author: SAM W. TAYLOR, Judge.

text:
    Kelly COLLEY v. STATE.
    4 Div. 12.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.

      H.E. Lane and S. Mark Jordan and Paul Young, Jr. and Thomas Haigh, Enterprise, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and Jean Williams Brown, Asst. At-tys. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant was convicted of the capital offense of robbery during the course of which the victim is intentionally killed, see Ala.Code § 13-ll-2(a)(2) (1975), and sentenced to death. His conviction was affirmed by this court in Colley v. State, 405 So.2d 374 (Ala.Cr.App.1979), later reversed, Colley v. State, 405 So.2d 391 (AIa.1981) on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), see Beck v. State, 396 So.2d 645 (Ala.1980), and remanded for retrial, Colley v. State, 405 So.2d 392 (Ala.Cr.App.1981).

His second trial, from which he now appeals, resulted in a conviction of the capital felony and a sentence of life imprisonment without parole. The details surrounding the robbery-murder are reported in our pri- or decision, and there are no issues presented on this appeal which necessitate a recital of the facts.

I

The decision of the Alabama Supreme Court in Beck v. State, supra, is constitutional. Raines v. State, 429 So.2d 1111, 1112 (Ala.1982).

II

When the state seeks the death penalty for a robbery-murder, it is not necessary to establish any “aggravating circumstance” outlined in § 13-11-6 other than the subsection (4) circumstance that “the capital felony was committed while the defendant was engaged or was an accomplice in the commission of ... robbery.” As we observed in Dobard v. State, 435 So.2d 1338 (Ala.Cr.App.1982):

“Appellant contends that the first aggravating circumstance essentially duplicates the offense charged in the indictment and, therefore, may not be considered an aggravating circumstance in this case, citing Keller v. State, 380 So.2d 926 (Ala. Cr.App.1979), cert. denied, 380 So.2d 938 (Ala.1980). The rule in Keller, to the effect that the aggravating circumstance charged in the indictment cannot be used as both the criminal charge and the circumstance aggravating that charge, has been tacitly overruled in Kyzer v. State, 399 So.2d 330 (Ala.1981), and Beck, supra.”

See also Luke v. State, [Ms. 4 Div. 98, March 1,1983]-So.2d-(Ala.Cr.App. 1983).

III

Prior to trial, appellant filed a motion in limine seeking to prevent the prosecution from using his six prior felony convictions to impeach him in the event he chose to testify. The motion was denied. Appellant contends that the trial court’s ruling effectively prevented him from exercising his constitutional right to testify in his own behalf. This same argument was raised and resolved adversely to the accused in Edmonds v. State, 380 So.2d 396 (Ala.Cr. App.1980).

Appellant further contends that the prior convictions, all of which stemmed from guilty pleas, were not available to impeach him because at the time of the pleas he was not advised of his right to appeal.

Although we recognize that there is some question whether appellant was denied due process of law if he was not, in fact, informed of his right to appeal the convictions arising from his guilty pleas, see Carey v. Leverette, 605 F.2d 745 (4th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979); Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917, cert. denied, 291 Ala. 800, 277 So.2d 919 (1973), it is our judgment that the failure to so inform him in this case would not have precluded the state from using the convictions, which arose from voluntary guilty pleas, for impeachment purposes. Cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (failure to provide accused with Miranda warnings did not prevent prosecution from using otherwise voluntary confession for impeachment).

IV

Appellant contends that the Coffee County Jury Commission exceeded its authority by disqualifying prospective jurors on the basis of age.

At a hearing on appellant’s motion to quash the venire, Commission Chairman B.Z. Reynolds testified that, after reviewing and verifying the answers given on juror questionnaire forms, he excluded certain people from service. He did not “automatically” delete anyone from the roll based on their answers to the questions, but personally checked all information which could disqualify a prospective juror. Regarding the question of elderly jurors, the record reveals the following:

A. We had no way of knowing who was getting these or anything and if they put the age down there and they— were I thought too old to come up and down the steps and things at this courthouse without assistance, then I would disqualify them.
Q. Did you have a cut-off age in mind?
A. No. Some people are in better health at different ages than other ' people and the majority of them would answer that question and they would put a little note down here about remarks and they would name their doctor. And so you could call the doctor or something like that and check on it to see, and some of them even put their doctor’s statement with it when they returned it. Now, that to me, would disqualify a person.
Q. All right. Was this a decision that was reached by the entire jury board or did you all divide up and each one handle a particular section or number of beats in the county—
A. No, sir. We have three men on the board and a secretary, and we meet twice a week and all three weren’t present at some times but there was at least two there and the lady at every meeting that we held.
Q. All right. And so, it was a joint decision, it was not just your decision alone that some could be taken off?
A. Right.

Section 12-16-60, Code of Alabama 1975, empowers the county jury commission to “determine, on the basis of information provided on the jury qualification form or interviews with the prospective juror or other competent evidence ... [i]f the prospective juror is qualified.” Ala.Code § 12-16-60(b)(1). A prospective juror is qualified if, among other things, he is “capable by reason of physical and mental ability to render satisfactory jury service, and is not afflicted with any permanent disease or physical weakness whereby the juror is unfit to discharge the duties of a juror.” Ala.Code § 12-16-60(a)(3).

In our judgment, the Coffee County Jury Commission did not exceed its statutory authority by disqualifying those jurors whom the members determined were physically infirm. As we observed in Kittle v. State, 362 So.2d 1260, 1264 (Ala.Cr.App. 1977), rev’d on other grounds, 362 So.2d 1269 (Ala.1978), “[I]n considering the qualifications of jurors, jury commissioners have the right, and should, consider the practical availability for jury service of prospective jurors.”

Jury commissioners must necessarily exercise their discretion when deciding whether a citizen is “afflicted with ... physical weakness” to the extent that he is unable to serve on a jury, see Ala.Code § 12-16-60(a)(3).

“The preliminary determination of qualifications of persons listed for jury service, which determination controls as to whether they are to be so listed, is by jury commissioners or other officials exercising discretion and acting under statutory provisions designed to secure fortuity and eliminate personal judgment, insofar as possible, in such matter. Generally, however, it is impossible to eliminate discretion entirely and make the function of such officials purely ministerial.”

47 Am.Jur.2d Jury § 99 (1969).

In State v. Reid, 340 So.2d 551 (La.1976), and Commonwealth v. Brown, 231 Pa.Super. 431, 332 A.2d 828 (1974), both the Louisiana and Pennsylvania courts recognized that jury commissioners must be accorded the discretion to exclude those persons from jury service whose physical infirmities would interfere with the proper discharge of their duties.

In the case before us, the record does not reveal any abuse of the commissioners’ discretion to disqualify physically infirm jurors. Commissioner Reynolds testified that he did not automatically delete anyone from the master jury roll because that person was over a certain age; instead, he reviewed information about the respondent’s health and, if provided, checked with the citizen’s personal physician. In our judgment, the actions taken by the Coffee County Jury Commission were not, therefore, arbitrary and were well within the discretionary authority provided by statute.

The judgment of conviction by the Coffee Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alphonse Donald TIMMONS v. STATE.
    1 Div. 477.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   SAM W. TAYLOR, Judge.

The appellant in this case was convicted of this offense in 1981. The case was reversed because of unresponsive testimony by a police witness bearing on the appellant’s right to remain silent. He was again convicted and sentenced to twenty-five years’ imprisonment for robbery in the first degree. He appeals.

The jury found that the appellant approached a woman in a grocery store parking lot, demanded her pocketbook and then shot her in the jaw. She got out of the car and the appellant shot at her again and missed. She positively identified the appellant as the robber. His defense of alibi was rejected by the jury.

I

Appellant first contends that the court erred in not granting him a pretrial hearing on his motion to suppress a photographic identification. The court never ruled on this motion. The United States Supreme Court has held as recently as 1981 that such a pretrial hearing is not mandatory to the preservation of the defendant’s constitutional rights. Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549.

On the motion itself, it is apparent from the record that the police took elaborate precautions to see that the photographic display was free from influence or suggestiveness. Further, the victim made a positive in-court identification of the appellant, whom she had had ample opportunity to observe.

Both defense counsel and the court referred in the record to what was done “last time”. They refer to a previous trial of this same case in which these same facts and issues had been presented. The photographic display and testimony regarding it came as no surprise to the appellant. The fact that a case has been tried before, and a transcript of the proceedings made available may be taken into consideration in determining whether the substantial rights of a defendant have been violated. In this case, we find that the court did not err in not holding the pretrial hearing.

II

Appellant next contends that the conduct of the trial judge impaired his right to a fair trial. The conduct complained of consisted of statements by the court. Two remarks consisted of little more than expressions of surprise, one regarding the existence of a little known geographical feature and the other regarding a fine distinction in hairstyles. Another was precipitated by defense counsel’s misstatement of the testimony of a witness as to how many weeks she had stayed in the hospital after being shot by the appellant. Another remark occurred during a voir dire examination out of the presence of the jury. There again, the court pointed out that the pre-ceeding question of defense counsel misstated earlier testimony, thereby assuming a fact not in evidence.

The remark complained of at transcript page 66 came about while the prosecutor, Mr. Hargett, was asking a series of questions of Sgt. Waltman, the photographer. The defense counsel, Mr. Brown, stated:

“Judge, I’m sorry. I’m a little confused by the questions here. If he could repeat those?
“THE COURT: I don’t mind him repeating them, but I’ll tell you what he asked him. He asked him were the pictures taken of the individual with caps on or off.
“Am I correct?
“MR. BROWN: And the response was?
“THE COURT: And your response was that they were with the caps off, am I correct?
“WITNESS: Yes, sir.”

The so-called “remarks” of the judge were in no way “suggestive of guilt” and were, in fact, appropriate. We do not perceive this as “participation in the trial” by the judge as claimed by counsel.

We have considered the other issues raised by the appellant and find them without merit.

For the reasons stated above, this cause should be and hereby is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Rudolph John PENNUCCI v. STATE.
    1 Div. 556.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    J. Donald Banks, Loveless & Banks, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Rudolph John Pennucei was convicted of murdering JoAnn Richards, his ex-wife, and was sentenced to life imprisonment. The evidence was that on March 22, 1982, the appellant entered the Delchamps Food Store at K-Mart Plaza, Highway 90 in Mobile, where his ex-wife was a cashier. He shot her in the back, she fell to the floor and he shot her four more times. Four of the wounds were close together in the upper right chest area. He reloaded his pistol, exited the store and stood at the corner of the building holding police and others at bay for about four hours. Appellant’s sister, a police negotiating team, and a priest all talked with him from a hundred-foot distance. Finally, he fired the pistol, creasing the top of his own head.

As part of the jury selection process, which was very lengthy because of full media coverage of the events, the court, pursuant to appellant’s request, asked:

“THE COURT: Now ladies and gentlemen of the jury, these are a list of witnesses that might be called for the Defendant: Yince Gomez; Jim Brusni-ghan; Shirley Knight; Chester Horn-buckel; Tina Bean; Billy Bean; Clyde Van Rosen; Gary P. Alidor; is that the attorney?
“MR. BANKS: Yes, sir.
“THE COURT: Jane Renick; Peader Dalton; F.D. Sims. Now, are any of you personally acquainted with or friends of any of these people?
“(No response)”

A jury was then selected.

After sentence, it was discovered that a juror had previously had dealings with "witness, Clyde Van Rosen. Appellant moved for a new trial, citing the failure of the prospective juror to answer truthfully the questions in the voir dire examination. The parties stipulated as follows:

“MR. BANKS: It is stipulated between the State and the defense that Clyde Van Rosen would testify to the effect that he was a witness in the trial of Rudolph John Pennucei. Further, that he knew Mr. Wendil E. Carney, juror number 27, on Panel 3. His' association with Mr. Carney was the result of his having evaluated Mr. Carney in connection with a child custody matter in which Mr. Carney did not get custody of the child involved. And further that Mr. Carney owes money on Dr. Rosen’s account.

The motion for new trial was denied.

Appellant contends the court erred in denying the motion for new trial based on the failure of a juror to answer a question proponded to that juror on voir dire examination.

Dr. Van Rosen, a clinical psychologist testified as an expert on behalf of the defendant on the defense of insanity. He testified that he examined the appellant one time, the Saturday before trial in November, 1982, for several hours. He said that on March 27, 1982, the appellant had: a major depressive episode, was abusing alcohol, and also had a drug dependence. He later stated that:

“A Well, I think that in regards to his actions on — I don’t know the exact date of the day of the shooting. I think he was going to do this and he was more or less powerless to stop this. He was going to shoot his wife or his ex-wife and he didn’t care about the consequences. He was powerless to resist.
“Q Powerless?
“A I think so.”

Dr. Van Rosen testified he did not think the appellant was a psychotic.

Other witnesses were called by the appellant, including his divorce lawyer, another person who had known him for 22 years, a priest, his sister, a manager from his employer’s, a psychiatrist’s nurse, and appellant’s nephew. All were asked questions pointing to appellant’s mental condition or actions reflecting his mental condition. Some were asked specifically about bizarre behavior and evidence was adduced that appellant apparently had made several attempts at suicide.

The principle of law governing this situation is set out by Chief Justice Torbert in Martin v. Mansell, 357 So.2d 964, 967 Ala. 1978, where he stated:

“We agree with the Martins that counsel and parties are entitled to true and honest answers from prospective jurors to enable them to exercise their discretion wisely in the use of peremptory strikes and that when jurors fail to answer questions correctly, counsel and parties are denied the exercise of that right. Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969); Morris v. Zac Smith Stationery Company, 274 Ala. 467, 149 So.2d 810 (1963); Leach v. State, 31 Ala.App. 390, 18 So.2d 285, cert. denied, 245 Ala. 539, 18 So.2d 289 (1944).

“In Freeman v. Hall, 286 Ala. 161, 166-67, 238 So.2d 330, 335-36 (1970), this court stated the following:

‘Neither Sanders v. Scarvey, Leach, nor the original opinion in the instant case, is authority for the proposition that on voir dire any failure of any prospective juror to respond properly to any question regardless of the excuse or circumstances automatically entitled a party to a new trial or reversal of the cause on appeal.
‘We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant.’ ”

This principle has been reaffirmed in Ex Parte Ledbetter, 404 So.2d 731 (1981). Mr. Justice Beatty quoted with approval the following at page 733:

“‘Where the party has examined the jurors concerning their qualifications, and they do not answer truly, it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing his right of peremptory challenge. * * * And accordingly, in most States the fact that a juror answered falsely as to his qualifications is a recognized ground for a new trial’ (Hayne on New Trial & Appeal, p. 143, Section 45) — we would say, of course, where there was probable prejudice to the defendant by such juror’s conduct. See also People v. Galloway, 202 Cal. 81 259 P. 332; Williams v. Bridges, 140 Cal.App. 537, 35 P.2d 407; Hyman v. Eanies, C.C. [Colo.], 41 F. 676; Ippolito v. United States, 6 Cir. [Ohio], 108 F.2d 668.”

In this instant the juror received a brief evaluation from the clinical psychologist, Dr. Rosen. Dr. Rosen testified that in addition to his private practice, he had a full-time job as administrator of the in-patient Mental Health Center of the U.S.A. Medical Center. Also, that he was in charge of the jail consultation programs with the Mobile city and county jails. Additionally that he testified on “probably 99 percent of all commitment cases in Mobile County and that has probably been close to fifteen hundred since I’ve been here.” [RR-131]

Going back, the question asked was, “Now, are any of you personally acquainted with or friends of ...” listed witnesses.

In all likelihood, the prospective juror did not consider himself to be “personally acquainted with” or “friends of” Dr. Rosen. We conclude that the prospective juror correctly answered the question to himself, and correctly did not respond. There is, then no concealment. The jury had before it a great deal of testimony from which to make its determination on the plea of not guilty by reason of mental disease or defect. Dr. Rosen’s testimony was “iffy” at best. Twice he said in the same sentence that the appellant had made up his mind to do the murder, but then could not stop himself.

The prospective juror was seen by a very busy clinical psychologist in connection with a divorce in which the wife got custody of the children — an unremarkable result. We note that as a divorced man whose ex-wife had child custody, his situation in life would tend to make him more sympathetic to the appellant than otherwise, and more likely to be struck by the state than the defense.

This is a close case factually. We conclude, that, applying the principles referred to herein, there was no concealment, intentional or unintentional. Thus, there is no basis for this appeal and the judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: THOMAS N. YOUNGER, Circuit Judge.

text:
    Annie Lois NATHAN v. STATE of Alabama.
    3 Div. 680.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    D. Wayne Perdue, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
   THOMAS N. YOUNGER, Circuit Judge.

The appellant was convicted of child abuse and sentenced to five years’ imprisonment. The court granted the appellant’s application for probation, conditioned on a period of confinement at Bryce Hospital.

I

The only question presented for review is whether, during the cross examination of the appellant, a statement by the prosecuting attorney was of such a prejudicial nature so as to be incapable of eradication by rulings and instructions from the trial court

The pertinent part of the questions by the prosecution and the answers by the appellant is as follows:

“Q. Did you pick up Kelvin Nathan because you were mad with your husband over an argument, and just throw him down?
“A. No, I did not throw him down.
“Q. You said you were going to kill him?
“Á. No, I did not. What I going to kill him for, when I didn’t kill the other six I had?
“Q. One of them died.
“A. Yeah, by pneumonia, and that wasn’t none of my fault, at all.” (R. 53)

On motion by the appellant, the trial court promptly admonished the jury to disregard the statement by the prosecution, but overruled the motion for a mistrial. The appellant contends that the interjection by the state of the death of another child, in a prosecution for child abuse, was prejudicial and the court’s failure to grant a mistrial was an abuse of discretion and reversible error.

II

The statement, although objectionable and otherwise improper, came after the appellant had herself interjected the issue concerning the death of her other child. Furthermore, on re-direct examination, the appellant testified in detail concerning the circumstances of the death of the other child, and the court properly sustained objections to further cross examination by the state on this point.

The general rule concerning prejudicial statements made by counsel during the course of trial and closing arguments is set forth in Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973).

“It is a general rule that where prejudicial statements are made in the heat of argument, even though improper, in accommodation of our adversary system, such statements are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both.” See also, Miller v. State, 431 So.2d 586 (Ala.Cr.App.1983), and cases cited therein.

III

The record reflects sufficient legal evidence from which the jury could find that the appellant was guilty of child abuse, as charged in the indictment. Although the testimony was conflicting, Brenda Smith, a witness called by the state, testified in substance that the appellant, during an argument with the father of the child, picked up the two-month-old baby and threw it down, the baby landing on its head (R. 35-37). A stipulation was entered into to the effect that the physician who examined the child on the morning of the incident would, if called as a witness, testify that the child appeared to be dazed and briefly unconscious as a result of the incident that took place. His diagnosis was that the child sustained a head injury, possibly a mild concussion, and was dazed and briefly unconscious (R. 45).

Since the statement by the prosecution came after the appellant had interjected the issue of the death of her other child, and in view of prompt action taken by the trial court, we cannot say that the objectionable statement was not capable of being eradicated from consideration by the jury.

We have carefully considered the entire record in this case, and find no error. The judgment of the trial court is due to be, and the same is, affirmed.

The foregoing opinion was prepared by Hon. Thomas N. Younger, Circuit Judge, temporarily on duty on the Court pursuant to § 12-2-30(b)(6), Code of Ala.1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


text:
    James I. TYREE v. STATE.
    5 Div. 764.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.

      Keith A. Howard, Howard, Dunn & Howard, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

This appeal is from a judgment entered by the trial judge of the Circuit Court of Elmore County dismissing a petition for a Writ of Habeas Corpus.

Code of Alabama, 1975, Sec. 15-21 — 4 provides in part:

“Application for a writ of habeas corpus must be made by petition, signed either by the party himself for whose benefit it is intended or by some other person on his behalf xxx; and, if the imprisonment is by virtue of any warrant, writ or other process, a copy thereof must be annexed to the petition or the petition must allege that a copy thereof has been demanded and refused or must show some sufficient excuse for the failure to demand a copy.”

The record in this case shows on its face that the petition does not comply with the provision in Code of Alabama, Section 15-21-4, which provides that if the imprisonment is by virtue of any warrant, writ or other process, a copy thereof must be annexed to the petition or the petition must allege that a copy thereof has been demanded and refused or must show some sufficient excuse for the failure to demand a copy.

We hold that the trial court did not err by dismissing appellant’s petition. Code of Alabama, 1975, Sec. 15-21-4; Ex parte Thomas, 270 Ala. 411, 118 So.2d 738 (1960); Writ of Certiorari Denied, 363 U.S. 822, 80 S.Ct. 1263, 4 L.Ed.2d 1521; Moore v. State, Ala.Cr.App. 417 So.2d 610.

The judgment of the trial court is due to be, and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Michael Lynn TIDMORE, Alias v. STATE.
    7 Div. 118.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.

      James F. Hinton and Hubert Wright, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant was convicted of robbery in the first degree. He was sentenced to life imprisonment under the Habitual Offender Act.

The issues appellant raises concern themselves with what did or did not occur during appellant’s sentencing hearing.

I

It is first argued that the trial judge failed to state expressly that the appellant was guilty so that there was no formal adjudication of guilt. Therefore, the judgment of the trial court should be reversed. However, since the judgment entry clearly shows that the jury found appellant guilty of robbery in the first degree and since it clearly shows that he was sentenced to life under the Habitual Offender Statute, we find no merit in this argument.

As the court said in Poellnitz v. State, 48 Ala.App. 144, 262 So.2d 631 (1972):

“... although we would deem it to be better practice for the trial judge to formally adjudge the defendant guilty before rendering sentence, our courts have consistently held that an implied judgment of guilt results where there appears a valid sentence in proper form by the court in compliance with a verdict of guilt.” (citations omitted)

Appellant argues that it was neither affirmatively shown that he was represented by competent counsel nor was it shown that he waived counsel in the convictions for prior felony cases which were allowed into evidence at the sentencing hearing. It is true that in Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), the Supreme Court held that in order to consider prior convictions to enhance punishment, the defendant must have been represented by counsel or have waived counsel in those cases. However, we find that the docket sheets of the prior felony cases introduced at the sentencing hearing showed that the appellant was represented by counsel. This sufficiently satisfies the Burgett requirement. Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.1981), cert. denied 406 So.2d 1053 (Ala.1981).

III

Appellant next challenges his sentence on the grounds that he was never asked by the trial court if he had anything to say before sentence was pronounced against him. It is true that such a failure on the trial court’s part would require that the case be remanded for proper sentencing. Junior v. State, 411 So.2d 850 (Ala.Cr.App. 1982).

However, the judgment entry in this case contains the following sentence:

“And on this the 3rd day of February, 1983 comes the Defendant, and his attorney, and being now in open court and being asked by the Court if he has anything to say why the judgment of the court and the sentence of the law should not be pronounced upon him, Defendant says nothing.”

Thus, we find that allocution did indeed occur and there is no basis for remanding the case.

IV

Appellant’s last claim is that § 13A-5-9, Code of Alabama 1975, the Habitual Offender Statute, is an ex post facto law. A discussion of this issue is unnecessary since the constitutionality of that statute has been upheld by this court on numerous occasions. James v. State, 405 So.2d 71 (Ala.Cr.App.1981).

For the reasons stated above, it is the decision of this court that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Rodger NORVENE v. STATE.
    8 Div. 851.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    David H. Culver, Huntsville, for appellant.

      Charles A. Graddick, Atty. Gen., and Pa-; trida E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Rodger Norvene, was charged by an indictment containing two counts, and returned against him by the Grand Jury of Madison County stating in count one that he did unlawfully possess pentazocine, and in count two that he unlawfully possessed phenmetrazine, in violation of the Alabama Uniform Controlled Substance Act. He entered a plea of not guilty, was found guilty as charged by a jury, and duly sentenced to be imprisoned in the penitentiary for two years. He appeals to this Court.

The appellant was represented at all proceedings in the trial court, and is represented in this Court, by counsel of his choice. This appeal was submitted on briefs.

The appellant states in his brief that the trial court erred to his prejudice in overruling his motion to exclude state’s evidence because at the time the state rested its case the motion pointed out that the state had not proven the prerequisite element of knowledge on the part of the appellant of the possession of the controlled substance.

State’s evidence tended to prove that in the early morning hours of May 17, 1982, officers Worley, Turner, Gibson, and Osborne, of the Huntsville Police Department, received a call to go to 490 Binford Court, Huntsville, Alabama, where someone allegedly was shooting into an apartment. The appellant and three other men were standing in front of Apartment 490, Bin-ford Court, when the officers arrived. All of them denied having a gun. The appellant was intoxicated, and was arrested on the scene for public intoxication. Officer Gibson found a .25 caliber Beretta automatic pistol in the back of a pickup truck in front of 490 Binford Court. The appellant was searched (patted down) at the scene,, and again at the police station, both times by Officer Turner, and on neither occasion was anything found on the appellant.

After arriving at the police station, the appellant was required to remove the contents of his pockets. Warden Palmer of the Huntsville Police Department took the appellant into another area of the booking room of the city jail and there conducted his routine search of the appellant and found tucked up inside the appellant’s right front blue jean pocket a small cellophane packet containing a bright orange pill and six lighter orange pills.

The cellophane packet was, through correct channels, delivered to Mrs. Martha Odom, Criminologist of the State of Alabama Department of Forensic Sciences, the Huntsville Division. The six (6) peach-colored tablets were found by her to contain pentazocine; and the orange tablet contained phenmetrazine, both substances listed on a schedule within the Alabama Uniform Controlled Substance Act. “Talwin” is the trade name for phenmetrazine, a synthetic narcotic or pain killer, and “preludin’’ is the trade name for pentazocine, a diet pill. Another officer, Warden Goode, administered a breath-alcohol test upon the appellant after he was booked, the result of which was a .20 percent blood-alcohol content. The appellant was arrested for violation of the Alabama Uniform Controlled Substance Act on September 15, 1982.

On a motion to exclude state’s evidence this Court is required to view state’s evidence most favorable to the state, and not substitute its judgment for that of the jury. Where the evidence presented by the state raises questions of fact for the jury, and if believed by the jury, and is sufficient to sustain a verdict of guilty, this Court should not disturb the jury verdict. Bozeman v. State, Ala.Cr.App. 401 So.2d 167; Writ Of Certiorari Denied, Ex parte Bozeman v. State, Ala. 401 So.2d 171; Cert. Den., 454 U.S. 1058, 102 S.Ct. 606, 70 L.Ed.2d 595; Gullatt v. State, Ala.Cr.App. 409 So.2d 466..

Appellant claims in his brief that the trial court erred to his prejudice in overruling his motion to exclude state’s evidence. With this contention we cannot agree. Under state’s evidence the question as to the appellant’s knowledge of having the drugs was for the jury to decide. The drugs were found in the pocket of the clothes the appellant was wearing when he was searched. This is sufficient to sustain a jury verdict finding the appellant guilty as charged. Flippo v. State, Ala.Cr.App. 359 So.2d 1184; Chatom v. State, Ala.Cr.App. 360 So.2d 1068; Certiorari Denied, Ala. 360 So.2d 1074.

We have reviewed the entire record, and find no error prejudicial to the rights of the appellant. We hold that under the facts in this case the trial court did not err to the prejudice of the appellant by overruling his motion to exclude state’s evidence.

The judgment of the trial court is due to be, and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: OVERTON, Justice.

text:
    Stephen C. ACHIN, Petitioner, v. STATE of Florida, Respondent.
    No. 59840.
    Supreme Court of Florida.
    Jan. 21, 1982.
    Rehearing Denied Aug. 30, 1983.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition to review the decision of the Fourth District Court of Appeal, reported at 387 So.2d 375. The issue concerns whether a defendant may be convicted of a nonexistent lesser included offense, where defense counsel requested that the jury instruction for the nonexistent offense be given. We find conflict with our decisions in Adams v. Murphy, 394 So.2d 411 (Fla.1981), and Pagano v. State, 387 So.2d 349 (Fla. 1980). We hold that one may never be convicted of a nonexistent crime and remand for a new trial, finding that defense counsel invited the error.

The state charged petitioner with extortion under section 836.05, Florida Statutes (1977). In a jury trial, at the jury instruction charge conference, the following exchange occurred:

THE COURT: Do either of you have any special instructions to present to the Court?
MR. SANDSTROM [defense attorney]: Well, it ended a little prompt. Do you have one in there that defines each of the words that are in here?
THE COURT: I don’t know. I never had a case like this before. Are there any lesser offenses of this?
MR. SANDSTROM: There is always attempt.
MR. SCHAEFER [state attorney]: I would like, at least for the purpose of closing argument, that we know what the lesser includeds are.
THE COURT: The only lesser would be attempted, as far as I know. No [other] lessers have been requested?
MR. SANDSTROM: Right.

In accordance with the charge conference, and without objection, the trial court instructed the jury on extortion and attempted extortion. The jury found petitioner guilty on the asserted lesser included attempt charge and the trial court entered judgment on the verdict.

On appeal, petitioner argued that the court should vacate his conviction and should discharge him because the crime of extortion was by definition an “attempt”; therefore, “attempted extortion” was not in fact a crime. The district court agreed that attempted extortion was not a crime and that ordinarily one could not be convicted of a nonexistent crime. But, the district court held that in this instance, “the error is not invariably fundamental and where the error is deliberately invited [by defense counsel] and the instruction not objected to, the defendant shall not be heard to complain about the result.” 387 So.2d at 376. The court concluded that defendant “did more, much more than just remain silent and we must again borrow Judge Schwartz’ language and remark that such ‘gotcha’ maneuvers should not be allowed .... ” Id. at 377.

We agree with the district court's analysis that attempted extortion is a nonexistent offense. Contrary to the district court’s decision, however, we reluctantly conclude that, even under these circumstances, no one may be convicted of a nonexistent crime. Our decisions are clear on this issue. Adams v. Murphy, 394 So.2d 411 (Fla.1981) (attempted perjury); Pagano v. State, 387 So.2d 349 (Fla.1980) (attempted corruption by threat against a public servant).

Petitioner next maintains that because the jury found him guilty of what was supposedly a lesser included offense, he was acquitted of the main offense, and that the double jeopardy clause of the fifth amendment to the United States Constitution bars his retrial for the main offense. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). For this reason, petitioner urges that he is entitled to discharge. We reject this contention.

In Green, the United States government charged defendant with causing the death of a woman by committing arson to the building which she occupied. The indictment was for first-degree murder. At trial, the court instructed the jury on first-degree murder, a killing while perpetrating a felony, and on the lesser included offense of second-degree murder, a killing with malice aforethought. The jury returned a verdict of second-degree murder. On appeal, the conviction was set aside and the cause remanded. Green was again tried for first-degree murder and this time convicted on that charge. He alleged that his conviction for second-degree murder in the first trial had effectively acquitted him of the first-degree charge and contended that his second trial placed him in double jeopardy.

The United States Supreme Court agreed. “In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: ‘We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’ ” 355 U.S. at 191, 78 S.Ct. at 225, accord Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

We find the instant circumstances distinguishable. In Green, the trial court instructed on the main offense, first-degree murder, and on the lesser included, second-degree murder. In the instant case, the trial court instructed on the main offense, extortion, and what it erroneously thought was a lesser included, attempted extortion. As the district court correctly concluded, “attempted extortion” is not a crime because “extortion” is in itself an attempt. The elements for both are identical. Rather than being a lesser included of “extortion,” “attempted extortion” is “extortion.”

In Green, the Supreme Court said conviction of a lesser included offense acquitted defendant of the main offense. We find in the present case that because defendant was convicted of a crime which, although technically nonexistent, was in all elements equal to the main offense, the double jeopardy provision of the fifth amendment does not bar defendant’s reprosecution. We conclude that defendant is not entitled to discharge.

We agree with the district court that defense counsel invited the error. Within constitutional parameters, we will not permit defendants to defeat the criminal justice system by such action. Although petitioner cannot be convicted of a nonexistent offense, he can, under these circumstances, be retried.

The Fourth District Court’s decision is approved in part, disapproved in part, and the cause remanded for retrial.

It is so ordered.

ADKINS, BOYD and ALDERMAN, JJ., concur.

SUNDBERG, C.J., concurs as to reversal; dissents as to retrial.

McDONALD, J., dissents.

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

      . 836.05 Threats; extortion. — Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.

      . But see Adams v. Murphy, 653 F.2d 224 (5th Cir.1981) (habeas writ issued to defendant convicted of non-existent “attempted perjury”).


author: PER CURIAM.

text:
    Julian L. GIBSON and Alfred J. Gibson, Petitioners, v. STATE of Florida, Respondent.
    No. 61372.
    Supreme Court of Florida.
    Feb. 17, 1983.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioners.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

On February 23, 1982, this Court entered its order accepting jurisdiction and dispensing with oral argument. After further consideration, we decline to accept jurisdiction. We therefore deny the petition for review. 403 So.2d 1019.

It is so ordered.

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


author: McDONALD, Justice. BOYD, Justice, PER CURIAM.

text:
    James STEVENS, Jr., Petitioner, v. Patricia JEFFERSON, as Personal Representative of the Estate of Earl Sidney Jefferson, Sr., Deceased, Respondent.
    No. 61651.
    Supreme Court of Florida.
    June 2, 1983.
    Rehearing Denied Sept. 9, 1983.

      Robert L. Appleget, Jr. of Black, Meffert, Landt, Appleget & Wiechens, Ocala, for petitioner.
    William H. Phelan, Jr. of Bond, Arnett & Phelan, Ocala, for respondent.
    John P. Bennett of Fishback, Davis, Dominick & Bennett, Orlando, for the Florida Restaurant Association; and Dennis E. LaRosa, Tallahassee, for Independent Beverage Dealers, Inc., amici curiae.
   McDONALD, Justice.

We accepted jurisdiction in this cause because the per curiam affirmance by the district court indicated contrary authority. We have jurisdiction pursuant to article V, section 3(b)(3) of the state constitution.

Earl Sidney Jefferson was shot and killed in a bar by a fellow patron. Stevens owned and operated- the bar. Jefferson’s widow alleged and proved that previously there had been numerous shootings and fights in the bar, that the owner had failed to train or equip employees to maintain order, and that no security personnel had been employed when the owner knew or should have known that his patrons were being exposed to risk of harm from fights or shootings by other patrons. In effect Mrs. Jefferson showed that Stevens either created a dangerous condition or allowed one to exist by the manner in which he ran his establishment. She did not allege, however, that Stevens knew of any dangerous propensities of Jefferson’s assailant, and Stevens contends that Jefferson cannot prevail because of that lack of knowledge. We disagree.

The proprietor of a place of public entertainment owes his invitee a duty to use due care to maintain his premises in a reasonably safe condition commensurate with the activities conducted thereon. Central Theatres, Inc. v. Wilkinson, 154 Fla. 589, 18 So.2d 755 (1944). We have stated that the proprietor of a liquor saloon, although not an insurer of his patrons’ safety, is bound to use every reasonable effort to maintain order among his patrons, employees, or those who come upon the premises and are likely to produce disorder to the injury or inconvenience of patrons lawfully in his place of business. Miracle v. Kriens, 160 Fla. 48, 33 So.2d 644 (1948). A determination as to whether this duty has been violated will, of necessity, depend upon a review of the facts of each individual case. Additionally, the risk of harm must be foreseeable. This foreseeability requirement has often been met by proving that the proprietor'knew or should have known of the dangerous propensities of a particular patron. See, e.g., Sabatelli v. Omni International Hotels, Inc., 379 So.2d 444 (Fla. 3d DCA 1980). But specific knowledge of a dangerous individual is not the exclusive method of proving foreseeability. It can be shown by proving that a proprietor knew or should have known of a dangerous condition on his premises that was likely to cause harm to a patron. Fernandez v. Miami Jai Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980).

To affix liability against a tavern owner for injuries to patrons intentionally inflicted by third parties, a risk of harm to his patrons must be reasonably foreseeable, and the weight of authority, both in this state and elsewhere, supports a standard of reasonable foreseeability. See, e.g., Sparks v. Ober, 192 So.2d 81 (Fla. 3d DCA 1966); Industrial Park Businessmen’s Club, Inc. v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972); Kerby v. Flamingo Club, Inc., 35 Colo.App. 127, 532 P.2d 975 (1974); Gorby v. Yeomans, 4 Mich.App. 339, 144 N.W.2d 837 (1966); Tyrrell v. Quigley, 186 Misc. 972, 60 N.Y. S.2d 821 (N.Y.Sup.Ct.1946); Waldron v. Hammond, 71 Wash.2d 361, 428 P.2d 589 (1967). Although knowledge of a particular assailant’s propensity for violence is often found to be evidence of foreseeability in these cases, we reject the contention advanced by amicus curiae here that proof of foreseeability should be limited by law to evidence of actual or constructive knowledge of a particular assailant’s propensity for violence. A tavern owner’s actual or constructive knowledge, based upon past experience, that there is a likelihood of disorderly conduct by third persons in general which may endanger the safety of his patrons is also sufficient to establish foreseeability. Kerby v. Flamingo Club, Inc.; Tyrrell v. Quigley; Restatement (Second) of Torts § 344 comment f (1965).

Although stated in a different factual context, the Fourth District Court of Appeal in Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA 1981), correctly summarized the law when it said:

An action for negligence is predicated upon the existence of a legal duty owed by the defendant to protect the plaintiff from an unreasonable risk of harm. The extent of the defendant’s duty is circumscribed by the scope of the anticipated risks to which the defendant exposes others. In order to prevail in a lawsuit, the plaintiff must demonstrate that he is within the zone of risks that are reasonably foreseeable by the defendant. The liability of the tortfeasor does not depend upon whether his negligent acts were the direct cause of the plaintiff’s injuries, as long as the injuries incurred were the reasonably foreseeable consequences of the tortfeasor’s conduct. Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3rd DCA 1976). If the harm that occurs is within the scope of danger created by the defendant’s negligent conduct, then such harm is a reasonably foreseeable consequence of the negligence. The question of foreseeability and whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis Rent-A-Car System, 386 So.2d 520 (Fla.1980).

(Emphasis in original.)

It is incumbent upon the plaintiff to prove legal causation. Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969), cert. discharged, 235 So.2d 294 (Fla. 1970). Mrs. Jefferson met her burden by showing that the bar was a “rough” place with a history of fights and gunplay and that the owner had terminated all security service and had left the premises in the charge of a female employee who could not maintain order. Under these facts a jury could determine that a foreseeable risk of harm to patrons existed, that the risk was either created or tolerated by Stevens, that he could have remedied the danger but failed to do so, and that because of that failure to perform his duties Jefferson was killed. The district court properly affirmed the judgment for Mrs. Jefferson and its action in doing so is approved.

It is so ordered.

ALDERMAN, C.J., and OVERTON and EHRLICH, JJ., concur.

ADKINS, J., concurs in result only.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I respectfully dissent to the action of the court in accepting jurisdiction to review the decision of the district court of appeal. The district court’s order of affirmance reads in its entirety as follows:

PER CURIAM.

See Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981); Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980). But see Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980); Warner v. Florida Jai Alai, 221 So.2d 777 (Fla. 4th DCA 1969), cert. discharged, 235 So.2d 294 (Fla.1970), which we deem to be in conflict with this decision.

AFFIRMED. Stevens v. Jefferson, 408 So.2d 634 (Fla. 5th DCA 1981).. The order of affirmance is not an opinion in the sense of a discussion, analysis, or statement of the principles of law applied in reaching the decision. Therefore it cannot be and is not in express and direct conflict with another decision. Art. Y, § 3(b)(3), Fla. Const. Nor does the statement of the district court judges that they “deem” certain decisions “to be in conflict with” their decision in this case suffice as a certification of direct conflict. Art. V, § 3(b)(4), Fla. Const. Therefore, we do not have jurisdiction.

The district court’s order merely cites several cases and suggests that some contrary authority exists. It does not contain any statement of law capable of causing confusion or disharmony in the law of the state. Therefore it is not the kind of decision which article V, section 3(b)(3) contemplates as being reviewable by this Court. See Dodi Publishing Co. v. Editorial America, S.A., 385 So.2d 1369 (Fla.1980); Jenkins v. State, 385 So.2d 1356 (Fla.1980). The mere suggestion by the district court that contrary authority exists, without discussing any points of law, should not be deemed sufficient to create express and direct conflict. State Farm Mutual Automobile Insurance Co. v. Lawrence, 401 So.2d 1326 (Fla.1981) (Boyd, J., dissenting).

The majority opinion uses the present case as an opportunity to issue some pronouncements on the law of a tavern keeper’s liability even though the district court, in affirming the judgment, did not even find that the case was sufficiently important, complex, or difficult as to require the writing of an opinion. The 1980 amendment to article V was the product of a determination by the legislature and the people that this Court should not be able to review any decision it pleases. This is not the kind of case that calls for the expenditure of our judicial labor when the time and attention of this Court has become such a scarce commodity.

For the foregoing reasons I would discharge the petition for review as improvidently granted. I dissent.

        Stevens v. Jefferson, 408 So.2d 634 (Fla. 5th DCA 1981).


author: SHAW, Justice. EHRLICH, Justice, McDONALD, Justice,

text:
    Donald Roberts BOOTH, Petitioner, v. STATE of Florida, Respondent. Bertram Mark SCHWARTZ, Petitioner, v. STATE of Florida, Respondent.
    Nos. 62561, 62559.
    Supreme Court of Florida.
    June 9, 1983.
    Rehearing Denied Sept. 16, 1983.
    John D. O’Brien, Panama City, for Booth; and John S. Berk, Fort Lauderdale, for Schwartz.

      Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
   SHAW, Justice.

Petitioners seek review of a district court of appeal decision, State v. Booth, 418 So.2d 385 (Fla. 1st DCA 1982), certifying a question to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioners were arrested at the Pensacola Municipal Airport and charged by both the United States and the State of Florida with illegal possession of marijuana. The federal indictments contained four counts: Counts I and II alleged conspiracy to possess marijuana in excess of one thousand pounds and possession with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1980), and 18 U.S.C. § 2 (1980); Counts III and IY alleged conspiracy to import marijuana in excess of one thousand pounds and importation of same, in violation of 21 U.S.C. §§ 952 and 963 (1980), and 18 U.S.C. § 2 (1980).

The state information contained three counts: Count I alleged possession of more than twenty grams of cannabis in violation of section 893.13(l)(e), Florida Statutes (Supp.1980); Count II alleged possession with intent to sell, in violation of section 893.13(l)(a), Florida Statutes (Supp.1980); Count III alleged importation of more than one hundred pounds of cannabis, in violation of section 893.135(l)(a), Florida Statutes (Supp.1980).

Petitioners were tried and adjudicated guilty as charged on all four counts of the federal indictment in the United States District Court. Petitioner Booth was sentenced to two twelve-year and two five-year terms of imprisonment to run concurrently and fined $75,000. Petitioner Schwartz was sentenced to two fifteen-year and two five-year terms of imprisonment to run concurrently and fined $100,000.

Petitioners subsequently filed motions to dismiss the state information on double jeopardy grounds. The trial court granted the motions, reasoning that the interests to be protected and the penalties to be imposed in the state and federal proceedings were substantially similar. In reversing, the district court adhered to the doctrine of dual sovereignty and certified the following question to this Court:

ARE SUCCESSIVE PROSECUTIONS IN FEDERAL AND FLORIDA COURTS ON CHARGES ARISING OUT OF THE SAME TRANSACTION INVOLVING VIOLATIONS OF DRUG LAWS OF BOTH SOVEREIGNS BARRED BY DOUBLE JEOPARDY?

418 So.2d at 387.

Our answer is no. We are not unaware that a number of states, although continuing to recognize the doctrine of dual sovereignty, have declined to permit a state prosecution following a federal prosecution for the same offense where the state and federal interests are identical and are served by the single federal prosecution. People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). The petitioners ask that we join these states by holding that the State of Florida cannot prosecute when there has been a federal prosecution growing out of the same facts, and the interests to be protected and the penalties to be imposed in the federal and state prosecutions are substantially similar. We decline to do so. In allowing prosecutorial discretion in such situations, we perceive no violation of constitutional guarantees against double jeopardy and accordingly adhere to the doctrine of dual sovereignty established by federal and Florida case law. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Strobhar v. State, 55 Fla. 167, 47 So. 4 (1908). We recognize that there may well be sound policy reasons for the adoption of a prosecutorial policy by the state executive branch similar to the federal policy, whereby the state would not bring a state prosecution following a federal prosecution, absent a compelling state interest. Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). Nevertheless, such a policy is not constitutionally mandated by either the United States or Florida Constitutions, and we decline to establish or formulate prosecutorial policy under the guise of constitutional pronouncements. Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977). The result of our decision is to allow prosecutorial discretion by the state following a federal prosecution for the same offense.

The decision and opinion of the district court is approved.

It is so ordered.

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

EHRLICH, J., concurs with an opinion, with which BOYD, J., concurs.

McDONALD, J., dissents with an opinion, with which ADKINS, J., concurs.

EHRLICH, Justice,

concurring.

I agree with the majority that nothing in the provisions of either the Florida or the United States Constitutions supports a conclusion that double jeopardy precludes the state from prosecution on charges for which the federal courts have already prosecuted, convicted and sentenced an individual. The federal rule against duplication of state and federal prosecutions, the so-called Petite doctrine, Petite v. United States, 361 U.S. 529, 531, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), is not based on constitutional imperatives, but is rather an agency policy formulated by the Justice Department.

Because in Florida’s scheme of governmental organization there is no agency analogous to the federal Justice Department with power to formulate policy binding on all state attorneys, the exercise of prosecutorial discretion must be left to the state attorneys in the individual judicial circuits. Thus, on this issue there can be no guarantee of statewide uniformity or continuity unless legislative action is taken. In light of the strong policy arguments for the adoption of a limitation on duplication of prosecutions — especially the deleterious effect the prospect of inevitable future imprisonment may have on the individual’s motivation to cooperate with rehabilitative procedures — I would recommend to the legislature the consideration of the Petite doctrine for possible adaptation to and implementation in Florida law.

BOYD, J., concurs.

McDONALD, Justice,

dissenting.

Relying on Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), the majority holds that successive federal and state prosecutions for the same offense are not barred by the double jeopardy clauses of either the United States or Florida Constitutions. I dissent regarding the majority’s interpretation of the scope of Florida’s double jeopardy clause.

Bartkus was predicated on a “dual sovereignty” analysis, but decisions rendered by the United States Supreme Court after Bartkus tend to erode the foundation of Bartkus’ “dual sovereignty” doctrine. In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Court did what it had refused to do ten years earlier in Bartkus; it held the fifth amendment to be a fundamental right and, consequently, applicable to the states through the fourteenth amendment. In Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), the Court rejected the dual sovereignty doctrine; evidence obtained by state authorities during a search, which if conducted by federal officers would have violated the fourth amendment, is also excluded at the federal level. In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the Court again refused to apply the dual sovereignty doctrine, holding that a state may not constitutionally compel a witness to testify when that testimony might be used against him in a federal prosecution.

Although cases such as these make the present validity of the dual sovereignty doctrine as applied to the fifth amendment questionable, Bartkus has not been expressly overruled. However, the Court in Bart-kus specifically recognized that the state is in the best position to determine whether its individual statutes or constitutional provisions bar successive prosecutions based upon an “understanding of the scope of the bar that has been historically granted in [that] State.” 359 U.S. at 138, 79 S.Ct. at 686. The question is what is the scope of Florida’s double jeopardy clause in this situation.

I consider first whether a somewhat modified dual sovereignty doctrine approach, referred to in the majority opinion, satisfies the requirements of Florida’s double jeopardy clause. In Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971), the Supreme Court of Pennsylvania held that the state’s double jeopardy clause bars a second prosecution and imposition of punishment for the same offense unless it appears from the record that the interests of Pennsylvania and of the jurisdiction which initially prosecuted and imposed punishment are substantially different. The use of “interest analysis” by the court in Mills is based on the court’s understanding of the “dual sovereignty” doctrine of Bartkus.

When one examines the “dual sovereignty” doctrine as it applies to the double jeopardy clause, we are really involved in a balancing process, whereby we place the interests of the two sovereigns on one side of the judicial scale, and on the other side we place the interest of the individual to be free from twice being prosecuted and punished for the same offense.

447 Pa. at 169, 286 A.2d at 640-41. The Mills court then stated that the problem with Bartkus was its failure to recognize that the two sovereigns might have the same interests and, more importantly, that Bartkus failed to examine the interest of the individual.

The interest analysis approach developed in Mills limits the dual sovereignty doctrine of Bartkus. Bartkus, based on principles of federalism, holds that the fact that two different sovereigns are involved is sufficient to prevent the protections of double jeopardy from barring a subsequent prosecution. Mills limits the application of the dual sovereignty doctrine as a bar to the double jeopardy defense to situations in which the sovereigns’ interests are substantially different.

In People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976), the Supreme Court of Michigan further developed the “interest analysis” involved in determining whether the sovereigns’ interests are substantially different. The court set out factors which should be considered in making this determination:

[W]hether the maximum penalties of the statutes involved are greatly disparate, whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interests in securing a conviction, and whether the differences in the statutes are merely jurisdictional or are more substantive.

398 Mich, at 461, 247 N.W.2d at 871.

The interest analysis of Mills and Cooper conflicts with the historical focus and purpose of Florida’s double jeopardy clause. In Mills the court purports to balance the interests of the two sovereigns involved against the interest of the individual in not being placed in jeopardy twice. Despite the fact that the court discusses the interests of the individual, the focus of interest analysis is solely on the interests of the sovereigns involved. If the sovereigns’ interests are determined to be substantially different, a defense based on double jeopardy is entirely foreclosed. Thus the similarity of interests of the sovereigns is dispositive.

By contrast, Florida’s double jeopardy clause has historically focused upon the protection of the rights of the individual. The purpose of the double jeopardy clause is clearly set forth in this Court’s decision in Bizzeil v. State, 71 So.2d 735, 738 (Fla.1954):

The right to be placed in jeopardy only once for the same offense is guaranteed to every citizen. It is not for the purpose of protecting criminals, but is to protect the citizens against the once-existing power of the State, or the sovereign, to continue prosecutions and trials of the same person for the same offense until a conviction is obtained, or the defendant is ruined by the time, expenses and annoyance of such successive prosecutions.... These rights curtail and restrain the power of the State. It is more important to preserve them, even though at times a guilty man may go free, than it is to obtain a conviction by ignoring or violating them. The end does not justify the means.

The dual sovereignty doctrine’s emphasis on the sovereign in prosecution conflicts with the emphasis of the double jeopardy clauses on protecting the individual.

Finally, the purpose of Florida’s double jeopardy clause can only be achieved by barring successive prosecutions by two sovereigns for the same offense. In State ex rel. Alcala v. Grayson, 156 Fla. 435, 23 So.2d 484 (1945), this Court recognized that the “right to plead former jeopardy was sanctioned by the ancient common law and has long been guaranteed by our constitution.” 156 Fla. at 436, 23 So.2d at 484.

Mr. Justice Black’s dissenting opinion in Bartkus traces the common law foundations and protections of double jeopardy.

[T]he basic and recurring theme has always simply been that it is wrong for a man to “be brought into Danger for the same Offense more than once.” ... If double punishment is feared, it hurts no less for two “Sovereigns” to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less when the power of State and Federal Governments is brought to bear on one man in two trials, than when one of these “Sovereigns” proceeds alone. In each case, inescapably, a man is forced to face danger twice for the same conduct.

359 U.S. at 155, 79 S.Ct. at 697-98 (footnote omitted). This Court has long held that the protection of the individual is so fundamental that double jeopardy “does not depend upon the result, or probable result, of the trial, but rather upon the fact of trial.” Grayson, 156 Fla. at 437, 23 So.2d at 484. Because the protection against double jeopardy is so fundamental, I would interpret article I, section 9 of the Florida Constitution to proscribe a successive Florida prosecution when the elements necessary to prove the state’s case are no different than those necessary to prove the government’s case in a United States prosecution.

ADKINS, J., concurs.

       The test to determine “whether two charges are separate and distinct and may be each prosecuted is whether one of the charges requires proof of an additional fact which the other does not." State v. Shaw, 219 So.2d 49, 51 (Fla. 2d DCA 1969) (emphasis in original).


author: BOYD, Justice. ADKINS, Justice,

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. Donald HANFT, Respondent.
    No. 61224.
    Supreme Court of Florida.
    June 16, 1983.
    Rehearing Denied Sept. 8, 1983.

      Dana G. Bradford II of Gallagher, Bau-mer, Mikals & Bradford, Jacksonville, for petitioner.
    Arnold R. Ginsberg of Horton, Perse and Ginsberg, Miami, and Krongold & Bass, Coral Gables, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of a decision of a district court of appeal, Hanft v. Southern Bell Telephone & Telegraph Co., 402 So.2d 453 (Fla. 3d DCA 1981). On the question of whether punitive damages may be awarded for the grossly negligent breach of a contractual duty, the decision below is in conflict with Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla. 2d DCA 1968), and other decisions. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Respondent Dr. Donald Hanft brought this action against Southern Bell Telephone and Telegraph Company seeking compensatory and punitive damages. The basis of the complaint was the allegation that Southern Bell had agreed to list Dr. Hanft as a physician and as a specialist in obstetrics and gynecology in the Yellow Pages of its telephone directory and that his name was omitted from such lists for two consecutive years.

The complaint was set forth in three counts. Count one alleged that Southern Bell had breached its promise to list Dr. Hanft and his correct address and telephone number in the two lists in the Yellow Pages of the 1973-74 telephone directory, and claimed damages as a result of the breach. Count two alleged that Dr. Hanft was omitted from these lists again when the defendant published its 1974-75 directory, and again claimed compensatory damages. Count three alleged that, since Dr. Hanft had communicated with Southérn Bell numerous times concerning his desire to be listed in the 1974-75 Yellow Pages, and had been assured that the proper listing would be published, the second breach constituted gross negligence. Count three demanded punitive damages.

Southern Bell filed an answer containing a general denial and raising four affirmative defenses: (1) statutory invalidity of the oral contract; (2) lack of consideration; (3) a disclaimer, published in Southern Bell’s directories, negating liability; and (4) compromise and settlement. After plaintiff’s counsel had presented Dr. Hanft’s evidence and rested, defense counsel moved for a directed verdict. The. trial judge found that plaintiff had not proven his consequential damages with the legally required specificity and directed a verdict for the defendant on counts one and two. The trial judge. further found that there had been no proof of willful, wanton, or malicious conduct by defendant towards the plaintiff, and so directed a verdict for defendant on count three as well. When defense counsel raised the question of whether counts one and two might still go to the jury for a determination that a legal wrong had taken place and for an award of nominal damages, the judge ruled that even nominal damages were precluded because, he found, Dr. Hanft had accepted a settlement from Southern Bell in the form of two years of free telephone service.

On appeal, the district court reversed, holding that the defendant’s motion for a directed verdict as to counts one and two, based upon the failure to adequately prove compensatory damages, had inherently conceded “that there was an invasion of the plaintiff’s legal rights.” 402 So.2d at 455-56. The district court further concluded that the evidence was in conflict on the issue of compromise and settlement, so that counts one and two should have been submitted to the jury to consider nominal damages. Dr. Hanft apparently did not appeal the trial court’s rulings regarding compensatory damages under counts one and two.

The district court also reversed the order directing a verdict as to the claim for punitive damages, holding that plaintiff’s evidence should have gone to the jury for determination of whether the defendant’s conduct was so willful, wanton, malicious or outrageous as to justify punitive damages. Petitioner Southern Bell contends that this decision was erroneous.

In general, punitive damages may not be awarded in cases based upon breach of contract. In order for punitive damages to be recoverable in such a case, the breach of contract must be attended by some additional wrongful conduct amounting to an independent tort. Lewis v. Guthartz, 428 So.2d 222 (Fla.1982). For punitive damages to be recoverable in a contract case, an intentional wrong, willful or wanton misconduct, or culpable negligence, the extent of which amounts to an independent tort, must be shown. Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976); American International Land Corp. v. Hanna, 323 So.2d 567 (Fla.1975); Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957). Once an independent tort is established, then then question of whether punitive damages are proper is decided under principles traditionally applicable to such question in tort cases. Willful, wanton, malicious, or outrageous misconduct must be shown. See, e.g., Ross v. Gore, 48 So.2d 412 (Fla.1950); Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Dr. P. Phillips & Sons, Inc. v. Kilgore, 152 Fla. 578, 12 So.2d 465 (1943); Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla. 2d DCA 1968).

Although couched in terms of negligence, the first two counts of Dr. Hanft’s complaint in essence stated a cause of action for breach of contract. In order to prevail on the claim, the plaintiff needed to prove, among other things, that the defendant failed to fulfill its promises to list Dr. Hanft in the Yellow Pages. It was immaterial to the breach of contract action whether the breach was committed intentionally, negligently, or because of circumstances entirely beyond the defendant’s control. Although the complaint alleged that in failing to include Dr. Hanft’s name the second time the defendant was grossly negligent, there was no evidence presented showing the manner or method of Southern Bell’s employees’ conduct causing the failure. There was no proof that the breach of contract was attended by some conduct amounting to an independent tort.

The plaintiff’s case consisted of his own testimony and the testimony of three of Southern Bell’s employees. Dr. Hanft testified that after his name did not appear in the Yellow Pages as promised, he communicated with several of Southern Bell’s employees numerous times in an effort to assure that he would be properly listed the following year. Southern Bell’s district manager testified that his office communicated with the directory department which kept a galley reprint of the new directory listings. The directory department supervisor checked the lists and confirmed that Dr. Hanft’s name and the proper information would be listed in the next edition of the directory, including the Yellow Pages. None of the witnesses could explain precisely how Dr. Hanft’s name was omitted from the Yellow Pages the second time.

Far from showing that Southern Bell’s failure to perform was caused by willful, wanton, malicious, or outrageous conduct, the plaintiff’s own evidence showed that defendant’s employees made special efforts to ensure that Dr. Hanft’s name would not be omitted a second time. That the efforts were ineffective and that the failure could not be explained are not enough to establish negligent conduct so gross as to justify the imputation of malice. Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957), upon which the court below relied, is distinguishable. There it was found that the defendant’s complete lack of response to the plaintiff’s demand for the promised service was the equivalent of a willful and grossly unreasonable refusal to perform. Here, in contrast, the evidence showed that efforts were made. There was not such a complete want of care as to legally constitute an intentional invasion of the plaintiff’s rights. The district court’s conclusion to the contrary was error.

That portion of the district court’s decision that reversed the trial court’s directed verdict on punitive damages is quashed. The other portion of the district court’s decision, holding that the breach of contract counts should have gone to the jury on nominal damages, has not been challenged in this proceeding. The case is remanded with directions that the trial court’s judgment on punitive damages be reinstated.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

In Griffith v. Shamrock Village Inc., 94 So.2d 854, 858 (Fla.1957), the Court held that malice could be imputed to a defendant from “a want of slight care or attention by defendant to the duty it had assumed toward plaintiff.”

Griffith is the landmark case on the award of punitive damages for breach of contract. In Griffith a clerk of the defendant landlord received a telephone call from the brother of the plaintiff. The clerk responded that the plaintiff had checked out and left no forwarding address. All the clerk had to do was turn his head to examine a revolving file placed nearby for the registration cards bearing the names of tenants residing there, and he would have found that the plaintiff was a resident. As a consequence of the clerk’s action, plaintiff was never informed of, and therefore missed, his brother’s wedding. The Court held that there was evidence on which the jury could have found that there was an extreme want of care by the defendant to the duty it had assumed toward the plaintiff from which the jury could impute malice to the defendant and assess punitive damages against him.

The plaintiff’s complaint alleged that the defendant failed to exercise ordinary care and diligence when it omitted the plaintiff from the yellow pages for two consecutive years. Additionally, plaintiff alleged that the defendant was grossly negligent when it omitted the defendant for the second year of the two-year period. Since the trial court entered a directed verdict for the defendant, the district court was required to view the evidence in the light most favorable to the plaintiff. Viewing the evidence in this manner, the following facts were established: After the defendant’s error in omitting plaintiff from the yellow pages for the 1973-74 directory, the plaintiff, aware of the impact a continued omission would have on his business and livelihood, contacted the defendant’s business management personnel repeatedly throughout the following year in hopes of assuring that the mistake would not occur again. In August of 1974, prior to distribution of the yellow pages to the public, the plaintiff found that he had been omitted a second time. Upon contacting the defendant’s business office manager, the plaintiff was informed that nothing could be done to rectify the situation and the directory was subsequently distributed to the public without the plaintiff’s listing.

The plaintiff contends that the facts could support a jury finding that the defendant evidenced an entire want of care or want of slight care or attention to the duty owed the plaintiff, or great indifference to his rights. I agree. From such a finding, the jury could have imputed malice to the defendant and supported a verdict of punitive damages. Accordingly, the court should have submitted the issue of punitive damages to the jury. Where claims for punitive damages are made, the respective provinces of the court and jury are well defined. The court is to decide at the close of the evidence whether there is a legal basis for recovery of punitive damages shown by any interpretation of the evidence favorable to the plaintiff. Wackenhut Corp. v. Canty 359 So.2d 430, 435 (Fla.1978); Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (Fla.1936). Once the court permits the issue to go to the jury and instructs the jury on the applicable law, the jury must determine whether the elements are present to warrant an award of punitive damages in light of all the evidence. The decision of the district court should be approved.


author: PER CURIAM. BOYD, Justice,

text:
    David Lee HAWKINS, Appellant, v. STATE of Florida, Appellee.
    No. 61936.
    Supreme Court of Florida.
    July 14, 1983.
    Rehearing Denied Sept. 9, 1983.

      Jerry Hill, Public Defender and W.C. McLain, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

The appellant, David Lee Hawkins, was convicted of two counts of first-degree felony murder, one count of robbery, and two counts of burglary. The jury failed to recommend the imposition of death sentences for the murder convictions. The trial judge, however, sentenced appellant to death for each of the murder convictions and also to thirty years imprisonment for robbery and to thirty years imprisonment for one count of burglary, these last two sentences to run consecutively. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

We affirm the convictions for first-degree felony murder, but reduce the death sentences to life imprisonment without possibility for parole for twenty-five years. We affirm the conviction for robbery, but vacate the sentence because the robbery was the underlying felony for the first-degree murder convictions. We find that each of the burglary counts charged the same crime; therefore, we affirm only the conviction and sentence for the first burglary count and reverse as to the conviction for the second count.

The evidence established that the victims, Robert Schreckengost and Chris Musick, were brothers staying alone at their parents’ home in Golden Gate, a sparsely-developed subdivision near Naples. A sheriff’s deputy was summoned tox the area by a neighbor who heard a large truck stop near the Schreckengost residence. The deputy found appellant and David Troedel at the truck. In answer to the deputy’s questions, appellant stated that the truck had stalled and that he and Troedel had gone to the Schreckengost home for help, but had returned to the truck when they found no one home.

Two automatic pistols were found in the truck, a .25 caliber and a .22 caliber. A number of other items, including an orange towel and stereo speakers, were also in the truck. Hawkins had in his possession some foreign coins later identified as belonging to the Schreckengosts. Several rifles and a pillowcase filled with jewelry and money, all belonging to the Schreckengosts, were found in a wooded area between the house and the truck, as were two pairs of rubber gloves and a knife in a leather case bearing the initials “D.T.”

The victims were found in the master bedroom of the house. Musick had been shot twice in the head and was dead; Schreckengost was still alive but had multiple gunshot wounds in the head and legs. Both .25 caliber and .22 caliber bullets were found on the scene and in the victims’ bodies. Evidence of a neutron activation test conducted on Hawkins and Troedel was admitted, which established that gunpowder residue was found on the hands of both men, though a much higher concentration was found on Troedel. The testimony also reflected that Hawkins could have gotten the residue on his hands without his touching the gun, by being in the room when the gun was fired. The state introduced the testimony of a witness who stated that he overheard a conversation between Hawkins and Troedel at a bar early on the evening of the murders and that Hawkins was talking about guns and about wanting to “blow away” two people in Golden Gate.

Hawkins gave a statement to the police a few hours after his arrest, and he also testified in his own defense at trial. His testimony and statement reflected that he knew Schreckengost and Troedel slightly. He admitted accompanying Troedel to the Schreckengost home, but claimed that when he discovered Troedel’s intention to rob Schreckengost and saw that Troedel had a gun, he was afraid and simply followed Troedel’s orders to collect money and jewelry. He further testified that he did not know his codefendant, Troedel, intended to commit murder and that he was afraid Troedel would kill him if he intervened. He testified that Troedel shot both victims.

The jury was instructed that it could find the defendant guilty of premeditated murder or felony murder with regard to each of the victims. The jury returned a verdict form finding Hawkins guilty of felony murder and identifying the felony as robbery. The jury expressly omitted finding appellant guilty of premeditated murder. The jury did not recommend the imposition of the death sentence because six jurors believed that a life sentence should be imposed.

At the sentencing hearing before the trial judge, the appellant again insisted he did not kill the victims, but that Troedel did. Appellant offered into evidence the results of a polygraph test that confirmed he was telling the truth on this point. The polygraph report was admitted into evidence without objection. The trial judge, in imposing the death sentence, relied in part on the evidence that Hawkins, early -on the evening of the murders, had stated that he wanted to go out to Golden Gate and “blow away a couple of dudes.”

The codefendant, Troedel, was tried separately and convicted of first-degree murder. The death sentence has been imposed, and Troedel’s case is pending review in this Court.

On the issue of his convictions, Hawkins asserts that none of his convictions are proper because he conclusively established that he acted under duress exerted by his codefendant, Troedel. We disagree. The evidence was clearly sufficient for the jury to conclude that Hawkins acted voluntarily in participating in the burglary and robbery and the felony murders. In this state, when a person voluntarily participates in a robbery, that person is guilty of first-degree felony murder when a killing occurs during the commission of that robbery even though he did not actually do the killing because “the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felon.” Enmund v. State, 399 So.2d 1362, 1369 (Fla.1981) (quoting Adams v. State, 341 So.2d 765, 768-69 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977)), rev’d on other grounds, -U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); § 782.04(1)(a), Fla.Stat. (1979). The felony murder convictions were supported by the evidence and are proper.

Hawkins next contends that he should not have been found guilty of both burglary counts since each count charged the same crime, although one was grounded in an assault committed during the burglary and the other in carrying a deadly weapon. We agree with this assertion and reverse Hawkins’ conviction on one charge of burglary because the two counts constituted the same statutory offense under section 810.02, Florida Statutes (1979). We note that the trial judge did not sentence appellant for the second burglary count “because the court is considering Count V [burglary while armed with a deadly weapon] as the same charge as in Count IV [burglary during which an assault was committed] for which it has already imposed sentence.”

We also find, as conceded by the state, that the sentence for robbery was improper because the robbery was the underlying felony specified by the jury as justifying the conviction for the first-degree murder. Appellant cannot be sentenced for both robbery and the first-degree murder under the rule we established in State v. Hegstrom, 401 So.2d 1343 (Fla. 1981). See also Faison v. State, 426 So.2d 963 (Fla.1983). The robbery conviction is proper, but we vacate the separate sentence for robbery.

In the sentencing phase, the critical issue concerns the trial judge’s imposition of the death sentence when the jury did not recommend death. There was no recommendation for the imposition of death because six jurors recommended the imposition of a life sentence. We have consistently held that a jury’s sentencing recommendation is entitled to great weight and that a trial judge may refuse to accept the jury’s life recommendation only when the facts are “so clear and convincing that virtually no reasonable person could differ” on the propriety of the death sentence. Tedder v. State, 322 So.2d 908, 910 (Fla.1975). See also Walsh v. State, 418 So.2d 1000 (Fla. 1982), and cases cited therein. This standard necessitates that we determine whether there is a reasonable basis for the jury’s recommendation of life imprisonment under the facts of each case. Barfield v. State, 402 So.2d 377 (Fla.1981), and cases cited therein.

The jury in this case found Hawkins guilty of first-degree felony murder committed during a robbery and expressly rejected a finding of premeditated murder. The jury also heard Hawkins’ testimony that Troedel killed the victims. It knew that this testimony appeared to be corroborated by the evidence that a greater concentration of gunpowder residue was found on Troedel’s hands than on Hawkins’, and that the amount of gunpowder residue on Hawkins’ hands was consistent with his not touching a firearm but simply being in the room at the time of the killing. Hawkins also put on testimony of his character, his relative youth, and his lack of a significant history of prior criminal activity. The jury verdict’s express rejection of premeditated murder is consistent with the conclusion that Troedel was the triggerman, as is the polygraph evidence submitted to the trial judge without objection. We conclude that, on the basis of this record, there was a reasonable basis for the jury not to recommend the imposition of the death sentence and agree that this is not a case in which the death sentence should have been imposed.

For the reasons expressed, we approve the convictions for first-degree felony murder, robbery, and one count of burglary. The death sentences are vacated, and this cause is remanded to the trial court for the imposition of life sentences without the possibility of parole for twenty-five years. We also vacate the thirty-year sentence for robbery, but approve the thirty-year sentence for burglary.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the decision of the Court affirming appellant’s convictions of two counts of murder in the first degree, robbery, and burglary. I dissent, however, from that portion of the Court’s decision that overturns the trial court’s determination that death is the appropriate punishment in this double murder case.

The trial judge in essence found from the evidence that the murders were committed in the course of appellant’s participation in the inherently violent and dangerous felonies of robbery and burglary and were thus motivated in part by pecuniary gain; that the murders were committed so that appellant and his accomplice might avoid detection and arrest for their crimes of robbery and burglary; that the murder of one of the victims was especially heinous, atrocious, or cruel in that he was shot numerous times in various parts of his body and died slowly, gasping for breath; and that the murders were committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification in that appellant and his accomplice knew in advance that two murders would result from their activities on the night of the crimes. The court found no mitigating circumstances.

The jury failed to recommend a sentence of death by majority vote and therefore by law the jury recommendation must be taken as advising a sentence of life imprisonment without parole for twenty-five years. But the trial judge’s function is to assure that consistency is maintained in the sentencing process and this is why our law gives the judge the power to override the jury’s recommendation after giving it due consideration.

It is true that verdict forms returned at the guilt phase of the trial indicated that the jury found appellant guilty of the murders on the theory of felony murder rather than premeditation, perhaps because of uncertainty concerning which of the perpetrators was the dominant force in this spasm of murderous activity. Such specifications of the theory of guilt by the jury are not uniformly used, and nothing in our capital felony sentencing law prohibits a death sentence purely because the jury indicates that the capital felony conviction rests on the felony murder theory. Here two guns were used. Bullets from both guns were found in the bodies of both victims. A smaller amount of chemical residue was found on the hands of appellant than on Troedel’s hands, but both men were clearly present at the shooting. Perhaps appellant wore the rubber gloves introduced into evidence. For well-established reasons, appellant’s exculpatory polygraph examination should be given little weight and probably should have been excluded by the trial court. There was evidence that appellant planned these murders. It is interesting to note that codefendant Troedel at his separate trial used the same strategy of defense and tried to place the entire blame on Hawkins as planner and dominant force in the criminal scheme. I conclude that both men were equally responsible for the murders of the two young victims regardless of who actually fired the fatal shots. The appropriate penalty under the law is death.

ADKINS, J., concurs.


text:
    THE FLORIDA BAR, Complainant, v. John Roger SNOW, Respondent.
    No. 60297.
    Supreme Court of Florida.
    July 14, 1983.
    Rehearing Denied Sept. 8, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, for complainant.

      Louis M. Jepeway, Jr. of Jepeway & Jepeway, Miami, for respondent.
   PER CURIAM.

In this lawyer disciplinary proceeding, the respondent, John R. Snow, was charged with obtaining evidence for clients he represented by the use of false representations. The referee, in a contested factual dispute, found respondent guilty as charged and recommended a six-month suspension. The respondent has petitioned for review. We have jurisdiction, article Y, section 15, Florida Constitution, and we approve the referee’s report.

The referee, after hearing conflicting testimony from the respondent and the complaining witness, found:

[T]hat the Respondent, in order to secure evidence for clients he represented, secured a taped telephone conversation with the adverse party by the use of false representations, by intentionally concealing from such adverse party his intended use thereof and intentionally misleading such adverse party as to the intended use thereof.

The referee determined that respondent had violated Florida Bar Integration Rule, article XI, Rule 11.02(3)(a), and Disciplinary Rules 1-102(A)(4), (5) and (6). Taking into consideration a public reprimand given the respondent in a prior proceeding, the referee recommended that respondent be suspended from the practice of law for six months and thereafter until he proves his rehabilitation. He also recommended that respondent be assessed costs of $975.95.

In his petition for review, respondent challenges both the referee’s finding of guilt and the recommended discipline. Regarding the finding of guilt, respondent contends that the Bar failed to prove the charges against him by clear and convincing evidence. He contends that the uncorroborated testimony of the complaining witness was evasive and inconclusive. Respondent raises what is essentially a credibility issue, asserting that the referee should have believed him rather than the complaining witness. We reject this argument and hold that there is sufficient competent evidence to support the referee’s determination of guilt.

Respondent also challenges the referee’s recommendation of a six-month suspension, asserting that the maximum discipline that would be proper in this case is a public reprimand. In making his recommendation, the referee took into consideration the fact that respondent had been disciplined previously.

The prior action, in which the same referee presided, also involved charges of dishonest conduct and misrepresentations. The Florida Bar v. Snow, 397 So.2d 295 (Fla. 1981). The prior action arose when the respondent, in attempting to effect a favorable settlement in a civil case, represented to an adversary that, in return for the settlement of the civil case, his clients would cooperate in furnishing information beneficial to the other party in a related criminal case. Additionally, respondent obtained affidavits from two individuals in an attempt to disqualify a judge presiding over one of respondent’s cases. These affidavits contained information of which the affiants had no personal knowledge, and respondent knew that some of the statements contained in the affidavits were deceitful and false. Respondent’s unblemished record, his comparative inexperience, and his apparent naivete as to the gravity of his conduct prompted the referee to rec-omménd only a public reprimand and the imposition of the costs of the proceedings.

We conclude that the referee was fully warranted in recommending a six-month suspension in the instant case. In fact, the circumstances presented could reasonably justify a more severe punishment.

For the reasons expressed, we affirm the recommended discipline and, accordingly, John R. Snow is hereby suspended for a period of six months and thereafter until he proves his rehabilitation. The suspension shall be effective on the thirtieth day following the filing of this opinion, thereby giving respondent adequate time to close out his practice and take the necessary steps to protect his clients.

The respondent shall pay the cost of these proceedings in the amount of $975.95.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.