miami Beach, for respondents.
   BOYD, Chief Justice.

This case is before us to review a decision of a district court of appeal, Cerrito v. Kovitch, 423 So.2d 1008 (Fla. 4th DCA 1982), which expressly conflicts with a decision of another district court of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The petitioners Edward and Joan Cerrito applied to a mortgage broker for a loan. The broker advised them to establish a corporation to act as the formal borrower because the higher permissible interest rate might better attract a lender. The broker then found an interested lender, Jacqueline Kovitch. Kovitch lent $25,000 to Ed-Jo Corporation of Florida, and the Cerritos both signed as personal guarantors. They also executed a mortgage on their home as security for the loan.

Eventually the Cerritos defaulted and Kovitch brought this action to foreclose the mortgage. The Cerritos filed a counterclaim on the ground that the loan was usurious and demanded a jury trial on their claim. The trial court refused to allow a jury trial, struck the counterclaim’s prayer for damages, and rendered judgment of foreclosure.

On appeal the Cerritos argued that the usury statute creates a right of action for damages activating the constitutional right of jury trial and also challenged the trial court’s ruling that there was no ground to deny foreclosure under the usury law. They relied upon Smith v. Barnett Bank, 350 So.2d 358 (Fla. 1st DCA 1977), which held that a cause of action for money damages, even though based on modern legislation rather than the common law, carries with it the right to a jury trial.

The district court of appeal rejected the argument that the usury law creates a right of action for money damages; found that usury is an affirmative defense and creates no right that may properly be presented by counterclaim; and held that foreclosure was proper.

The sole issue we shall consider is whether a jury trial is constitutionally guaranteed in a mortgage foreclosure proceeding when usury is raised in a counterclaim. The right to a' jury trial, in the absence of specific statutory authorization, depends upon whether the nature of the cause of action is legal or equitable. However, where both legal and equitable issues are presented in a single case “only under the most imperative circumstances ... can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 956, 957, 3 L.Ed.2d 988 (1959). In such cases the jury trial must be accorded to the person requesting it even though the legal issues are incidental to the equitable issues. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962).

The Cerritos argue that because their usury counterclaim was for money damages, it constitutes an action at law guaranteeing them the right to a jury trial. In support of their position, they cite Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974), which stated that “where an action is simply ... for the recovery of a money judgment, the action is one at law.” Id. at 370, 94 S.Ct. at 1727 (quoting Whitehead v. Shattuck, 138 U.S. 146, 151, 11 S.Ct. 277, 34 L.Ed. 873 (1891)).

We do not find this language to be dispositive. What is essentially an equitable cause of action cannot be transformed into a legal cause of action simply by the use of legal terminology in the complaint. See Dairy Queen, Inc. v. Wood. Not all claims for money are legal actions triable by jury as a matter of right. Swofford v. B. & W, Inc., 336 F.2d 406 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965).

In this case the Cerritos’ counterclaim was based upon section 687.04, Florida Statutes (1981), which provides in pertinent part:

Any person, or any agent, officer, or other representative of any person, willfully violating the provisions of s. 687.03 shall forfeit the entire interest so charged, or contracted to be charged or reserved, and only the actual principal sum of such usurious contract can be enforced in any court in this state, either at law or in equity; and when said usurious interest is taken or reserved, or has been paid, then and in that event the person who has taken or reserved, or has been paid, either directly or indirectly, such usurious interest shall forfeit to the party from whom such usurious interest has been reserved, taken, or exacted in any way double the amount of interest so reserved, taken, or exacted.

(Emphasis supplied.) By requiring that usurious interest be forfeited, the legislature made it clear that the main purpose of the statute was to prevent violators from benefitting by charging usurious interest. As we have stated before, “authority is legion to the effect that an action predicated on remedies provided by the usury statutes creates no vested substantive right but only an enforceable penalty.” Tel Service Co. v. General Capital Corp., 227 So.2d 667, 671 (Fla.1969). See also Moret-to v. Sussman, 274 So.2d 259 (Fla. 4th DCA 1973).

Except when usurious interest has already been paid and the party is seeking its return plus the statutory penalties, see Dezelle v. King, 91 So.2d 624 (Fla.1956), we conclude that section 687.04 does not create a legal cause of action triable by jury. We therefore approve the decision of the district court of appeal and disapprove Smith v. Barnett Bank.

It is so ordered.

ADKINS, OVERTON, ALDERMAN, MCDONALD and SHAW, JJ., concur.

EHRLICH, J., dissenting with an opinion.

EHRLICH, Justice,

dissenting.

I cannot agree with the majority’s construction of section 687.04. The unambiguous language of the statute creates a cause of action for a money judgment where, as was alleged in this case, usurious interest has been paid. Regardless of its common law antecedents, the statute contemplates an action at law which would invoke the constitutional right to a trial by jury.

I would approve Smith v. Barnett Bank and quash the opinion of the Fourth District in this case.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Michael L. MANN, Respondent.
    No. 65710.
    Supreme Court of Florida.
    Oct. 11, 1984.
    John F. Harkness, Jr., Executive Director; John T. Berry, Staff Counsel and John A. Boggs, Director of Lawyer Regulation, Tallahassee; and Robert D. Rosen-bloom, Bar Counsel, Miami, for complainant.
    Michael L. Mann, Miami, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Disciplinary Rule 9-102(a)(2) of the Code of Professional Responsibility, article XI Rules 11.02(4), 11.-02(4)(b), 11.02(4)(c) of the Integration Rule of The Florida Bar and Bylaw 11.02(4)(c). We approve the petition, and we hereby suspend respondent, Michael L. Mann, for a period of ninety (90) days effective on November 10, 1984, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients and respondent shall not accept any new business. Following the period of suspension respondent shall be placed on a two-year period of monitored probation during which time he shall present local Staff Counsel with detailed quarterly reconciliations of his trust account. Respondent shall retain the services of a certified public accountant to monitor and oversee his trust account and operating account. The Florida Bar shall have the uncontested right, with or without cause, to inspect and audit respondent’s trust account and operating account (to include the inspection of ledger cards and journals).

Costs in the amount of $2,152.50 are hereby taxed against respondent.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Jon Jay FERDINAND, Respondent.
    No. 65683.
    Supreme Court of Florida.
    Oct. 11, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for complainant.
    Harris K. Solomon, Fort Lauderdale, for respondent.
   PER CURIAM.

This matter is before the Court on a petition for approval of conditional guilty pleá for consent judgment and entry of final order of discipline to violations of Disciplinary Rules 1-102(A)(4) and 9-102 and article XI, Rule 11.02(4) of the Integration Rule of The Florida Bar. We approve the petition and direct that Jon Jay Ferdinand shall appear before the board of governors of The Florida Bar for administration of a public reprimand. This opinion shall also be published in the Southern Reporter. Additionally, Ferdinand is placed on probation for a period of one year, effective immediately, and, as a condition of probation, he is required to retain the services of a certified public accountant, at his own expense, who will review Ferdinand’s trust account records and submit monthly reports to the branch staff auditor of The Florida Bar. The reports shall state whether Ferdinand is in substantial compliance with the current rules promulgated by this Court as they relate to trust accounts and will provide a monthly reconciliation of his trust account.

Costs in the amount of $342.85 are hereby taxed against Ferdinand.

It is so ordered.

BOYD, C.J., and ADKINS, McDONALD, EHRLICH and SHAW, JJ., concur.


text:
    John W. KEMP, Petitioner, v. MURPHY MANUFACTURING CO., Respondent.
    No. 63704.
    Supreme Court of Florida.
    Oct. 18, 1984.
    Edward A. Perse of Horton, Perse & Ginsberg, and Tew, Spittler, Berger & Bluestein, Miami, for petitioner.
    Gerald E. Rosser, Miami, for respondent.
   PER CURIAM.

Approved. Cates v. Graham, 451 So.2d 475 (Fla.1984).

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Paul K. SILVERMAN, Respondent.
    No. 65339.
    Supreme Court of Florida.
    Oct. 18, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David M. Barnovitz, Bar Counsel, Fort Lauderdale, for complainant.
    Stan L. Riskin, Riskin & Dishowitz, Hollywood, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Without Leave to Reapply, pursuant to article XI, Rule 11.08 of the Integration Rule of the Florida Bar.

The Petition is conditioned upon acceptance by the Board of Governors of the following terms and conditions:

“1. [Respondent], Paul K. Silverman, is, and at all times hereinafter mentioned was, a member of the Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. On July 13, 1981, [respondent] was suspended for three (3) months and one (1) day in the case The Florida Bar v. Silverman [400 So.2d 16] (Fla.1981). In that case, [respondent] pled guilty to representing two clients in a criminal case who had conflicting interests, failing to advance defenses or remedies available to one of such clients, and failing to prepare for trial in such case. [Respondent] has not sought reinstatement from such suspension and, therefore, currently stands suspended from the practice of law in Florida.
3. There is currently pending against [respondent] a disciplinary action, TFB Case Number 17F81F46, wherein it is alleged that [respondent] converted approximately $4,000.00 in trust funds belonging to the Estate of Angelo Giovan-niello, of which [respondent] was the personal representative, to his own use. A grievance committee found probable cause in such matter on September 20, 1983.
4. Upon knowledge and belief, there are no criminal proceedings currently pending against [respondent], [Respondent] has no past criminal history.
5. [Respondent] believes that the public interest will not be adversely affected by the granting of this petition and that permitting [respondent] to resign without leave to reapply will not adversely affect the purity of the Courts, nor hinder the administration of justice, nor the confidence of the public in the legal profession. In light of this Court’s opinion in The Florida Bar v. Mattingly, 342 So.2d 508 (Fla.1977), that a disbarment may not be permanent, [respondent] understands that he is consenting to the most serious discipline that can be imposed upon a member of The Florida Bar.
6. [Respondent] understands that he would generally be liable for any costs incurred by The Florida Bar in prosecuting disciplinary proceedings against him. Therefore, the [respondent] is willing to have taxed against him the costs incurred by The Florida Bar to date in the disciplinary proceedings that are listed as pending in this petition.
7. [Respondent] agrees to cooperate with any Client Security Fund investigation conducted by The Florida Bar and understands that he will remain personally liable to make restitution in the above described cases.
8. [Respondent] is no longer actively engaged in the practice of law.
9. [Respondent] has retained counsel in this matter and is acting freely and voluntarily with the advice and assistance of counsel.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Without Leave to Reapply on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign Without Leave to Reapply is hereby approved.

Costs in the amount of $608.07 are hereby taxed against Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Robert T. CLELLAND, Respondent.
    No. 65707.
    Supreme Court of Florida.
    Oct. 18, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Bar Counsel, Fort Lauderdale, for complainant.
    William H. Kilby, Fort Lauderdale, for respondent.
   PER CURIAM.

This matter is before the Court on petition for approval of conditional guilty plea for consent judgment and entry of final order of discipline for violations of Florida Bar Integration Rule, article XI, Rule 11.-02(3) and Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(3), 1-102(A)(4), 3-102(A) and 6-101(A)(3). We grant the petition and approve the conditional guilty plea and hereby enter a public reprimand against respondent, Robert T. Clelland, for these violations. The publication of this order in Southern Reporter and respondent’s personal appearance before the Board of Governors of the Florida Bar shall serve as his public reprimand.

Costs in the amount of $795.73 are hereby taxed against the respondent.

It is so ordered.

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