text:
    Darrell BURTTRAM v. STATE.
    8 Div. 6.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    John W. Caylor, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

This is an appeal from an adjudication of delinquency against Darrell Burttram involving the theft of a bicycle. The Juvenile Court sentenced Burttram to serve eight days in the Robert Reaves Center for Children and placed him on probation for one year.

On appeal, Burttram argues that his “conviction” is based on the unsupported and uncorroborated testimony of a co-conspirator and co-defendant and that there was insufficient evidence before the juvenile court to support a finding of delinquency beyond a reasonable doubt.

An adjudication of delinquency is not considered to be a conviction. Alabama Code Section 12-15-72(a) (1975). However, the quantum of evidence required to establish the guilt of the juvenile in a delinquency proceeding is “proof beyond a reasonable doubt, based upon competent, material and relevant evidence.” Section 12-15-65(d). A.R.Juv.P. 25(A) further provides:

“If the allegations of the petition are denied, the court shall direct that testimony of witnesses be taken. The conduct of the hearing shall be consistent with legal and due process requirements and shall proceed generally in a manner similar to the trial of a civil action before the court sitting without a jury, except that the child may not be compelled to be a witness.”

Here, we need not decide whether or not the rule requiring corroboration of accomplice testimony to support a criminal conviction (Alabama Code Section 12-21-222 (1975)) applies to a juvenile proceeding wherein the child is sought to be adjudicated a delinquent. Courts have split on the question of whether the requirement of corroboration should also be imposed in juvenile cases. Annot. 43 A.L.R.2d 1128, Section 5 (1955); IJA-ABA Joint Commission On Juvenile Justice Standards, Adjudication Section 4.2 (1980) (recommending that evidentiary limitations in juvenile cases should be based entirely upon a jurisdiction’s criminal rules of evidence). A strong argument can be made that the corroboration rule should apply in juvenile delinquency determinations since many of the evidentiary limitations in criminal cases are statutorily imposed in juvenile cases. Section 12-15-66. Our Supreme Court has held that a revocation of probation, Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), or the transfer of a juvenile to the criminal division of circuit court for treatment as an adult, Vincent v. State, 349 So.2d 1145 (Ala.1977), may be based upon the uncorroborated testimony of an accomplice because both of those determinations involve a finding of probable cause and not guilt. In contrast, a delinquency hearing involves a determination of guilt. Although there is no constitutional requirement for the rule of corroboration in a delinquency adjudication, there are valid and compelling policy considerations for imposing such a limitation. Smith v. State, 525 P.2d 1251, 1253 (Okl.Cr.App.1974).

In this case, we need not answer this question because we find that the testimony of any alleged accomplice was corroborated by the evidence.

Anthony Lee Densmore testified that he, Darrell Burttram, and his brother, Curtis Burttram, “were talking about stealing the bike and me and Curtis was sitting behind the car and then we saw Darrell going by on the bike.” Densmore and Curtis ran after and caught up with Darrell, each “walked” the bike along the railroad tracks and the three boys made the decision to throw the bike “in the bushes.” The next day the three youths returned to the railroad tracks and disassembled the bicycle.

Cherry Thomas testified that someone stole her son’s bike. She corroborated Densmore’s testimony that Densmore, Curtis, and Darrell had been together the night the bike was stolen. She further stated that two weeks later the Burttram brothers brought her two wheels and the frame and wanted the reward which had been offered. Mrs. Thomas refused to pay the reward because she did not consider the parts “a whole bicycle.” The brothers left the parts with Mrs. Thomas.

Mrs. Thomas and the Burttram brothers lived in the same apartment complex. The night the bicycle was stolen, Jimmy Melton saw the Burttrams standing behind Mrs. Thomas’ townhouse, which was not in the vicinity of the Burttrams’ own apartment. At that time the bike was “sitting there”. After telling the boys to leave, Melton went to the store. Upon returning, he noticed the bike was not there.

Darrell Burttram presented an alibi defense. His father testified that both his sons were home watching television with him at the time the bicycle was stolen. Mrs. Burttram confirmed her husband’s testimony.

Huntsville Police Officer Hollis Lowery, Jr. worked part-time as a security guard at the Madison Garden Apartments. Called by the defense, his testimony indicated that he suspected the Burttram brothers of the theft because of their reputation in the community. He stated that they “were seen by myself within five to ten minutes of the time my bike was stolen, you know, by my apartment” and that was the reason he asked Densmore about the Burttrams. Lowery also stated that “other people” told him that “when something would go wrong they (Burttram boys) would have been seen in the area — things like that, ... out late at night when the laundry room would get broken into or cars.”

Sixteen-year-old Darrell Burttram testified in his own behalf that he and his brother were home watching T.V. on the night of the theft. He admitted possession of parts of a bicycle but claimed that Dens-more gave them to him and that he gave them to his cousin. He testified that the parts he and his brother gave Mrs. Thomas were “the bike parts that my brother had found in the woods.”

The contention that Darrell was convicted on the uncorroborated testimony of an accomplice was not raised in the juvenile court. In a post-conviction “motion for transcript” whereby Burttram requested the juvenile court judge to order the court reporter to prepare a transcript for appeal, it is alleged that the conviction “was in violation of the due process clause.” Nowhere in the record do we find any objection to the sufficiency of the evidence or the necessity of corroboration. “Whether there is an accomplice witness and whether he has or has not been corroborated must first be put to the trial judge.” Ward v. State, 376 So.2d 1112, 1115 (Ala.Cr.App.), cert. denied, Ex parte Ward, 376 So.2d 1117 (Ala.1979).

Even if the issue of corroboration were properly raised, and even if corroboration is required in a delinquency hearing, we find no error in the record. Sufficient corroboration of the accomplice Densmore is found in the circumstances that Burt-tram was placed in Densmore’s company near the scene and time of the crime and was found in possession of some of the recently stolen property. An accused’s entire conduct may be examined and surveyed for corroborating circumstances. Peoples v. State, 418 So.2d 935, 938-39 (Ala.Cr.App.1982). Although no single factor may be sufficient to corroborate the accomplice and tend to connect Darrell with the theft, the combination of facts and circumstances satisfies the requirement of corroboration. Staton v. State, 397 So.2d 227, 231 (Ala.Cr.App.), cert. denied, 397 So.2d 232 (Ala.1981). “Evidence of the defendant’s possession of property stolen at the time of the offense may also be sufficient to corroborate an accomplice’s testimony.” Andrews v. State, 370 So.2d 320, 322 (Ala.Cr.App.), cert. denied, Ex parte Andrews, 370 So.2d 323 (Ala.1979).

We find no error in the record. The judgment of the juvenile court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: SAM TAYLOR, Judge.

license: Public Domain

text:
    Charles KELLEY v. STATE.
    8 Div. 913.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Michael E. Sparkman, Hartselle, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant was convicted of violation of the Uniform Controlled Substances Act, § 20-2-70(a), Code of Alabama 1975, and sentenced to three years’ imprisonment. On appeal he contends that his own testimony that the marijuana was for his personal use alone should have brought him within the “personal use exception,” placing the burden of proof on the prosecution. We disagree.

Section 20-2-70(a), Code of Alabama 1975, states in pertinent part as follows:

“Except as authorized by this chapter, any person who possesses, ... controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony ... provided that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor ... provided further, that the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this subsection.”

The appellant was indicted under a four-court indictment, each charging him with possession of marijuana. The differences were that Count I stated, “... not for his personal use only;” Count II stated, “for purposes other than his personal use only;” Count III said, “... for the purpose of unlawful distribution to another;” and Count IV stated, “... for the purpose of unlawfully selling, furnishing, or giving away to another.”

The court in charging the jury, stated that “... in the final analysis, the defendant is charged by indictment with the offense of possession of marijuana for purposes other than for his personal use.” This of course is what the jury found to be the case by their verdict: guilty as charged.

In Barnett v. State, 373 So.2d 1226 (Ala. Cr.App.1979), we stated the following, speaking through Judge Bowen:

“In Alabama, in a prosecution for illegal possession of marijuana, there is a presumption that the possession is for other than personal use. The showing of possession for personal use is a defensive matter and the burden of proving this matter is upon the defendant. Lee v. State, 350 So.2d 743 (Ala.Cr.App.1977); Roberts v. State, 349 So.2d 89 (Ala.Cr. App.), cert. denied, 349 So.2d 94 (Ala. 1977); Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). The State need not prove that the possession of marijuana was not for personal use. Corbin v. State, 55 Ala.App. 33, 312 So.2d 604 (1975); Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801, 277 So.2d 389 (1973).”

See also, Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981), and other cases listed in the annotations to § 20-2-70, Code of Alabama 1975.

After the state has made out a prima facie case of possession of marijuana, then the defendant has the burden of proving possession for personal use. His evidence that the possession was for his personal use does not change the burden of proof, and the state is not required to present any rebuttal testimony.

No error appears to have been committed in this respect. Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willard J. HOOPER v. STATE.
    8 Div. 931.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Hartwell Alan Gargis of Gargis & Gar-gis, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Willard J. Hooper was convicted by a Colbert County jury of sexual abuse of his nine-year-old piece, in violation of Code of Alabama 1975, § 13A-6-66. The code reads in part:

“(a) a person commits the crime of sexual abuse in the first degree if:
“(3) he being sixteen years old or older, subjects another person to sexual contact who is less than twelve years old.”

The Code of Alabama 1975, § 13A-6-60 defines sexual contact as being:

“any touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desires of either party.”

I

Appellant contends that the trial court abused its discretion in that it permitted the state’s attorney to employ leading questions during his examination of the nine-year-old victim. It appears that the objections made to leading questions were made after the witness answered the questions. Thus, the issue is not preserved for appellate review. Berry v. State, 408 So.2d 548 (Ala.Cr.App.1981), cert. denied, 408 So.2d 551 (Ala.1982), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 453 (1982). A review of the cases indicates, however, that use of leading questions to examine a young victim of a sex crime is not uncommon and the practice is discretionary with the trial court. See Myhand v. State, 259 Ala. 415, 66 So.2d 544 (1953); Stewart v. State, 49 Ala.App. 679, 275 So.2d 358 (1973); Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974).

II

Appellant’s second issue relies on his first. He reasons that since leading questions were asked by the prosecutor, the alleged victim “never once stated from her own testimony” that the appellant committed the crime. The child responded affirmatively to the questions: “Did he touch you where you pee-pee?” “Did your Uncle Willard touch you where your panties are?” “Did he put his finger in you?” She also responded affirmatively to the question whether she touched her uncle’s “no-no.” We find that the direct testimony of the victim, though elicited by leading questions, was sufficient evidence to submit to the jury the question of the defendant’s guilt.

Ill

Finally, appellant contends that the court erred in failing to give a written requested charge on violation of § 13A-6-68, Code of Alabama 1975, the indecent exposure statute; appellant claims indecent exposure is a lesser included offense of sexual abuse. We cannot agree.

In construing the term “lesser included offense” this court has stated that “to be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser.” Sharpe v. State, 340 So.2d 885 (Ala.Cr.App.), cert. denied, 340 So.2d 889 (Ala.1976). See § 13A-1-9, “Lesser Included Offenses,” Code of Alabama 1975, and the annotations thereto.

In order to commit the type of sexual conduct proscribed by § 13A-6-66, it is not necessary that the offender first expose himself to view.

Thus, this issue is without merit and this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    James PRATTE v. STATE.
    8 Div. 923.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      J. Thomas Conwell, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   ON REHEARING

SAM TAYLOR, Judge.

The opinion in this case originally issued on January 31, 1984, is withdrawn and this opinion is issued in its place.

Appellant James Franklin Pratte was indicted twice for the unlawful sale of marijuana by the Madison County Grand Jury. In addition, he was indicted for the sale of cocaine; for the sale of lysergic acid diethylamide (LSD); and for possession of methaqualone. Appellant entered a plea of guilty to each charge.

After sentencing hearing, appellant was given the following sentence: four years’ imprisonment and a fine of $500 for his sale of marijuana; four years’ imprisonment and a fine of $500 for another sale of marijuana; seven years’ imprisonment and a fine of $1,000 for sale of cocaine; five years’ imprisonment and a $500 fine for possession of methaqualone; and 12 years’ imprisonment and a $3,000 fine for sale of LSD. All sentences were designated to run consecutively and not concurrently. Appellant then moved to reduce sentence, claiming that his pleas were entered pursuant to a negotiated plea agreement which was not followed by the trial court. He also moved to withdraw his guilty plea and for a new trial based on the same assertion. He gave notice to appeal after the trial court did not rule on his motions.

I

Appellant contends that he was not properly advised of the maximum and minimum penalties under sections 20-2-70 and 20-2-76, Code of Alabama 1975.

The pertinent parts of those sections read as follows:

“Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and in addition, may be fined not more than $25,000.00.
“Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized or both.”

At the hearing, the court advised the appellant of the minimum and maximum punishments as follows:

“THE COURT: It’s my impression that the punishment range is accelerated from four years to 30 years, and I think he ought to be aware of that.
“MR. CONWELL: Well, he understands that.
“THE COURT: Well, then, that’s my understanding, and that’s the understanding we are going to proceed on.
“THE COURT: Five offenses. That would give him a potential of 120 plus 15 — 135 years.
“THE COURT: So he needs to be aware of that.
“MR. CONWELL: He’s aware of it, Your Honor.”

It is apparent from this exchange that appellant was incorrectly informed of his possible minimum period of imprisonment. Under the code sections quoted above, appellant could have received a possible minimum sentence of two years rather than the four years indicated by the trial court. Our Supreme Court has stated that “... the defendant must be informed of maximum and minimum possible sentences as an absolute constitutional prerequisite to acceptance of a guilty plea.” Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973). In the case of Hall v. State, 418 So.2d 946 (Ala.Cr.App.1982), this court stated:

“... the defendant was improperly informed of the possible range of punishment for the charged offense.
“Since an accused must be informed of the minimum and maximum possible sentence for his offense as an absolute constitutional prerequisite to acceptance of the guilty plea, Miliner [v. State] 414 So.2d [133], at 134 [Ala.Cr.App.1981], the judgment of the circuit court is reversed and the cause remanded.”

Since knowledge of the range of possible penalties plays an important part in an accused’s decision whether or not to plead guilty, the maximum and minimum sentences should be stated with reasonable precision. Thus, this case is due to be reversed and remanded on the authority of Hall, supra.

II

Appellant contends that subsequent proceedings in this case should take place before a different judge. We are familiar with the decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). We find that the trial judge already handling this case has been fairminded and evenhanded.

In light of the required reversal and re-mandment, we will not address issues regarding plea bargaining in the case to this point.

REHEARING GRANTED;

REVERSED AND REMANDED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Michael THATCH a/k/a Willie Davis, Jr. v. STATE.
    8 Div. 971.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      E. Steven Croomes, Athens, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appeal from a denial of a pro se petition for writ of error coram nobis could appropriately be disposed of by an affirmance without an opinion. Nevertheless, it is believed that the exemplary handling of the matter by the trial judge and the attorneys on an evidentiary hearing of the petition should by an opinion be made known generally “to whom it may concern.”

Soon after the filing of the pro se petition that petitioner executed while in Holman Prison, in which he requested that he be allowed to proceed in forma pauperis, the court appointed an attorney to represent him, which appointment the attorney promptly accepted; and he promptly proceeded to arrange for witnesses to attend the hearing. Before the hearing commenced, the petition was amended by petitioner’s appointed counsel by adding the following averment:

“Petitioner entered a Plea of Guilty to two cases of Assault with Intent to Murder (Cases No. 10,952 and 10,475) on the eighteenth day of April 1972 and he hereby attacks the validity of both of the proceedings.”

The regular judge of the Circuit Court of Limestone County recused himself, and Retired Circuit Judge Newton Powell was duly designated to handle the case.

The pro se petition, without amendment, contained such a conglomeration of allegations that it seemed to afford little, if any, basis for relief. The controversy between the parties on the hearing centered upon the validity vel non of the two convictions in 1972 for the crimes of assault with intent to murder, which was challenged by the amendment to the petition. It was established by the evidence that at the time of his convictions he was within the age of eligibility for treatment under the Youthful Offender Act, whereby appellant could have, upon his consent, been tried as a youthful offender if upon an appropriate investigation by the trial court it determined that he should be tried as a youthful offender. Smith v. State, 55 Ala.App. 323, 314 So.2d 925 (1975); McClendon v. State, Ala.Cr.App., 341 So.2d 174 (1976), cert. quashed, 341 So.2d 178 (1977). As stated in Morgan v. State, 291 Ala. 764, 765, 287 So.2d 914, 915 (1973):

“... The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his Constitutional rights when he enters a plea of guilty.”

After the petitioner had made it clear by his testimony that his age made him eligible for youthful offender treatment in the 1972 cases and that it had not been made known to him that he had the right to apply for such treatment, the trial judge on the coram nobis proceeding apparently concluded that the State could offer no evidence to show that the trial judge in the 1972 cases had called the Act to the attention of defendant and suggested “consideration as to whether or not he would have been granted youthful offender status if he had applied.” The inquiries then concentered upon the issue whether or not petitioner should have been accorded youthful offender status if he had been informed of his right, and had exercised the right, to apply for treatment as a youthful offender.

The petitioner testified on the issue of whether he should have been granted youthful offender treatment. It was made known to the trial court that there was a report by the probation officer as to defendant’s application for probation in the 1972 convictions, which the trial judge stated he would review before rendering judgment as to the petition for writ of error coram nobis. The hearing was concluded as follows:

“THE COURT: I’ll take this under advisement and will advise you as soon as possible.”

Within about five days after submission, the trial court rendered a five-page “ORDER” denying the petition for writ of error coram nobis, in which order are the following statements, inter alia:

“The question of the failure of the Trial Judge to advise the Defendant of his right to apply for youthful offender status is one which has been considered by the Courts. It has been determined that this is a requirement in cases where the Defendant is within the age limit of this status. The attorney for the Petitioner in this case furnishes the Court with a memorandum of authorities which contains a citation to the proposition that where the Court fails to advise the Defendant, Petitioner of his right to apply for the status of youthful offender before his plea of guilty that the case will be remanded to the Trial Court for the determination as to whether or not in the Trial Court’s discretion the Defendant should be treated as a youthful offender. Cook [Cooks] v. State [55 Ala.App. 537], 317 So.2d 504 (1974); Pride v. State [55 Ala.App. 575], 317 So.2d 541 (1974). Other cases are to this effect also.
“The Court finds that the Trial Court failed to advise the Petitioner of his right to apply for youthful offender status at the time he entered his plea of guilty. The Court has investigated the record of the Petitioner at the time of his plea of guilty. The Court has before it a probation report in the two cases wherein the Petitioner entered pleas of guilty. This probation report is made an exhibit to the evidence in this case. Upon review of the probation report it appears to the Court that at the time the pleas of guilty were entered this Petitioner had been charged with the offense of robbery which was amended to a charge of assault and battery, and the Petitioner had served four months in the county jail for the assault and battery. It also shows that this Petitioner had served thirty days at hard labor in the county jail of Limestone County for the offense of petty larceny at this time. It also shows that this Defendant had served thirty days at hard labor for the offense of resisting arrest at the time he entered his plea of guilty in these two cases. It also shows that the Petitioner had served thirty days at hard labor for the county for abusive language at the time he entered the said plea, and that he had served thirty days at hard labor for disturbing the peace of others at this time; this was in addition to another thirty-day sentence at hard labor which he had served for the same type of offense in 1969, prior to his plea of guilty in the cases in question. The record also indicates that this Petitioner was fined Fifty and 00/100 Dollars ($50.00) and sentenced to twenty-four days in jail for the offense of provocation prior to his plea of guilty in the cases in question. These cases are in addition to eight (8) traffic cases involving one driving while intoxicated and in some of these cases the defendant who is here the petitioner was sentenced to jail sentences. The probation report also reveals that the Petitioner at the time he entered the plea of guilty had a bad reputation among members of both races in Limestone County, that he had been a source of ‘trouble’ for enforcement officials in that county for several years, and the probation officer reported that he found no one who recommended probation for this Petitioner at that time.
“The Court, therefore, concludes that even though the Petitioner was not advised of his right to apply for youthful offender status at the time he entered his plea of guilty had he made such application the application would have been denied on the record of the Petitioner at the time he entered the pleas. Youthful offender status is usually reserved for those first offenders who have a good reputation and a promise of rehabilitation. This Court is of the opinion that youthful offender status should not have been granted in this case based on this Court’s finding. Therefore, the judgment of the Trial Court on the pleas of guilty of the Defendant who is here the Petitioner would not have been changed had the Trial Court advised the Petitioner of his right to apply for youthful offender status.

We regret the necessity for the inclusion in this opinion of the foregoing recital of petitioner’s criminal record, but we feel justified in doing so in order that all concerned may be fully informed of our reasons for reaching the decisions we are making in this case, which are consonant with the reasons expressed by the trial court for its denial, after a patient evidentiary hearing, of the petition for writ of error coram nobis.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur, except BOWEN, P.J., who concurs in the result only.


author: BOWEN, Presiding Judge.

text:
    Vernon CROWDER v. STATE.
    8 Div. 998.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Luke E. Alexander of Guin, Bouldin & Alexander, Russellville, for appellant.

      Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Vernon Crowder was indicted and convicted for the attempted murder of Leonard Oneal Mitchell. Sentence was twenty years’ imprisonment. On appeal, Crowder argues that he was convicted on the uncorroborated testimony of his accomplice, David Handback, in violation of Alabama Code Section 12-21-222 (1975). We disagree.

Crowder pled not guilty and not guilty by reason of self-defense. However, at trial, he testified that he had been taking Valium and drinking and did not remember shooting Mitchell: “I don’t know if I shot the man or not shot him. I don’t know.” On appeal, Crowder recognizes that “it seems undisputed that either Handback or Crowder fired the shots”, three of which struck Mitchell.

Here, there was no written or oral motion to exclude the State’s evidence, no motion for a judgment of acquittal before the submission of the case to the jury or after the verdict or judgment of conviction, no motion for a new trial and no motion in arrest of judgment. The record contains no objection in any manner or form challenging or questioning the sufficiency of the evidence. The jury was not instructed on the legal principles involved in the corroboration of accomplice testimony.

The issues of whether a witness is an accomplice and whether that testimony has been corroborated must be presented to the trial judge or else those issues are waived. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, Ex parte Ward, 376 So.2d 1117 (Ala.1979); Goulden v. State, 53 Ala.App. 276, 299 So.2d 321 (1974). This reason alone justifies the af-firmance of Crowder’s conviction.

However, even if Handback be considered an accomplice, there is a wealth of evidence to corroborate his testimony. Peoples v. State, 418 So.2d 935 (Ala.Cr. App.1982); McCoy v. State, 397 So.2d 577 (Ala.Cr.App.), cert. denied, Ex parte McCoy, 397 So.2d 589 (Ala.1981); Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, Ex parte Jacks, 364 So.2d 406 (Ala. 1978).

Despite the lack of objection, we have reviewed the entire record and found the evidence sufficient to support the conviction. As an alternative to reciting the testimony presented at trial, we simply note that the facts show that both Crowder and Handback had the motive, means, and opportunity to shoot Mitchell. In addition, Handback testified that Crowder shot at Mitchell five times with a .22 caliber automatic rifle. Which one actually fired the shots was an issue only the jury could decide. Dolvin v. State, 391 So.2d 133 (Ala. 1980).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    William SAMOSKY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2614.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Bennett H. Brummer, Public Defender, and Lawrence M. Malman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill and Julie Thornton, Asst. Attys. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendant William Samosky appeals his convictions for manslaughter, armed robbery and kidnapping and contends that the trial court committed reversible error in denying his timely motion for mistrial based on an impermissible comment by the prosecuting attorney during closing argument to the jury. It is urged that the prosecuting attorney indirectly commented on the defendant’s failure to testify in the ease as follows:

“So normally at this point, I’d say, ‘Well, what about the defense in this case?’ I don’t know what the defense is_” (R. 234-35)

We entirely agree that the above comment was an indirect comment on the defendant’s failure to testify and present a defense, that the trial court erred in denying the defendant’s timely motion for mistrial based on this comment, and that a reversal of the convictions herein is required under the established law of this state. Shepherd v. State, 436 So.2d 232 (Fla. 3d DCA 1983); Fernandez v. State, 427 So.2d 265 (Fla. 2d DCA 1983); Young v. State, 280 So.2d 13 (Fla. 2d DCA 1973). We specifically reject the state's contention that we consider this comment a harmless error because the law of Florida is well-settled that “such a comment requires the reversal of a conviction and that the harmless error rule does not apply,” Harris v. State, 438 So.2d 787 (Fla.1983), that “[a]ny comment on an accused’s exercise of his right to remain silent is reversible error, without regard for the harmless error doctrine,” Donovan v. State, 417 So.2d 674, 675 (Fla.1982), and that “[a]ny comment which is ‘fairly susceptible’ of being interpreted by the jury as referring to a criminal defendant’s failure to testify constitutes reversible error, without resort to the harmless error doctrine.” David v. State, 369 So.2d 943, 944 (Fla.1979). See also Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Trafficante v. State, 92 So.2d 811 (Fla. 1957), for the same holding.

The judgments of conviction and sentences under review are reversed and the cause is remanded to the trial court for a new trial.


text:
    CITY OF MIAMI SPRINGS, a municipal corporation organized under the laws of the State of Florida, and E. Michael Myers, as City Manager, Petitioners, v. The Honorable Frederick N. BARAD, Circuit Court Judge in the Eleventh Judicial Circuit in and for Dade County, Florida, and Earl C. Steffen, Respondents.
    No. 83-1923.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1983.
    Paul, Landy, Beiley & Harper and Joseph S. Rosenbaum and Robert M. Sondak, Weintraub, Weintraub, Seiden, Dudley & Press and Robert Orshan, Miami, for petitioners.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for respondents.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We grant the petition for writ of prohibition filed by the petitioners, the defendants below, the effect of which is to prohibit the respondent trial judge from exercising jurisdiction over Count One of Respondent Steffen’s amended complaint, which requests, in essence, a declaration that Stef-fen was wrongfully demoted from police chief to detective and prays for reinstatement to his former position with back pay. We hold that Steffen, having voluntarily submitted himself to and fully utilized the administrative review procedures provided by the Miami Springs Code of Ordinances and having been accorded a quasi-judicial hearing before the Civil Service Board on his claim of wrongful demotion, is not entitled to a de novo hearing in the Circuit Court on this claim, but instead must institute an appropriate proceeding in the Circuit Court, sitting in its appellate capacity, to review the City’s adverse determination. See School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 132 (Fla. 1978); Carol City Utilities, Inc. v. Dade County, 143 So.2d 828 (Fla. 3d DCA), prohibition denied, 149 So.2d 49 (Fla.1962), cert. discharged, 152 So.2d 462 (Fla.1963); Frix v. Beck, 104 So.2d 81 (Fla. 3d DCA 1958). If, as Steffen claims, the procedure followed by the City in demoting him was essentially unfair or denied him due process, or the City’s decision was not supported by substantial competent evidence or departed from the essential requirements of the law, then presumably the Circuit Court, sitting in its appellate capacity, will grant Steffen relief. See Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla. 3d DCA 1976). He is not, however, entitled to relief through an independent action collaterally attacking the City’s determination to demote him.

Accordingly, we grant the petition for writ of prohibition. We are confident that it is unnecessary for us to issue the writ, and we therefore remand the cause to the Circuit Court for further proceedings consistent with this opinion.


text:
    PIONEER SECURITY CORPORATION, a Florida corporation, Appellant, v. CITY OF SWEETWATER, a municipal corporation of the State of Florida, Appellee.
    No. 83-933.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Michael A. Vandetty, Miami, for appellant.
    Joseph H. Weil, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

This appeal is from an order dismissing a complaint for declaratory and injunctive relief in an action brought by appellant Pioneer Security Corporation against the ap-pellee City' of Sweetwater.

The complaint alleged in pertinent part that ordinance number 1367, section 12-5 of the City of Sweetwater Code is invalid in that it purports to regulate the color of uniforms worn by private security agents operating in the City of Sweetwater. It further alleged that Pioneer’s security agents have been operating in Sweetwater for 13 years and have worn blue uniforms during this entire time. It is the City’s contention that the uniforms of Pioneer Security’s agents are similar in color to those worn by the police officers of the City. It was for this reason that the ordinance was enacted. Pursuant to this ordinance, the City caused several arrests of Pioneer Security’s agents. This action followed.

On appeal appellant contends primarily that the ordinance is invalid and that as a result of the City’s promulgation and enforcement of the ordinance, appellant is in doubt as to its rights and duties thereunder and that there is a need for a declaration by the Circuit Court as to whether the City has authority to enact such an ordinance.

After a hearing, the Circuit Court entered its order of dismissal. In its order the court stated:

THIS CAUSE having come on to be heard before me .upon the Motion to Dismiss Complaint for Declaratory and In-junctive Relief, filed on behalf of the City of Sweetwater, and the Court having heard the arguments of counsel and having accepted the factual allegations contained in the said complaint as being true and being otherwise fully advised in the premises:
THE COURT FINDS that there is not (sic) justifiable controversy between the parties and that the City of Sweetwater pursuant to the Home Rule provisions of the Florida Constitution, of 1968, contained in Article VIII, Section 2 and Section (6)(f) and the Home Rule Powers Act, Chapter 166 of the Florida Statutes, has been granted the authority to enact the ordinance which is the subject of this litigation.
THE COURT FURTHER FINDS that nothing contained in the ordinance challenged by the Plaintiff in the instant case, is in conflict with Chapter 493 of the Florida Statutes and that the subject ordinance of the City of Sweetwater is a proper regulatory measure within the police power of the municipality.
THE COURT FURTHER FINDS that the commercial activities of the Plaintiff are not entitled to protection under the First Amendment to the United States Constitution.
THE COURT FURTHER FINDS that nothing contained in the ordinance challenged by the Plaintiff in the instant case, is in conflict with Article III Section 2 of the Constitution of the State of Florida.
THE COURT FURTHER FINDS that nothing contained in the ordinance challenged by the Plaintiff in the instant case, is in conflict with Article I, Section 4 of the Constitution of the State of Florida or the First, Fifth or Fourteenth Amendments to the United States Constitution.
IT IS THEREUPON ORDERED AND ADJUDGED that the Plaintiffs complaint for declaratory and injunctive relief be and the same is hereby dismissed and the Plaintiff shall have ten (10) days in which to file an amended complaint, after the expiration of which this order shall become a Final order without further action of this Court.

We have carefully considered appellant’s points on appeal, the record, briefs and arguments of counsel, and have concluded that the trial court was correct in entering the order dismissing the complaint. No reversible error having been demonstrated, the order appealed is affirmed.

Affirmed.


author: SHARP, Judge. DAUKSCH, Judge,

text:
    STATE of Florida, Appellant, v. Douglas Patrick RITTER and Morgan Lee Bond, Appellees.
    No. 82-1465.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    Rehearing Denied April 3, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    James M. Russ and Terrence E. Kehoe of Law Office of James M. Russ, P.A., Orlando, for appellee Morgan Lee Bond.
    Lawrence Besser of Samek & Besser, Miami, for appellee Douglas Patrick Ritter.
   SHARP, Judge.

Ritter and Bond were charged with attempting to traffic in cocaine (Count I) and conspiracy to traffic in cocaine (Count II). Bond was charged with the unlawful possession of cocaine (Count III). Ritter also was charged with possession of different cocaine (Count IV). The substance alleged to be cocaine in Counts I, II and III was derived from the same source; the alleged cocaine that was the subject of Count IV was from a different lot or sample. The trial court dismissed the first three counts of the information when the state was unable to produce the sample involved in those counts, following defense counsels’ timely discovery motions pursuant to Florida Rule of Criminal Procedure 3.220(a)(l)(vi), and the trial court orders to produce. We affirm as to Count III, but reverse as to Counts I and II.

The charges grew out of a reverse buy operation between undercover agents of the Volusia County Sheriffs Department and Ritter and Bond. Drug Enforcement Agency (D.E.A.) officials in Miami supplied the samples of the alleged cocaine to the sheriffs department. Shortly after the information was filed, a sample of the cocaine involved in the first three counts was tested, and the remainder was returned to the Miami authorities. At the time of the hearing, it was stipulated that this cocaine had been used in another drug deal in Arizona, and it had been changed in form and packaging so that it was then unavailable to the state. There is no indication in this record that the state deliberately or willfully spirited off the cocaine to defeat the appellants’ discovery rights. But it does indicate the state negligently allowed the cocaine to be returned to D.E.A., thus rendering it unable at a later time to respond to defense counsel's discovery motions.

The actual nature of the substance in a defendant's possession is a key and material element in proving the crime of possession charged in Count III. It would be fundamentally unfair, as well as a violation of rule 3.220, to allow the state to negligently dispose of critical evidence and then offer an expert witness whose testimony cannot be refuted by the defendant. Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980); see also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Johnson v. State, 249 So.2d 470 (Fla. 3d DCA 1971), cert. dismissed, 280 So.2d 673 (Fla.1973). The proper procedural mechanism would have been to grant the defense’s motion to suppress the testimony of the state’s chemist or expert witness as to the nature of the substance seized. This ultimately would have resulted in the dismissal of Count III, as occurred in this case. Therefore, we affirm the result reached as to Count III.

Unlike possession, the charges of attempt and conspiracy in Counts I and II do not require proof that the substance involved was actually cocaine. United States v. Pietri, 683 F.2d 877 (5th Cir. 1982); State v. Cohen, 409 So.2d 64 (Fla. 1st DCA 1982). In addition to the other elements of attempt or conspiracy, the state need only prove that the defendants intended to deal in cocaine or another controlled substance, and it makes no difference whether or not the substance was actually fake.

Because Counts I and II could have been proven without establishing the nature of the substance involved in the transaction, we think the trial court erred in dismissing these counts. An appropriate sanction to deal with the state’s violation of rule 3.210, would be to suppress any testimony by the state’s expert witness as to the nature of the substance he examined. Further, we do not think the appellants’ sixth amendment rights were violated in this case.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

SCOTT, R.C., Associate Judge, concurring.

DAUKSCH, J., concurring specially with opinion.

DAUKSCH, Judge,

concurring specially:

I concur with the result reached by the majority but I do not concur in all the declarations made in the opinion. I do not agree with the statement that “it makes no difference whether ... the substance was actually fake.” In my opinion it could make a difference because there is a specific statute dealing with the sale (or attempted sale) of a substance in lieu of a controlled substance. § 817.563, Fla.Stat. (1981). The factual circumstances would dictate which statute to apply. I also do not agree that in all cases “[i]t would be fundamentally unfair, as well as a violation of rule 3.220, to allow the state to negligently dispose of critical evidence and then offer an expert witness whose testimony cannot be refuted by the defendant.”

      . §§ 777.04(1), 893.135(l)(b)(3), Fla.Stat. (1981).

      . §§ 777.04(3), 893.135(l)(b)(3), Fla.Stat. (1981).

      . § 893.13(l)(e), Fla.Stat. (1981).

      . § 893.13(l)(e), Fla.Stat. (1981).

      . Rule 3.220 provides:
      (a) Prosecutor’s Obligation.
      (1) After the filing of. the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the State’s possession or control:

        (vi) Any tangible papers or objects which were obtained from or belonged to the accused.

      . We do not reach the question of whether or not dismissal would be proper in a case where bad faith or a deliberate scheme to violate the defendants’ discovery rights were shown. See Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980).

      . United States v. Herndon, 536 F.2d 1027 (5th Cir.1976); G.E.G. v. State, 389 So.2d 325 (Fla. 5th DCA 1980), aff’d, 417 So.2d 975 (Fla.1982).


author: FERGUSON, Judge. PER CURIAM.

text:
    METROPOLITAN DADE COUNTY, and Stephen L. Smith, Acting Tax Collector, City of Miami, and City of Miami Beach, Appellants, v. The GOLDEN NUGGET GROUP, a Florida Partnership, d/b/a Golden Nugget Beach Resort; Florida Resorts, Inc., a Florida corporation, d/b/a Hawaiian Isle Beach Resort; S & M Lancaster Properties, Inc., a Florida corporation, d/b/a Beach Harbor Hotel; Aztec Motel, Inc., a Florida corporation; Bop, Inc., a Florida corporation, d/b/a Desert Inn Motel; Castelita Investments, N.V., d/b/a Chateau By the Sea; Thunderbird Associates Ltd., a limited partnership, d/b/a Thunderbird Hotel; Blue Mist Corporation, a Florida corporation d/b/a Blue Mist Motel; Pan American Hotel, Inc., a Florida corporation, d/b/a Pan American Ocean Resort Hotel; the Suez Resort Motel; and Specialized Travel Systems, Inc., a Florida corporation, Appellees.
    No. 83-2799.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 17, 1984.

      Robert A. Ginsburg, County Atty., and Vicki J. Jay, Asst. County Atty. and Stuart L. Simon, Miami, as Bond Counsel for Dade County; Jose Garcia-Pedrosa, City Atty., and Robert N. Sechen and Gisella Car-donne, Asst. City Attys., Lucia Allen
    Dougherty and Christopher G. Korge, Miami, for appellants.
    Floyd, Pearson, Steward, Richman, Greer, Weil & Zack, and Gerald Richman and Bruce A. Christensen, Miami, for ap-pellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Defendants appeal a final order granting declaratory and injunctive relief against the levy and collection of taxes on the ground that the authorizing legislation, Act of July 19, 1983, Ch. 83-354, Laws of Florida 2355 [hereinafter “the Act”] and implementing Dade County Ordinance 83-91 [hereinafter “the Ordinance”], are invalid. Both parties ask us, additionally, to determine de novo the constitutionality of the two enactments, and seek an expedited disposition by this court.

The 1983 Legislature passed the Act into law as Senate Bill No. 9-C, creating Section 212.057, Florida Statutes (1983), which authorizes, inter alia, certain counties to levy a convention development tax on specified rentals or leases, and provides for the use of those tax revenues. Pursuant to the authority granted by this legislation, Dade County enacted the Ordinance which levies the tax and provides for the collection, distribution and application of the revenues.

Plaintiffs sought a determination that both the Act and the Ordinance were invalid and unconstitutional. The trial court found both enactments defective, but declined to pass directly on the question of their constitutionality. As the first issue on appeal, it is asserted that the Act and the Ordinance are not invalid. As a second issue, which was not addressed by the trial court, it is contended that both enactments are constitutional under the laws of Florida and the United States. We agree with appellants’ contention that the Act is constitutional and valid, however, we affirm the trial court’s determination that the tax collection section of the Ordinance is invalid.

I. VALIDITY OF TWO ENACTMENTS

The determined invalidity is based on a finding that the Act and Ordinance conflict with other provisions of Chapter 212, particularly Sections 212.18 and 212.-20, Florida Statutes (1983). Section 212.-18(2) provides:

(2) The department [of Revenue] shall administer and enforce the assessment and collection of the taxes, interest, and penalties imposed by this chapter.... [e.s.]

Section 212.20(1) provides:

(1) The department [of Revenue] shall pay over to the Treasurer of the state all funds received and collected by it under the provisions of this Chapter, to be credited to the account of the General Revenue Fund of the state, [e.s.]

More specifically, the Act was declared defective because it contains no mechanism for collection, and by implication provides that the revenues collected will be segregated and actually paid to municipalities for certain convention center projects in contravention of Section 212.20. Further, the Ordinance was found to be in irreconcilable conflict with Section 212.18, since it purports to authorize collection of the tax by the County Tax Collector.

The newly enacted Section 212.057, Florida Statutes (1983), was expressly made a part of Chapter 212, a chapter entitled “Tax on Sales, Use, and Other Transactions.” Chapter 212 details a comprehensive tax scheme providing for the administration, collection, records inspection, and enforcement by the Department of Revenue of all taxes imposed by the chapter. We disapprove of Attorney General Opinion No. 83-71, and the trial court’s reliance upon it, which suggests that the Act is invalid because it does not contain a separate provision for administration, collection, enforcement, or disbursement of the tax revenues. Having enacted the Act as a part of Chapter 212, it was unnecessary for the legislature to republish those same extensive mechanisms.

The Act is consistent with Chapter 212. The tax is to be collected by the Department of Revenue as mandated by Section 212.18, and the funds paid over to the State Treasurer for deposit into the General Revenue Fund of the state pursuant to Section 212.20. We cannot find from the face of the Act that the legislature intended other than that these taxes be returned to the counties, less administrative costs, by future appropriation measures as contemplated by Section 215.-32(2)(a). We conclude that the Act is not defective.

To the extent that Section 29-61 of the Ordinance authorizes collection of the tax by the Dade County Tax Collector, it is invalid as in conflict with Chapter 212. Appellants’ fall-back argument—that the authority to collect the tax is inherent in the grant of authority to levy in the first instance—is untenable. A levy is a limited legislative function which declares the subject and rate of taxation; it does not comprehend the entire process by which taxes are imposed. Atlantic Coast Line R. Co. v. Amos, 94 Fla. 588, 605, 115 So. 315, 320 (1927).

II. CONSTITUTIONALITY OF TWO ENACTMENTS

Appellees argue that the Act and Ordinance violate several provisions of the Florida and federal constitutions. Specifically, appellees maintain the Act is unconstitutional (a) as a special or local act which lacks referendum and notice provisions and concerns a prohibited subject, (b) as a violation of equal protection guarantees, (c) as a violation of due process requirements, and (d) as a violation of uniform taxation provisions. They further contend that (e) the Ordinance is unconstitutional. We undertake the examination of the Act, as we must, with the presumption of validity which favors every legislative enactment. Shelton v. Reeder, 121 So.2d 145 (Fla. 1960).

A. The act is not unconstitutional as a special or local act which lacks referendum and notice provisions and concerns a prohibited subject.

Appellees first contend that the Act is unconstitutional as a special or local act, or as a general law of local application. If a special or local law, the Act violates Article III, Section 10 of the Florida Constitution, since it lacks notice and referendum provisions. Further, if the Act is either a special or local law, or a general law of local application, appellees claim that it concerns a prohibited subject—the assessment of taxes—in contravention of Article III, Section 11(a)(2).

The constitution does not define a special or general law, however, several early Florida cases have undertaken to do so. In Carter v. Norman, 38 So.2d 30 (Fla.1948), the Florida Supreme Court defined a general law as “[a] statute relating to subdivisions of the state or to subjects, persons or things of a class, based upon proper distinctions and differences that inhere in or are peculiar or appropriate to the class_” Id. at 32. A general law may contain classifications, and the legislature has wide discretion in making such classifications, so long as they are reasonable.

A general law containing a classification scheme is reasonable and not arbitrary if there is a reasonable relation between the classification and the purpose of the legislation. Department of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879 (Fla.1983). In Sanford-Orlando, a statute had been enacted which permitted the conversion of any harness racing track to dog racing if that track fell into a certain category. That category was based on the amount of income or “handle” received over a period of years. The thrust of the legislation was to allow conversion if the track was “financially ailing.” A new statute was created which amended the former one, broadening it for the specific purpose of allowing Seminole Park and Fairgrounds and Seminole Greyhound Park to convert from harness racing to dog racing. Both the trial court and the district court of appeal had found the latter statute unconstitutional as a special law or general law of local application enacted in violation of Article III, Sections 10, 11(a), 12, and 20 of the Florida Constitution. The Florida Supreme Court reversed.

In addition to reiterating the definition of general law set out in Carter v. Norman, supra, the court noted that “a general law does not lose its general law status so .long as it operates uniformly upon subjects as they may exist in the state, applies uniformly within permissible classifications, operates universally throughout the state or so long as it relates to a state function or instrumentality.” 434 So.2d at 881. The court found that in light of the state interest — increased state revenues — the classification of financially ailing racing facilities was reasonably related to the subject matter. It was deemed insignificant that Seminole was the only track to benefit from the law, since the class had the potential of applying to other tracks.

In the instant case, appellants suggest that a rational relationship exists between the classification and purpose of the Act — to facilitate the construction and improvement of facilities such as convention centers for the purpose of promoting tourism. Appellants claim that the three counties potentially eligible for the tax have the following characteristics in common: (1) they are all in the southern half of Florida; (2) they are all riparian; (3) they all have extensive airport and/or seaport facilities; (4) they each have substantial tourist-oriented economies. We choose not to comment on the importance of the first three characteristics. Appellants, astutely, rely most heavily on the fourth characteristic, noting that during the last two decades these counties in particular have developed or plan to develop facilities that will attract a growing number of convention tourists, for the good of an ailing tourist industry. This is clearly a reasonable classification, cf. Department of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879 (Fla.1983) (classification of “financially ailing” harness tracks reasonable), which bears a substantial relationship to the Act’s purpose as stated above. When a classification is made by the Legislature in the enactment of general laws, the presumption is in favor of the classification’s reasonableness, so that:

[I]f any state of facts can reasonably be conceived that will sustain the classification attempted by the Legislature, the existence of that state of facts at the time the law was enacted will be presumed by the courts. The deference due to the legislative judgment in the matter will be observed in all cases where the court cannot say on its judicial knowledge that the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made. Lewis v. Mathis, 345 So.2d 1066, 1068 (Fla.1977).

The classification in the instant case satisfies the criteria for a general law.

The Act could fairly be labelled a ‘general law of local application,’ or “a law that uses a classification scheme — based on population or some other criterion — so that its application is restricted to particular localities.” City of Miami Beach v. Frankel, 363 So.2d 555, 558 (Fla.1978). Appellee argues that under Article III, Section 11 of Florida’s Constitution, neither a special law nor a general law of local application may relate to the assessment of taxes. This prohibition, however, has been interpreted to proscribe only local enactments bearing upon the mechanics of tax assessment and collection; it does not prohibit special acts or general acts of local application that empower a local government to levy or impose a tax. Wilson v. Hillsborough County Aviation Authority, 138 So.2d 65 (Fla.1962); McMullen v. Pinellas County, 90 Fla. 398, 106 So. 73 (1925).

B.The act is not unconstitutional as a violation of equal protection guarantees.

Appellees next claim that the Act impermissibly classifies persons on the basis of the duration and type of residence in the county, thus violating equal protection. A similar argument was rejected in Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla. 1981). Miami Dolphins involved a challenge to Section 125.0104, Florida Statutes (1981), a Local Option Tourist Development Act. That statute, employing almost identical language to that which is challenged here, permitted all counties to adopt a “tourist room tax at the rate of two percent on hotel, motel, and similar accommodations rented for a term of six months or less”. Id. at 983. In rejecting the contention that this statute violated equal protection, the Florida Supreme Court held that the tax does not discriminate between residents and non-residents, as it is imposed on anyone who rents specific kinds of living space for a term of six months or less. Further, the various classifications and exemptions were found to be rationally connected to a legitimate state interest, and not arbitrary. Taxes on transient rental housing as are found in Chapter 212 (which is incorporated into § 125.0104 by reference), the court observed, have been part of Florida law for many years and have withstood several court tests. See, e.g., Gaulden v. Kirk, 47 So.2d 567 (Fla.1950) (discussed infra).

Additionally, appellees contend that the Act violates equal protection because there is no rational basis for the distinction drawn between counties which fall into the limitation and those that do not. But the actual test for determining whether a statutory classification comports with equal protection is “whether the difference between those included in a class and those excluded from it bears a substantial relationship to the legislative purpose....” Lasky v. State Farm Insurance Co., 296 So.2d 9, 18 (Fla.1974). We think the same substantial relationship between the classification and the Act’s purpose identified in our discussion of the Act as a general law satisfies the requirements of the equal protection clause.

C. The act is not unconstitutional as a violation of Due Process requirements.

Appellees further contend that the Act is unconstitutionally vague. The tax herein is imposed on the rental, lease or use of certain accommodations “for a period of thirty days or less.” Appellees claim that the phrase “period of thirty days or less” is not defined in the Act, and that the phrase is ambiguous. Appellees by example suggest that the Act is susceptible to tax-avoidance interpretations, which, we think, is far less than what is required for a showing of constitutional vagueness. If that were the test, many tax laws would wither under assault. It appears the Act is sufficiently definite to apprise those to whom it applies what is required of them. Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961).

D. The act is not unconstitutional as a violation of uniform taxation protections.

Article VII, Section 2 of the Florida Constitution provides that all ad valo-rem taxes shall be at a uniform rate within each taxing unit. Appellants maintain that the tax is not an ad valorem tax, since it is not based upon the assessed value of property. § 192.001(1), Fla.Stat. (1983). Instead, they contend, correctly, that the tax is an excise or sales tax based on the use of certain property, consistent with Chapter 212, which is entitled “Tax On Sales, Use and Other Transactions.”

In Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950), a similar tax was placed on the “privilege” of renting, leasing, or letting certain accommodations. A tax on the exercise of such privilege was three percent. The Florida Supreme Court upheld the tax against a constitutional challenge, finding that this tax was not a property tax within the meaning of the constitution, but was more like an excise or occupation tax. The Florida Supreme Court has more recently had occasion to delineate the difference between ad valorem and excise taxes. In Rutledge v. Chandler, 445 So.2d 1007 (Fla. 1984), the court reaffirmed the test articulated in City of DeLand v. Florida Public Service Company, 119 Fla. 804, 813, 161 So. 735, 738 (1935), which disposes of the issue as presented here:

An excise and a property tax, when the two approach each other, ordinarily may be distinguished by the respective methods adopted for laying them and fixing their amounts. If a tax is imposed directly by the Legislature without assessment, and its sum is measured by the amount of business done, income previously received, or by the extent to which a taxable privilege may have been enjoyed or exercised by the taxpayer, irrespective of the nature or value of such taxpayer’s assets or his investments in business, it is to be regarded as an excise tax. But if the tax is computed upon the valuation of the property, and assessed by assessors, either where it is situated or at the owner’s domicile, although privileges may be included in the valuation, it is considered a property tax. 445 So.2d at 1008.

Further, the tax authorized by the Act is uniform throughout the area in which it is levied. In other words, everywhere the tax is levied, it is levied at the same rate, which satisfies the constitutional requirements for uniformity. See Gallant v. Stephens, 358 So.2d 536 (Fla.1978); Tucker v. Underdown, 356 So.2d 251 (Fla. 1978).

E. The Constitutionality of the local ordinance need not be ruled upon.

We discern no specific challenge to the constitutionality of the local ordinance other than (1) the Act which authorizes the county to levy the tax is itself unconstitutional, (2) collection of the tax by the county is not authorized by the Act. In light of our holding that the Act is constitutional and that the collection provision in the Ordinance is invalid because authority to collect the tax is not statutorily granted, we need not consider for the purpose of constitutionality, other sections of the Ordinance. The section declared invalid herein is sever-able. Our opinion anticipates legislative enactment of appropriation and transfer measures to carry out legislative intent, the present absence of which in no way affects the otherwise valid sections of the Ordinance.

Affirmed in part and reversed in part.

ON MOTION FOR REHEARING

PER CURIAM.

The opinion of February 28, 1984, is supplemented as follows for purpose of clarification: The funds collected by Dade County pursuant to the Act and Ordinance, which are now being held in escrow, along with all accrued interest, are to be paid over to the State Department of Revenue. Otherwise, the motion for rehearing is denied.

      .The findings of fact, as set forth in the final judgment are:
      FINDINGS
      1. This Court has jurisdiction of these parties and over this cause as an action for declaratory relief under Chapter 86 of the Florida Statutes and for injunctive and other relief.
      2. The Florida Legislature in July of 1983 enacted Chapter 83-354, Laws of Florida ("the Convention Development Tax”, hereinafter "the Tax” or the "Tax Act”). Subsequently, in October, 1983, the Commission of Dade County passed Ordinance 83-91 that purported to authorize the County Tax Collector to collect this Tax from hotels and motels, apartment house owners, apartment hotel and resort motel owners, rooming house owners, tourist or trailer camp owners and condominium owners. Being charged is an additional 3% tax from persons renting, leasing and using these living quarters or accommodations for a period of thirty days or less.
      3.Plaintiffs are ten owners of hotels and motels in the unincorporated "Sunny Isles" area of Dade County, Florida, and a tour operator in that area. Defendants are Metropolitan Dade County and Stephen L. Smith, its Acting Tax Collector.
      4. No referendum has been held on the Statute and no notice of intention to enact the Statute was given.
      5. The Tax Act specifically applies only to counties as defined by Sec. 125.011(1) of the Florida Statutes. That Statute in turn limits the definition to counties which have adopted home rule under 3 subsections of the 1885 Florida Constitution, as preserved by the 1968 Constitution. Each of the 3 subsections applies to a different Florida county: Dade, Hillsborough and Monroe. Only Dade County has adopted such a "home rule” charter — so in the entire state, only Dade County has the right to adopt the 3% tax, under the Tax Act.
      6. The parties have stipulated that Plaintiffs would have testified that because of the imposition of the Tax, they are faced with loss of business in amounts not specifically calculable. Their primary competition comes from Broward County to the immediate North, which has not been authorized to impose the Tax, and from the municipalities of Surfside and Bal Harbour to the immediate South, both of which municipalities have "opted out” of the Tax, an option prohibited to Plaintiffs. Without elaboration, it was stipulated that Plaintiffs would testify as to irreparable injury resulting from the imposition of the Tax. The Court finds that such irreparable injury has been demonstrated.
      7. Plaintiffs have demonstrated they are without adequate remedy at law....

      . Chapter 215 governs the handling of all revenues paid into the State Treasury. Section 215.-32, applicable here, provides:
      (1) All moneys received by the state shall be deposited in the State Treasury unless specifically provided otherwise by law and shall be deposited in and accounted for by the Treasurer and the Department of Banking and Finance within the following funds, which funds are hereby created and established:
      (a) General Revenue Fund;
      (b) Trust Funds; and
      (c) Working Capital Fund.
      (2) The source and use of each of these funds shall be as follows:
      (a) The General Revenue Fund shall consist of all moneys received by the state from every source whatsoever.... Such moneys shall be expended pursuant to General Revenue Fund appropriations acts_[e.s.]
      We must reject the alternative construction urged by the county, that the funds may be transferred from the General Revenue Fund into a trust fund under Section 215.32(l)(b). We agree with the finding of the trial court that no such trust fund was created or contemplated. Further, no statutory mechanism exists to effect a transfer from the General Revenue Fund to a State Trust Fund to the local authorities. Cf. § 125.0104, Fla.Stat. (1981), discussed in Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981).

      . Special and local laws were distinguished: "A statute relating to particular subdivisions or portions of the state, or to particular places of a classified locality is a local law. A statute relating to particular persons or things or other particular subjects of class is a special law.” Id.


author: GLICKSTEIN, Judge.

text:
    Earl GRUSKIN and Linda Gruskin, his wife, Appellant, v. HOLIDAY POOLS OF BROWARD, INC., and Talia Construction Corporation, a Florida corporation, Appellees.
    No. 83-1125.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied May 4, 1984.
    Howard Hochman of Law Offices of A. John Goshgarian, Miami, for appellant.
    Lee B. Gartner and Theodore P. Sobo of Sobo, Wellens & Balocco, Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

We agree in large measure with the trial court’s final judgment. However, in making its award, the trial court failed to deduct $1,200.00, which was the sum one of appellee’s owners testified would be necessary to complete the pool in question. In Adams v. Dreyfus Interstate Development Corp., 352 So.2d 76 (Fla. 4th DCA 1977) this court was concerned with a breach of contract precipitated by a landowner’s refusal to make a partial payment. It was there said that:

[t]he measure of damages is the amount which the innocent party would have received if the contract had been performed, less any deductions for expenses not yet incurred.

Id. at 78.

Accordingly, we remand with direction to enter a corrected final judgment, nunc pro tunc May 2, 1983, reflecting the principal sum due of $6,754.88, together with interest thereon from March 1, 1982, at 10% per annum.

HURLEY, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Steven J. IVANY, and Kathleen Ivany, his wife, Appellants, v. AMERICAN MOTORISTS INSURANCE COMPANY, Genway Fleet Leasing Corporation, a Foreign Corporation for profit licensed to do business in the State of Florida; Curtis Collins; and Jefferson Green, Appellees.
    No. 82-1330.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 5, 1984.
    Timothy J. Hmielewski of Stover, Stoker, Medlin, & Hmielewski, P.A., Fort Lauder-dale, for appellants.
    Michael A. Bernstein and Charles T. Kes-sler of Pyszka & Kessler of Fort Lauder-dale, for appellees.
   PER CURIAM.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ., concur.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Chief Judge,

specially concurring:

I concur in the affirmance of the trial court’s judgment entered upon a jury verdict and the trial court’s subsequent denial of a motion for new trial. The most troubling issue on appeal to this writer concerned the trial court’s refusal to allow appellant Steven J. Ivany’s treating physician to testify about several recent visits Ivany made to the doctor. The court ex-eluded this testimony by reason of the appellants’ failure to furnish reports of these visits to appellees pursuant to the reciprocal discovery rules previously invoked by appellees. Although I believe the exclusion was error, I do not think the error was sufficiently harmful to merit reversal and a new trial. The physician was allowed to testify about the total number of visits he had with Ivany and to express his views as to the nature and permanency of Ivany’s injuries. There is no indication that the subsequent visits offered any additional information not disclosed by the prior visits. In addition, we are handicapped on review because no record proffer was made of the excluded evidence.


author: DAUKSCH, Judge. COWART, Judge,

text:
    Tom Alex O’HARA, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-894, 82-1248.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    Rehearings Denied March 30, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from convictions for grand theft and extortion. It was alleged and proved that appellant threatened to have his victim arrested if she did not pay him money. Thus the extortion conviction. It was also alleged and proved that appellant took money from the same victim. Thus the theft conviction. It was the same money which was extorted from the victim which was stolen from her. The proof at trial was that by virtue of the extortion, the theft occurred. The two were intrinsically connected. But for the extortion there would have been no money taken — that was the method by which it was taken. Only one conviction should have resulted. See Bell v. State, 437 So.2d 1057 (Fla.1983).

One cannot be convicted of two crimes for the taking of only one sum of money, be it through an extortion method as here, or a robbery method as in Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983). In Rodriquez it is said “It is elementary that, once convicted of petit theft for stealing money, a defendant cannot again be convicted of grand theft and sentenced twice where there has been only one conversion of a single sum of money.” The same logic which was applied in Rodriquez, which was a robbery and grand theft case, should apply here — extortion and grand theft. By way of illustration we would say the same logic would also apply if a person stole a motor vehicle and was charged with grand theft of a motor vehicle under Section 812.014(2)(b)4, Florida Statutes (1981); he could not also be convicted of grand theft under Section 812.014(2)(b)l, Florida Statutes (1981). By way of further illustration the same reasoning could apply if one stole a will, codicil or other testamentary instrument; a cow; a horse or a fire extinguisher. If a person steals two hundred dollar bills from one owner in one taking he cannot be convicted of two hundred separate petit larceny charges; or one grand larceny and any number of petit larcenies.

When a person commits an act which constitutes two separate crimes such as armed robbery and possession of a firearm by a convicted felon then it is clear the legislature has meant for the two convictions. But when the legislature has proscribed the taking of money by extortion and the taking of money by theft it is obviously meant to punish for the taking. The crime for which the accused can be convicted depends upon how the taking occurred.

In Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981), this court recognized that alternative or disjunctive provisions of separate criminal statutes must be considered in deciding double jeopardy problems, when it said:

When a single statutory offense describes multiple alternative acts, each of which is prohibited, each separate prohibited act does not constitute a separate offense for double jeopardy purposes since there is but one statutory offense. Therefore a charge that an accused has violated a specific criminal statute results in jeopardy as to all alternative acts that could have been alleged and proven to have constituted a violation of the statute although the accusatorial pleading described but one of many alternative factual events proscribed in the one statute. Thus if one is tried for aggravated battery by committing a battery with a deadly weapon, § 784.045(l)(b), Fla. Stat. (1979), and is convicted or acquitted, he cannot thereafter be tried as to the same factual event for aggravated battery by committing a battery causing great bodily harm. § 784.045(l)(a), Fla. Stat. (1979). The alternative prohibited factual events set forth as subsections or alternatives in one criminal statute, constitute but one offense for which an accused cannot be twice placed in jeopardy because the legislature has chosen as a matter of form to make several distinguishable acts violative of but one statutory offense. Conversely, if two separate statutory offenses proscribe acts which are in law the same because they have the same essential constituent factual elements, an accused cannot be placed in jeopardy for a violation of both such statutes because in substance they constitute a single offense — the “same offense” — for which one cannot be placed twice in jeopardy.

Id. at 893.

With this in mind, clearly only one offense was charged here. Section 812.014, Florida Statutes (1981), says that a person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent:

(a) To deprive the other person of a right to the property or a benefit therefrom.
(b) To appropriate the property to his own or to the use of any person not entitled thereto.

Under the alternative provisions of Section 836.05, Florida Statutes (1981), one commits the crime of extortion by maliciously threatening to do certain acts with the intent to extort money from the victim. Although extortion is also committed in other alternative ways, taking or attempting to take the money of another by means of threats, etc., is extortion, and in proving the crime of extortion by this alternative method, the crime of theft of the money has also been proved; i.e., obtaining or attempting to obtain the property (money) of another with intent to deprive such other person of said money. For the reasons stated in Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983), the mere fact that the amount taken is greater than $100 does not, by itself, convert the one crime to two.

The theft conviction is reversed, the extortion conviction is affirmed.

AFFIRMED in part; REVERSED in part.

ORFINGER, C.J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

O'Hara was convicted of violating two criminal statutes, extortion (§ 836.05, Fla. Stat. (1981)) and grand theft (§ 812.-014(2)(b)l., Fla.Stat. (1981)) based on connected and interrelated facts extending over a two day period and involving many persons and elemental factual events occurring in what is usually called a single criminal transaction or episode. This appeal presents a double jeopardy “identity of offense” problem of whether double jeopardy prohibits the prosecution and conviction as to both offenses because they are, in substance and effect, “the same offense”. The correct legal solution to this recurring problem is to make a proper substantive analysis and comparison of the essential constituent elements of the two statutory offenses, and, if (and only if) the two statutory offenses are thereby found to be “the same offense,” then to make a proper substantive analysis and comparison of the alleged factual basis for each of the two charges to determine if the two substantively “same” offenses are based on the same factual event. This is done in order to determine whether in constitutional contemplation the statutory offenses are substantively “different” in law or whether the alleged factual events upon which the two charges are based are substantively “different” in fact, in either of which instances both convictions can stand, or whether the two charges are, substantively “the same offense” in law and fact, in which event double jeopardy bars trial and conviction for both offenses. This theory of substantive analysis has been approved and applied by the Florida Supreme Court in eases where the two charges in question were found to be substantively different and also where they were found to be substantively the same. This court has been very reluctant to openly embrace this theory of analysis and accordingly, its cases are inconsistent in rationale and result. Some decisions have been made on aspects of the single transaction rule analysis, such as examining the whole criminal episode for “facets” of factual commonality or penalty distinctions but other decisions have been made by use of the theory of substantive analysis. When these alternative theories began to collide substantive analysis was rejected by all members of this court but one, as the proper theory for solution of double jeopardy and due process problems. Except for its one use to recognize a lesser included offense, since the Florida Supreme Court disapproved use of single transaction analysis and approved substantive analysis in a double jeopardy case from this court this court has only covertly flirted with the theory of substantive analysis and has adamantly refused to openly recognize or adopt it, preferring any other theory. The latest case, Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983), for rationale, purports to follow federal cases rationalizing results based on “the intent of the legislature.” However, as was explained in the dissent in Rodriquez, legislative intent is not the key to constitutional construction and if this constitutional problem is not solved by a correct substantive analysis of the statutes and charges involved, whatever other ratio decidendi is claimed, the underlying method is always to quote from other cases and to not analyze and compare the elements of the two statutory offenses involved but, instead, to make a single transaction analysis by searching for a factual commonality. That method, in effect, equates double jeopardy with a finding that each of two prosecutions is based on some one or more of the same facts and to find that, for that reason, only one conviction should result. It is ironic that the majority in this case, and in Rodriquez, disdainfully ignores the substantive analysis rationale of Borges and Bell, declines to even discuss Borges, which is the controlling precedent in Rodriquez and in this case, and cites Bell only because the result in Bell, reached by substantive analysis, is the same result the majority reaches by refusing to make a substantive analysis of the statutory offenses involved. Borges and Bell are not just precedent for the opposite results reached in each case but are good examples of how the one correct theory of substantive analysis, correctly applied, will properly lead to different results when the compared statutes and charges are substantively different, as in Borges, than when they are substantively “the same offense”, as in Bell. To do otherwise is to use whatever rationalization is desired to reach whatever result is desired and then, if two convictions are not desired, to cite Bell, or if two convictions are desired, to cite Borges. To do this is not to follow those cases.

A substantive analysis in this case is relatively simple: since extortion has at least four essential constituent elements ((1) a communication, (2) a threat [to accuse, to injure, to expose or to impute], (3) with malice, and (4) with a specific intent to extort an advantage or compel action or non-action) not required by the offense of grand theft and grand theft has at least four essential constituent elements ((1) an obtaining or using, of (2) property, of (3) certain value or character, with (4) a specific intent to deprive) not required by the offense of extortion, these two statutory offenses are substantively very different and can never be “the same offense” within the meaning of the constitutional double jeopardy prohibition. Accordingly, notwithstanding that each offense may in a given case contain similar common factual elements (i.e., an endeavor to wrongfully obtain the property of another), a person can be constitutionally charged, tried, convicted and punished for violations of both statutory offenses although the two criminal charges are based on a single set of interrelated facts and circumstances and the proof and allegation of facts as to common elements overlap, as when property of the value or character required for grand larceny is actually obtained (taken) from a victim by a communicated malicious threat with the wrongful intent required by both offenses. Extortion under section 836.05, Florida Statutes, does not require a taking, obtaining or using of property. Except only as to its effect under the old abrogated single transaction rule (or under procedural rules adopted to implement it), it is legally immaterial that a taking constituting a grand theft (or grand larceny) was accomplished by also committing the separate and substantively different crime of robbery or extortion just as it is legally immaterial that a grand larceny is accomplished by also committing the separate and substantively discrete offense of burglary. A defendant can be convicted for being both a burglar and a thief (a robber and a grand thief or an extortionist and a thief) notwithstanding that the two charges are factually “intrinsically connected” and but for the burglary (the fear, force or threat) the theft could not, or would not, have occurred.

O’Hara was not “convicted of two crimes for the taking of only one sum of money.” He was convicted of two crimes, but only one (grand theft) was for the taking (obtaining) of money. The other crime (extortion) only involved the wrongful intent to obtain money in that the unlawful obtaining of money was the objective of the wrongful specific intent that was an element of the extortion charge in the very same way that an unlawful obtaining of money may be the objective of the wrongful specific intent that is an element of a burglary charge when the specific intent in the burglary is to commit the felony of grand theft within the burglarized structure. O’Hara was convicted of extortion for maliciously communicating a threat with the specific intent to accomplish the wrongful obtaining of money.

The majority opinion states that by the extortion statute (§ 836.05, Fla.Stat.) “the legislature has proscribed the taking of money by extortion.” The extortion statute does not proscribe “the taking of money.” It proscribes a malicious threat to accuse, to injure, to expose or to impute, made “with intent thereby to extort money or any pecuniary advantage whatsoever.” The actual taking of money is not thereby made an element of statutory extortion. When a threat is made with the requisite malice and specific intent the crime of extortion occurs and is complete whether or not any money is taken. Therefore, contrary to the assertion in the majority opinion, the extortion statute was obviously not meant to punish for the taking. Furthermore, the intent of the legislature is not controlling as to whether any two statutory offenses are, or are not, “the same offense” for constitutional double jeopardy and due process purposes. The legislature cannot, constitutionally, intend for a person to be convicted twice for what is substantively “the same offense” and, while the legislature could intend for a person to be punished but once when convicted of two different offenses it has evinced a contrary intent by the enactment of section 775.-021(4), Florida Statutes (1983). Moreover, if the intent of the legislature was relevant as to whether or not two particular statutory offenses proscribed the exact same criminal conduct that legislative intent would not be surmised or divined but would be determined by comparing the elements of the two offenses for substantive difference. There is no reason to believe the legislature intended the extortion statute in chapter 836, Florida Statutes, to prohibit the same conduct prohibited by the theft statute in Chapter 812 in view of the fact that each statute has elements the other statute does not.

While both the offense of statutory grand theft (§ 812.014, Fla.Stat.) and the offense of statutory extortion (§ 836.05, Fla.Stat.) have alternative or disjunctive elements, the potential double jeopardy consequences of that fact, discussed in Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981), and cited in the majority opinion, have no application in this case. The specific intent element of each of these two offenses is, perhaps, somewhat similar. However, the specific element in extortion to extort or wrongfully compel action or inaction appears to be substantively different from the specific intent element in theft to deprive one of the use of property. Even if this one intent element was the same and common to both offenses it would not make the two offenses substantively “the same offense” because, as explained in the dissent in Rodriquez, one difference in law or fact makes a substantive difference between two statutory offenses or two criminal charges, but innumerable common elements in two statutory offenses or innumerable common facts supporting two criminal charges do not make the two statutory offenses or the two criminal charges substantively “the same offense” for double jeopardy or due process purposes.

The rationale and result in the majority opinion, while consistent with other cases from this court, is, in rationale and result, in direct conflict with Borges v. State, 415 So.2d 1265 (Fla.1982); Taylor v. State, 138 Fla. 762, 190 So. 262 (1939); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981). See also Madry and Banks v. State, 448 So.2d 8 (Fla. 5th DCA 1984) and Hedges v. State, 448 So.2d 5 (Fla. 5th DCA 1984). Also see § 775.021(4), Fla.Stat. (1981).

      . § 812.014(2)(b)2, Fla.Stat. (1981).

      . § 812.014(2)(b)5, Fla.Stat. (1981).

      .§ 812.014(2)(b)6, Fla.Stat. (1981).

      . Borges v. State, 415 So.2d 1265 (Fla.1982).

      . Bell v. State, 437 So.2d 1057 (Fla.1983).

      . See Giddings v. State, 442 So.2d 336 (Fla. 5th 1983); Madry and Banks v. State, 448 So.2d 8 (Fla. 5th DCA 1984); Hedges v. State, 448 So.2d 5 (Fla. 5th DCA 1984).

      . See, e.g., Jackson v. State, 404 So.2d 369 (Fla. 5th DCA 1981), quashed, 417 So.2d 985 (Fla. 1982); Stone v. State, 402 So.2d 1222 (Fla. 5th DCA 1981); James v. State, 399 So.2d 424 (Fla. 5th DCA 1981).

      . See, e.g., Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980).

      . Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981); Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981).

      . See Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982), reversed in part, 437 So.2d 1057 (Fla. 1983), and Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982).

      . See, e.g., Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983); Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983), rev. granted, No. 63,807 (State v. Baker); Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982), rev. granted, Nos. 63,135 (Baker v. State) and 63,269 (State v. Baker); Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982), reversed in part, 437 So.2d 1057 (Fla. 1983).

      . See, e.g., Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983).

      . Harrielson v. State, 441 So.2d 691 (Fla. 5th DCA 1983).

      . Bell v. State, 437 So.2d 1057 (Fla.1983).

      . Giddings v. State, 442 So.2d 336 (Fla. 5th DCA 1983).

      . Ubi eadem ratio ibi; idem jus; et de simili-bus idem est judicium. Where there is the same reason, there is the same law; and where there are similar situations, the judgment is the same.

      . See also Gaither v. State, 436 So.2d 289 (Fla. 2d DCA 1983).

      . See cases cited in n. 8, supra. See also Gaither v. State, 436 So.2d 289 (Fla. 2d DCA 1983).


author: WATSON, R.O., Associate Judge.

text:
    Richard G. WOODRING, Appellant, v. STATE of Florida, Appellee.
    No. 82-1489.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    Rehearing Denied April 16, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona'Beach, for appellee.
   WATSON, R.O., Associate Judge.

Defendant, Richard Garrett Woodring, was found guilty by a jury of trafficking in cocaine.

The jury instructions were recorded by the trial judge and over objection of the defendant, a tape player and the tape recorded jury instructions were sent to the jury room for use during deliberations.

After four hours of deliberation, the jury sent a note to the judge:

Is the only difference between trafficking in cocaine and possession with intent to sell, manufacture or deliver, the amount of cocaine involved (28 grams)?

The trial judge responded in writing:

[Pjlease listen to the tape to determine the elements of the charges.

The record is silent as to whether the attorneys were notified of the jury’s question and of the judge’s note to the jury. There is no record of a motion for new trial alleging lack of notice nor did defense counsel file any affidavits.

The submission to the jury of tape recorded jury instructions was approved in United States v. Watson, 669 F.2d 1374 (11th Cir.1982). In Dewitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983), this court affirmed a conviction because no prejudice had been shown in permitting a tape recording of the jury instructions and a tape player to go to the jury room. However, we indicated that such a “practice” should be discouraged.

This case is a good example of why we discourage tape recorded jury instructions. Although the Florida Rules of Criminal Procedure do not prohibit the submission of tape recorded jury instructions to the jury, rule 3.410 provides:

[A]nd the court may give them such additional instructions.... (emphasis added)

A number of cases hold that the giving of additional instructions is optional, but once the court determines the jury should be reinstructed, the judge must reinstruct on all matters about which the jury inquired. Chappell v. State, 423 So.2d 984 (Fla. 3d DCA 1982) and cases cited in Chappell.

The court determined additional instructions were required because the judge referred the jury to the recorded instructions and asked them to listen to the elements of the charges. The court did not give them additional instructions as required by rule 3.410, but left the jury to decide which instructions should be repeated. No one knows whether the jury heard the appropriate instructions or whether they heard any instructions. Such a procedure was prejudicial to the defendant.

Because of the disposition of this case, it is not necessary to consider the other matters raised by defendant.

The judgment and sentence are reversed and the case is remanded for a new trial.

REVERSED and REMANDED.

ORFINGER, C.J., and COWART, J., concur.