author: PER CURIAM. EHRLICH, Judge, McDONALD, Judge,

text:
    Larry Joe JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 58713.
    Supreme Court of Florida.
    Nov. 17, 1983.
    Rehearing Denied Jan. 16, 1984.

      Milo I. Thomas, Jr., Public Defender, Third Judicial Circuit, Lake City, and Michael J. Minerva and Clifford L. Davis, Sp. Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of a capital felony for which a sentence of death was imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant Larry Joe Johnson was convicted of first-degree murder and armed robbery. At the trial Patty Burks testified that on March 16, 1979, she and Johnson stopped at a service station along Interstate Highway 10 in Madison County. She said that Johnson aimed a sawed-off shotgun at the proprietor while she took money from the cash register. She testified that after she left the building, Johnson shot the proprietor. They drove on to Kentucky where Burks, through her mother, informed the police of the murder. The police arrested Johnson for violating probation and later turned him over to Florida authorities. Found in his car were a sawed-off shotgun and number five shot shells, the same type of shot found in the victim’s body.

In accordance with the jury’s recommendation, the trial judge imposed a sentence of death for the offense of first-degree murder. Johnson was sentenced to life imprisonment for the offense of armed robbery. In this appeal, Johnson argues that the sheriff should not have been allowed to act as bailiff, that the prosecutor’s closing arguments were improper and prejudicial, and that his sentences were improperly imposed. Since we find no reversible error was committed, we affirm.

Johnson’s first argument on appeal is that he was denied his fourteenth amendment due process right to be tried by an impartial jury. This argument is based on the assertion that the county sheriff, who had participated in the investigation of the crimes and assisted counsel in the selection of the jury, acted as bailiff during the trial. Johnson points out that in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), the United States Supreme Court held that it was a violation of due process to allow two deputies who were material witnesses for the state to act as custodians of the jury even though there was no proof of improper communication between them and the jury. The Court concluded that since the credibility of the witnesses was a deciding factor in the case, the procedure was improper and prejudice was inherent in the continual association of the witnesses with the jury. Johnson argues by analogy that prejudice is also inherent in the present situation where the sheriff helped the prosecution select the jury and then acted as bailiff.

Long before Turner was decided this Court held that prejudice would be presumed where a material witness for the prosecution was allowed to act as bailiff. See Owens v. State, 68 Fla. 154, 67 So. 39 (1914). However, the Court has never extended this holding to cases where the bailiff’s testimony was not material to the case. See Rhone v. State, 93 So.2d 80 (Fla.1957); Moseley v. State, 60 So.2d 167 (Fla.1952). Thus we are not aligned with those jurisdictions that hold that the mere association of the bailiff with the prosecution is sufficient cause to reverse a conviction. See 4 C. Torcia, Wharton’s Criminal Procedure § 563 (12th ed. 1976); Annot., 38 A.L.R.3d 1012 (1971).

Different considerations apply when the bailiff has helped in the investigation and in the selection of the jury than apply when the bailiff is a material witness. In Turner the Supreme Court emphasized that the credibility of the witnesses was enhanced by their continued association with the sequestered jurors during the trial. Because of the witnesses’ continual and close association with the jury, the Court found that their credibility in the eyes of the jury was affected by factors taking place outside of the courtroom. In this case the sheriff did not testify so his credibility was not an issue. Therefore we are not faced with the issue of whether the jury may have been influenced by extraneous factors in assessing the credibility of a witness.

In Smith v. State, 251 Miss. 241, 169 So.2d 451 (1964), while the jury was being empanelled and tendered to the state, the district attorney motioned for the sheriff and his deputies to retire with him to pass upon the jury. This was done in the presence of the jury. Over the defendant’s objections, the trial court later appointed two of the deputies as bailiffs. The Mississippi Supreme Court reversed the conviction on the ground that an appearance of impropriety might weaken the public’s confidence in the judiciary.

We agree with the basic tenet in Smith that it is not good practice for the bailiff to help select the jury. However, we disagree with the conclusion that such a practice is so inherently prejudicial as to require reversal of a conviction. Unlike the situation where the bailiff testifies and his credibility is affected by his close and continual association with the jury, for the bailiff to assist in the selection of the jury does not necessarily have a direct bearing on any issue to be determined by the jury. Therefore prejudice cannot be inferred but must rather be proven.

Johnson has failed to show how he has been prejudiced in this case. The record shows that it is not unusual for the sheriff to assist the state attorney in selecting a jury. Because of the small size of Madison County, the sheriff’s staff is not very large so the sheriff himself often acts as the bailiff. He is not allowed to do so when he is a witness. The sheriff testified that during voir dire he did carry on whispered conversations with the state attorney. He said these conversations took place about fifteen feet behind and to the right of the jury box and were outside of the prospective jurors’ hearing. He said that he had not and would not discuss the case with any members of the jury. The court found no improprieties had been committed. We therefore find that Johnson was not denied his right of due process under the fourteenth amendment to be tried by an impartial jury.

Appellant argues that on three separate occasions during the closing arguments of the penalty phase of the trial, the prosecutor made improper comments. We will not consider two of those occasions since appellant failed to object. Clark v. State, 363 So.2d 331 (Fla.1978). As for the third occasion, the prosecutor argued as follows:

You have heard some evidence presented by the defense here designed to tug at your heart strings, to show you that the defendant was a living, breathing, human being with feelings possessed by an ordinary person. You have become acquainted with his family here today. Another family, perhaps you haven’t become closely associated with, that is the [victim’s] family, will be facing this holiday season one short.

Defense counsel immediately objected and requested a bench conference. At the bench defense counsel requested that the jury be instructed to disregard the comment and moved for a mistrial. The trial court sustained the objection but denied the motion for mistrial. The trial court also found that it would be inappropriate to say anything further to the jury since the comment was not prejudicial.

) Appellant is correct in contending that during closing arguments a prosecuting attorney should not attempt to elicit the jury’s sympathy by referring to the victim’s family. Grant v. State, 171 So.2d 361 (Fla.1965), cert. denied, 384 U.S. 1014, 86 S.Ct. 1933, 16 L.Ed.2d 1035 (1966); Pait v. State, 112 So.2d 380 (Fla.1959). Although this Court reversed the defendants’ convictions in the two cited cases, the same result is not required in this case. In both cases the references to the families of the victims were but small parts of closing arguments the whole tenor of which were improperly emotional and prejudicial. In this case, there was a single comment made at the sentencing portion of the trial in response to the testimony of the defendant’s relatives in his behalf. Although improper, the comment was not so prejudicial as to have influenced the jury to render a more severe recommendation than it would have otherwise and is therefore not reversible error. See Darden v. State, 329 So.2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).

After the penalty phase of the trial, the jury recommended the death penalty. The trial judge adopted this recommendation, finding three aggravating circumstances: that appellant had previously been convicted of a felony involving violence and was under sentence of imprisonment; that the murder was committed during the commission of a felony and for pecuniary gain; and that the murder was committed to avoid arrest and to hinder law enforcement. The judge found no mitigating circumstances.

Appellant first challenges the imposition of the death sentence by asserting that the jury was improperly influenced by various reasons, some of which we have already discussed. Since none of the reasons mentioned establish any improper prejudice, we find that the jury was not improperly influenced in reaching its recommendation.

Next appellant argues that the court erred in finding as an aggravating circumstance that the murder was committed to avoid arrest and to hinder law enforcement. This finding was based on the testimony of Patty Burks who said that appellant explained he killed the proprietor because “dead witnesses don’t talk.” Appellant argues that Ms. Burks’ testimony was not credible because she was only seventeen and a participant in the crime. The credibility of a witness is for the finder of fact, not an appellate court, to determine. The testimony to appellant’s admission is sufficient proof that he committed the murder to eliminate a witness to the robbery. This evidence supports the trial judge’s finding that the murder was committed for the purpose of avoiding arrest or hindering law enforcement. Knight v. State, 338 So.2d 201 (Fla.1976); Meeks v. State, 339 So.2d 186 (Fla.1976), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978).

Appellant also contends that the court erred in not finding as a mitigating circumstance that appellant had no significant history of prior criminal activity. The judge refused to find this as a mitigating circumstance because appellant had been previously convicted of assault for shooting his wife. Appellant claims that a single conviction does not constitute a significant history of prior criminal activity. We disagree. In determining what is significant criminal activity, the trial judge may consider the severity as well as the number of prior offenses. See State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). We have upheld holdings that this mitigating circumstance does not apply when a defendant has been previously convicted of a single serious offense such as murder, Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981), or breaking and entering, Proffitt v. State, 315 So.2d 461 (Fla.1975), aff'd, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). We therefore hold that the trial judge was correct in not finding this as a mitigating circumstance.

Appellant also argues that the trial judge erred in not finding his emotional and mental state to be a mitigating circumstance under subsections 921.141(6)(b), (e), and (f), Florida Statutes (1977). With respect to these mitigating circumstances, the trial court found:

Defendant was able to appreciate the criminality of his conduct and that there is no basis for concluding that the capacity of the Defendant to conform his conduct to the requirements of law was substantially impaired. There was some conflicting testimony on this point. The Defendant was examined by two psychiatrists and two clinical psychologists. All of the evidence from the experts indicated that the Defendant was able to distinguish that which is “right” from that which is “wrong” and that he was legally sane at all material times. However, the testimony from one clinical psychologist, Dr. Charles R. Figley, advanced the theory that the Defendant, at the time he actually pulled the trigger, did so from impulsive behavior which had a direct causal relationship to his experience in Vietnam. This particular witness had written a book consistent with this theory, but readily admitted that he was one of the few people who have done any work in this area. The theory or opinion was to some extent also supported by the testimony of another clinical psychologist, Dr. McMahon. Her opinion suggested that the Defendant suffered from organic brain damage and that he was of border-line intelligence. The testimony of the two clinical psychologists was disputed by the two psychiatrists. Taken as a whole, together with the Court’s own observations of the Defendant during the trial, as well as his testimony in pretrial proceedings, this Court concludes that there were no mental or psychological factors sufficiently significant to support a conclusion as to any mitigating circumstance. The evidence clearly showed that the Defendant planned the robbery of the service station, executed the plan, and killed the service station operator because “dead witnesses don’t talk.” The State introduced into evidence the shotgun with which the Defendant killed the service station operator. The shotgun was owned by the Defendant for a substantial period of time prior to the homicide and was found in his possession two days after the homicide was committed. A visual examination of the shotgun plainly shows that the barrel had been sawed off and the stock had been replaced with a pistol grip. Such a shotgun had only one practical purpose — the use for which it was in fact made. This leads the Court in part to the conclusion that the Defendant fully appreciated the criminality of his conduct and had no intention of conforming his conduct to the requirements of law. It further supports this Court’s conclusion that the Defendant was not acting under extreme duress or under the substantial domination of another person.

It was within the trial judge’s province to grant the two psychologists’ testimony little or no weight. Lucas v. State, 376 So.2d 1149 (Fla.1979). We therefore find that the trial judge did not err in rejecting appellant’s contention that these mitigating circumstances applied.

Appellant takes issue with the fact that the trial judge in finding that these mitigating circumstances did not apply took into account his “own observations of the Defendant during the trial, as well as his testimony in pretrial proceedings.” Appellant argues that the trial court’s use of personal observations without warning and without an opportunity for rebuttal violated his fundamental right of due process. Appellant compares this procedure to that of a trial judge’s considering a presentence investigation report without the defendant’s knowledge, which procedure was disapproved in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The analogy is not appropriate. Whereas a defendant may not know what information is contained in a presentence investigation report he must know how he is behaving in the courtroom. In this situation the judge is not relying on information that is not available to the defendant. Although justice should be blind, judges are not. They may properly notice a defendant’s behavior and draw inferences concerning matters such as whether the defendant is capable of appreciating the criminality of his conduct. It would help if a judge who relies on his personal observations would describe them in detail in order to give a reviewing court a basis for deciding whether his conclusions are correct. However, in this case the trial judge gave sufficient reasons to support his conclusions independent of the personal observations, so we find no error.

Finally, appellant argues that he should not have been sentenced separately for the crime of armed robbery on the ground that it was a lesser included offense of felony-murder. See State v. Hegstrom, 401 So.2d 1343 (Fla.1981). Since we have already concurred with the court’s finding that appellant committed this homicide for the purpose of eliminating a witness, there is sufficient proof of premeditation. Therefore, the armed robbery was not a lesser included offense and Hegstrom does not apply.

We conclude there is competent substantial evidence supporting the trial judge’s findings with respect to the aggravating circumstances. Apparently in attempt to comply with the reasoning in Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), the trial judge found as a single aggravating circumstance that appellant had previously been convicted of a felony involving violence and was under sentence of imprisonment. This finding was based on the fact that appellant was still under sentence for having committed a second-degree assault in Kentucky. We note that there was no need to treat these separate statutory aggravating circumstances as a single aggravating circumstance because they are “two separate and distinct characteristics of the defendant, not based on the same evidence and the same essential facts.” Waterhouse v. State, 429 So.2d 301, 307 (Fla.1983). The trial judge did, however, correctly apply Provence in finding as a single aggravating circumstance that the murder was committed during the commission of a robbery and was committed for pecuniary gain. The judge also correctly applied the reasoning of Provence in finding as a single aggravating circumstance that the murder was committed to avoid or prevent a lawful arrest and was committed to disrupt or hinder the enforcement of the law. See Francois v. State, 407 So.2d 885 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982).

• Having found no reversible error we affirm appellant’s convictions for first-degree murder and armed robbery and his respective sentences of death and life imprisonment.

It is so ordered.

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

EHRLICH, J., concurs specially with an opinion.

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

EHRLICH, Judge,

specially concurring.

I am of the opinion that if the sheriff or one of his deputies participates in the trial by counseling with the prosecutor during the selection of the jury or during the course of the trial, he should not be the bailiff. By assisting the prosecutor, he is identified in the eyes of the jury as a member of the prosecutor’s team. The bailiff on the other hand, should have an absolutely neutral role in the trial proceedings. He makes certain that the jury’s seclusion is not disturbed except by direction of the Court. He ministers to the jury’s needs. He’s the one person who can, and of necessity does, communicate with the jury during the course of the trial as the need may arise. The lawyers are prohibited from talking to or otherwise fraternizing with the jury, and the jury is generally advised of this fact so that they will understand why counsel, who may be known to them, are treating them as pariahs. But not so the bailiff. If the jury members have a need, they turn to the bailiff. The role of the neutral bailiff and the role of one who is in effect on the prosecutor’s team are mutually exclusive. The roles don’t mix.

In the case at hand, the sheriff did counsel with the state attorney within view of the jury. Because of personnel problems, the sheriff acted as the bailiff also. This may not be uncommon in small rural counties. While no improprieties may actually take place, and there is no intimation in this record that any did, this dual role does carry the appearance and the potential of impropriety.

I think that if the state attorney needs the sheriff or his deputy’s assistance during the trial, that someone else should serve as bailiff. To do otherwise may very well jeopardize the state’s case.

While I disapprove of and recommend against the sheriff’s dual role employed in the trial of this case, nonetheless I concur in the judgment of conviction and the sentence and the opinion of the Court because I find no evidence of actual impropriety and no demonstrable harm to the defendant.

McDONALD, Judge,

concurring in part and dissenting in part.

Sheriff Peavy acted as investigator of the crime, confidant to the prosecutor when the jury was selected, and then custodian of the jury. These services are incompatible with each other and should not be allowed. A close relationship exists between a bailiff and the jury of which he is in charge. The bailiff looks after the jury’s welfare, frequently converses with them, and when sequestered for meals is in attendance with them.

I agree with the majority that this happenstance alone does not require a reversal but it alerts this Court that we should unqualifiedly satisfy ourselves that the sheriff’s acting as a bailiff affected neither the conviction nor the jury’s recommendation on the sentence. The evidence of guilt is overwhelming in this case and I am fully satisfied that even if Sheriff Peavy had inadvertantly communicated with the jury on some of the issues the verdict would be the same. The test of harmless error enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is clearly present in the guilt phase. Less clear is the sentencing phase and the jury’s recommendation of death. While Johnson clearly earned several aggravating circumstances, he also presented some mitigating testimony. A sympathetic jury could logically have recommended life. I do not suggest that the sheriff intentionally subjected the jury to the views of the state, but I would be extremely surprised if the jury felt that it would be displeasing him if it recommended death.

This is a sensitive area. The practice here should not be encouraged. Because of that I vote to grant a new sentencing hearing. I would affirm the conviction.

OVERTON, J., concurs.


source: Caselaw Access Project

author: PER CURIAM. McDONALD, Justice,

license: Public Domain

text:
    AETNA CASUALTY & SURETY CO., Petitioner, v. The WACKENHUT CORP., Respondent.
    No. 62767.
    Supreme Court of Florida.
    Nov. 17, 1983.
    Rehearing Denied Jan. 16, 1984.
    Mark J. Mintz of Ress, Gomez, Rosenberg & Howland, North Miami, and Sheridan K. Weissenborn of Papy, Poole, Weis-senborn and Papy, Coral Gables, for petitioner.
    Richard H.W. Maloy, Coral Gables, for respondent.
   PER CURIAM.

Approved. 418 So.2d 1013. U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983); Morrison v. Hugger, 369 So.2d 614 (Fla. 2d DCA 1979).

It is so ordered.

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

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

McDONALD, Justice,

dissenting.

I dissent. Wackenhut’s policy states that Aetna will pay “all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage.” This is the same language as in the insurance policy involved in U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983), and I am still not able to equate “punitive damages” to “damages because of bodily injury.”

The above-quoted language from Wack-enhut’s policy is a standard provision found in many insurance policies. Numerous courts have considered this language in the context of punitive damages. They generally center on the obligation to pay “all sums” and decide that “all sums” means all sums, including punitive damages. Southern Farm Bureau Casualty Insurance Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582 (1969); Greenwood Cemetery, Inc. v. Travelers Indemnity Co., 238 Ga. 313, 232 S.E.2d 910 (1977); Scott v. Instant Parking, Inc., 105 Ill.App.2d 133, 245 N.E.2d 124 (1969); Continental Insurance Cos. v. Hancock, 507 S.W.2d 146 (Ky.1973); State v. Glens Falls Insurance Co., 137 Vt. 313, 404 A.2d 101 (1979); Hensley v. Erie Insurance Co., 283 S.E.2d 227 (W.Va.1981). Several courts, however, have centered on the obligation to pay “damages because of bodily injury.” Because punitive damages are not awarded as compensation for bodily injury, these courts have held that this contract provision does not make an insurance company liable to pay a punitive damage award against its insured. Braley v. Berkshire Mutual Insurance Co., 440 A.2d 359 (Me.1982); Schnuck Markets, Inc. v. Transamerica Insurance Co., 652 S.W.2d 206 (Mo.Ct.App.1983); Nationwide Mutual Insurance Co. v. Knight, 34 N.C. App. 96, 237 S.E.2d 341, cert. denied, 293 N.C. 589, 239 S.E.2d 263 (1977).

In my opinion these latter cases are correct. There are great differences between punitive damages and damages awarded because of bodily injury. Punitive damages are awarded for the protection of society and to deter similar misconduct. They are not compensation for injuries, but, rather, punishment. Punitive damages are, therefore, separate and apart from and in addition to actual damages and are measured by the extent of the actor’s malice. Damages because of bodily injury, on the other hand, are designed to compensate the victim for the injury suffered. Therefore, they cover only awards of actual or compensatory damages.

I do not believe that the instant insurance policy covers punitive damages or that Aetna is obligated to pay the award against Wackenhut.

In his concurring opinion to U.S. Concrete Justice Ehrlich states that, in order to find an employer vicariously liable for an act of its employee, Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), requires that some fault on the employer’s part be found. The jury in the instant case, because of the instructions given here, must have found some fault on Wackenhut’s part. In assessing punitive damages against Wackenhut the jury sought to punish it for its misdeeds. If insurance pays this award, Wackenhut is not being punished. A finding that this insurance policy provided coverage for punitive damages thwarts the jury’s reason for imposing them. I would quash the holding of the district court in this case.

OVERTON, J., concurs.


author: PER CURIAM. SHAW, Justice,

text:
    Terrell M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 59811.
    Supreme Court of Florida.
    Nov. 23, 1983.
    Rehearing Denied Jan. 13, 1984.

      James B. Gibson, Public Defender and Ronald K. Zimmet, Chief Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and Mark C. Men-ser and Evelyn D. Golden, Asst. Attys. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction for first-degree murder and sentence of death. We have jurisdiction. Article V, § 3(b)(1), Fla. Const. We affirm the conviction and the sentence.

On December 4, 1979, Terrell Johnson went to Lola’s Tavern in Orange County to redeem a pistol he had pawned to James Dodson, the bartender/owner of the tavern. Although Dodson had given Johnson fifty dollars when the gun was pawned, he demanded one hundred dollars to return it. Before paying for the gun, Johnson asked to be allowed to test fire it and took the gun to an open field across the road from the bar where he fired several shots. While returning to the bar, Johnson, irate at what he considered to be Dodson’s unreasonable demand, decided to rob the tavern. Johnson told police that he took Dodson and a customer, Charles Himes, into the men’s room at the end of the bar, intending to tie them up with electrical cord. The customer lunged at Johnson and he began firing wildly, shooting both men. He then returned to the bar and cleaned out the cash drawer, also taking Dodson’s gun, which was kept under the bar. As he was wiping the bar surfaces to remove fingerprints, Johnson heard movement from the back room and returned to find the customer still alive. Johnson shot him again, not, according to Johnson, “to see him dead,” but to “stop his suffering.”

Several weeks later Johnson was arrested in Oregon for an unrelated crime. He still had Dodson’s gun — he had sold the murder weapon to an acquaintance in Florida — and thus was linked to the Florida murders based on information from the National Crime Information Center.

Johnson was tried in Orange County on an indictment charging two counts of first-degree murder. He admitted the killings but claimed they were provoked by the customer’s attack and denied all premeditation. He was convicted of second-degree murder for the death of the customer and of first-degree murder in Dodson’s death. On the first-degree conviction the jury recommended and the trial court imposed the death penalty.

The case was first appealed to the Florida Supreme Court in 1980. At that time the transcript of the trial court proceedings was discovered to be virtually incomprehensible because of omissions (including omissions of several bench conferences and the entire voir dire of the venire panel), misspellings, and obvious inaccuracies in either the recording or the transcription of the trial. This Court therefore relinquished jurisdiction to the trial court to attempt to reconstruct the record and to hold an evidentiary hearing on the accuracy of the transcript. The court reporter revisited her stenographic notes and met with the trial judge and trial counsel. The corrected and supplemented transcript was the subject of extensive hearings into its accuracy and reliability. At the close of those hearings, the presiding judge found the corrected transcripts to contain “no significant or material fault ... [nor to show] even one prejudicial omission or error” and issued an order submitting the revised transcript to this Court. It is this transcript upon which we rely in making our review of the record.

This revised transcript is also the subject of appellant’s first point on appeal. He refers to inconsistencies between the original and the corrected transcripts, to the time elapsed between the trial and the reconstruction, and to possible omissions which make effective assistance of appellate counsel and independent appellate review impossible. However, he is unable to point to any omission, inconsistency or inaccuracy which prejudices the presentation of his case. The reconstruction and the evi-dentiary hearing were conducted pursuant to the order of this Court and in compliance with Florida Rule of Appellate Procedure 9.200(f). At the evidentiary hearing the trial judge, the court reporter and both trial attorneys testified to the substantial accuracy and completeness of the record in all material regards. In the absence of some clear allegation of prejudicial inaccuracy we see no worthwhile end to be achieved by remanding for new trial.

Appellant’s second point on appeal merits particular attention because it relates to the issue of the admissibility of certain evidence both as it was presented to the jury in support of the first-degree murder verdict and as it relates to the finding, as a statutory aggravating factor, that the murder was cold, calculated and premeditated. The state presented evidence that Dodson’s death had been caused by a close-range execution-style shot to the back of the head. This evidence consisted of testimony by the medical examiner about the pattern of stippling around the wound and testimony by police officer Park about the results of experiments he had conducted with the murder weapon. Park testified that he had fired the gun at white paper from various distances, and he described the marks made on the paper by the unexploded gunpowder discharged with the bullet. Park was not qualified as an expert witness and offered no opinion testimony. Neither did he attempt any comparison between the fatal wounds and the marks on the paper target.

Appellant cites McClendon v. State, 90 Fla. 272, 105 So. 406 (1925) for the proposition that admission of this evidence was prejudicial error. In McClendon, this Court ruled, on facts strikingly similar to those in the case at bar, that paper targets showing powder burns from shots fired at various ranges should not have been admitted into evidence on the issue of the range at which McClendon’s alleged victim had been shot because it could not assume “that the effect of pistol fire upon human flesh and upon paper or cloth targets would be essentially similar, in respect to resulting powder burns or marks, when the requisite supporting proof is lacking.” 90 Fla. at 280, 105 So. at 409.

The rule of “essential similarity” between test conditions and actual conditions first enunciated in Hisler v. State, 52 Fla. 30, 42 So. 692 (1906), has been eroded as to other types of experimental evidence since that time. Janke v. Corinthian Gardens, Inc., 405 So.2d 740 (Fla. 4th DCA 1981), cert. denied, 413 So.2d 876 (Fla.1982); Vitt v. Ryder Truck Rentals, 340 So.2d 962 (Fla. 3d DCA 1976). We are convinced that the issue is one of the weight to be given the evidence rather than its relevance or materiality. We, therefore, recede from McClendon insofar as it holds such evidence inadmissible, and we find no error on the record now before us.

Third, appellant raises a Wither-spoon objection to the exclusion for cause of prospective jurors Horne and Bowman. While neither of these venirewomen stated on the record that she would “automatically vote against the imposition of capital punishment,” Witherspoon v. Illinois, 391 U.S. 510, 516 n. 9, 88 S.Ct. 1770, 1774 n. 9, 20 L.Ed.2d 776 (1968), a review of the voir dire shows that they both made

unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Id. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in the original). The totality of their testimony shows that excusing these women for cause was proper.

Fourth, appellant argues that the trial court should have automatically dismissed the charges against him once the 120-day limits specified in the Interstate Agreement on Detainers (IAD), section 941.45, Florida Statutes (1979), had elapsed. Appellant was brought to Florida from Oregon, where he was serving a sentence, pursuant to the IAD. He was booked into the Orange County jail May 15, 1980 and brought to trial September 23, 1980, obviously more than 120 days after entering the custody of the State of Florida. During this period he was represented by counsel and the IAD documents were a matter of record. Nonetheless, the appellant agreed to a continuance of the trial date from August 12, when trial was originally scheduled. Appellant failed to raise the issue of the 120-day limit at that time or at any time before bringing this appeal.

We cannot find any reason to hold the IAD’s 120-day limit to be unwaivable and self-executing. Florida’s speedy trial rule, Florida Rule of Criminal Procedure 3.191, protects a constitutional right enunciated in Florida’s Declaration of Rights, article I, section 16, Florida Constitution. This fundamental right is neither unwaiva-ble nor self-executing. We see no justification for granting greater dignity to a statutory provision designed to provide for cooperation between the states to effect the “expeditious and orderly disposition of ... charges” against one in custody of another state. § 941.45, Fla.Stat. (1979). The underlying policy of the IAD is to enhance the possibility of rehabilitation by resolving all outstanding charges against a convict regardless of which state has filed the charges. See § 941.45(1), Fla.Stat. (1979). We find no merit in this issue.

Appellant urges that the trial court erred in finding the homicide was committed in a cold, calculated and premeditated manner and that the homicide was committed to avoid lawful arrest. Appellant’s basic premise is that the main evidence supporting these findings was the testimony of Officer Park. According to this argument, had Park’s testimony been held to be inadmissible, the evidence would not have supported finding these aggravating factors beyond a reasonable doubt. As we have already ruled that Park’s testimony was admissible, we also find these factors to have been properly found.

We have reviewed the other aggravating factors relied upon by the trial court and find they were proper. By appellant’s own admission, the homicide was committed during a robbery and for pecuniary gain. These two factors were properly merged into one by the trial court. The defendant was under sentence for another crime at the time the murder was committed; Johnson was on parole at the time. The defendant had previously been convicted of felonies involving the use or threat of violence. Appellant argues that the trial court erred in instructing the jury that the felonies of which Johnson had been convicted, attempted robbery and attempted murder, were as a matter of law felonies involving the use or threat of violence. Appellant further contends that the trial court’s reliance on this factor was erroneous in the absence of evidence of actual violence used or threatened by appellant. Both robbery and murder involve violence per se; any attempt to commit these crimes must inherently involve the threat of violence. We find no merit here.

Having reviewed the record, we find no support for appellant’s other points on appeal and see nothing to be gained by discussing them.

Accordingly, we affirm the conviction of murder in the first degree and the sentence of death.

It is so ordered.

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

SHAW, J., dissents with an opinion.

SHAW, Justice,

dissenting.

I would remand for a new trial because the inadequacy of the reconstructed record precludes effective appellate advocacy and careful review. I do not see how a meaningful, independent review of this proceeding can be accomplished when the transcript contains omissions and inaccuracies. I recognize that a complete trial transcript is not required in every instance where there is an alternative adequate substitute. Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). I do not think we have an adequate substitute here.

In the context of providing indigent defendants with trial transcripts at state expense, the United States Supreme Court has identified two factors to be considered in determining need: “(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971) (footnote omitted). Our duty in cases where there has been a judgment of conviction for a capital felony and sentence of death is to review the entire record. § 921.141(4), Fla.Stat. (1979); Ferguson v. State, 417 So.2d 639 (Fla.1982). If we find that the interests of justice require a new trial, we must reverse. Fla.R.App.P. 9.140(f). In the event fundamental error has occurred at any stage of the trial, it is our obligation to discover the error and reverse the conviction or the sentence, as the case might be. This obligation exists regardless of whether defense counsel has discovered such an error. The scope of our review necessitates access to a transcript which reflects more than the general gist of the proceedings, one which is more than “substantially accurate.” The record contains omissions; the entire voir dire and numerous changes and additions were inserted some year and a half after the proceedings, when memories admittedly were dim. Reversible error can turn on a phrase. Did it occur here? We cannot be certain.

Moreover, appellate counsel did not participate in the trial and is in the same predicament as we are regarding the transcript. In Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), involving a federal criminal prosecution, the Court stated

when ... new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than that. For Rule 52(b) of the Federal Rules of Criminal Procedure provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” The right to notice “plain errors or defects” is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended.

Id. at 279-80, 84 S.Ct. at 426 (footnote omitted). In his concurrence, Mr. Justice Goldberg stated

appointed counsel must be provided with the tools of an advocate. As any effective appellate advocate will attest, thé most basic and fundamental tool of his profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law. Anything short of a complete transcript is incompatible with effective appellate advocacy.

Id. at 288, 84 S.Ct. at 431 (footnote omitted). When there is missing from a record a “substantial and significant portion” in a criminal appeal involving new appellate counsel, reversal is required even in the absence of a specific showing of prejudice. United States v. Selva, 559 F.2d 1303 (5th Cir.1977). The present condition of the transcript in this appeal, in my opinion, renders it the functional equivalent of a transcript with substantial and significant missing portions.

In my view an unequivocally accurate record of the proceedings below is required to enable counsel and this Court to ensure that justice is done.

I would reverse.


author: PER CURIAM.

text:
    In re FLORIDA RULES OF JUDICIAL ADMINISTRATION (DETERMINATION OF NEED FOR ADDITIONAL JUDGES).
    No. 64544.
    Supreme Court of Florida.
    Nov. 23, 1983.
   PER CURIAM.

Pursuant to article V, section 9 of the Florida Constitution, we hereby adopt Florida Rule of Judicial Administration 2.035 which sets forth the procedure for determining the need for additional judges, except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing, or redefining appellate districts and judicial circuits, and also sets forth criteria and additional work load factors. This rule identifies criteria, factors, and the process previously developed and utilized by this Court in making the determination of need. We also confirm our previous finding that these criteria and factors are not exclusive. Additional information may be considered when it is relevant to the determination of need or when unforeseen developments occur which have an impact on the needs of the judiciary. In re Certificate of Judicial Manpower, 428 So.2d 229 (Fla.1983); In re Certificate of Judicial Manpower, 396 So.2d 172 (Fla.1981).

This rule shall take effect on December 1, 1983. Comments or suggestions regarding this rule may be filed by any interested party on or before February 1, 1984.

It is so ordered.

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

Rule 2.035 Determination of Need for Additional Judges.

(a)Statement of Purpose

The purpose of this rule is to set forth uniform criteria used by the Supreme Court in determining the need for additional judges, except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing, or redefining appellate districts and judicial circuits, pursuant to article V, section 9, Florida Constitution. The criteria set forth in this rule have been identified and used by the Supreme Court in making this determination since article V was substantially revised in 1972. These criteria form the primary basis for our determination of need. Unforeseen developments, however, may have an impact upon the judiciary resulting in needs which cannot be foreseen or predicted by statistical projections. This Court, therefore, may also consider any additional information found by it to be relevant to the process. These criteria are considered in relation to each other, but they cannot be compressed into a mathematical formula.

(b) Criteria

1. Case load statistics based upon data supplied to the State Courts Administrator by the clerks of the circuit courts and district courts of appeal.

2. Growth, nature, and projections of population within a particular court’s jurisdiction.

3. Number of attorneys within a particular court’s jurisdiction.

4. The use and availability of retired judges to serve on a particular court.

5. The presence of non-lawyer county court judges within a particular circuit who by law cannot be assigned to assist with the circuit court case load.

6. The geographic size of a circuit, including travel times between courthouses in a particular jurisdiction.

7. The presence of state facilities and institutions in a particular jurisdiction.

8. Law enforcement activities in the court’s jurisdiction, including any substantial commitment of additional resources for state attorneys, public defenders, and local law enforcement.

9. Time since the last new judgeship was authorized for the particular jurisdiction.

10. The nature and complexity of cases coming before the courts in the jurisdiction.

11. Prior certifications which were not authorized by the legislature.

(c) Additional Work Load Factors

Because summary statistics reflective of the above criteria do not fully measure judicial work load, the Supreme Court will receive and consider, among other things, information about the time to perform and volume of the following activities, which also comprise the judicial work load of a particular jurisdiction:

1. Review appellate court decisions.

2. Research legal issues.

3. Review briefs and memoranda of law.

4. Participate in court conferences on pending cases.

5. Hear and dispose of motions.

6. Prepare correspondence, orders, judgments, and decisional opinions.

7. Review presentence investigative reports and predispositional reports in delinquency and dependency cases.

8. Review petitions and motions for post-conviction relief.

9. Perform administrative duties relating to the court.

10. Participate in meetings with those involved in the justice system.

11. Participate in educational programs designed to increase the competency and efficiency of the judiciary.

(d) Certification Process

In order to gather information about these criteria and additional work load factors, the State Courts Administrator will distribute a compilation of summary statistics and projections to each Chief Judge at a time designated by the Chief Justice. Each Chief Judge will then consider these criteria, additional work load factors, and summary statistics, and submit to the Chief Justice a request for any increases or decreases under article V, section 9 of the Florida Constitution which the Chief Judge feels are required. The Chief Justice and State Courts Administrator may then visit the Chief Judge and other representatives of the court submitting the request as well as representatives of The Florida Bar and the public to gather additional information and clarification about the need in the particular jurisdiction. The Chief Justice will submit his recommendations to the Supreme Court which will thereafter certify to the legislature its findings and recommendations concerning such need.

Comment: Article V, section 9 of the Florida Constitution authorizes the establishment, by rule, of uniform criteria for the determination of the need for additional judges, except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing, or redefining appellate districts and judicial circuits. Each year since the adoption of article V in 1972, this Court pursuant to section 9 has certified its determination of need to the legislature based upon factors and criteria set forth in our certification decisions. This rule is intended to set forth criteria and work load factors previously developed, adopted, and used in this certification process, as summarized and specifically set forth in In re Certificate of Judicial Manpower, 428 So.2d 229 (Fla.1983); In re Certificate of Judicial Manpower, 396 So.2d 172 (Fla.1981).


text:
    Robert PEAVY, Appellant, v. STATE of Florida, Appellee.
    No. 62115.
    Supreme Court of Florida.
    Dec. 8, 1983.

      Eric Wm. Hendon, Miami, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Robert Peavy appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. We affirm Peavy’s conviction, but vacate his sentence and remand for a new sentencing hearing.

A Dade County grand jury indicted Peavy for first-degree murder, robbery, and burglary. A jury convicted him as charged and recommended the death penalty. The trial court then sentenced Peavy to death for the murder and to terms of life imprisonment for the robbery and burglary-

The charges against Peavy stemmed from the following facts. On the evening of May 4, 1980 a resident of a rooming house in downtown Miami, unable to rouse his neighbor, had the manager open the door to the neighbor’s one-room apartment. Inside, the manager found the elderly tenant lying dead across his bed. The room had been ransacked, a television set and the victim’s watch were missing, and shaving cream had been sprayed on the door locks. The victim died from stab wounds. The police arrested Peavy after establishing that his fingerprints matched the fingerprints found on the top of the shaving cream can and on the victim’s cashbox.

Peavy now challenges the sufficiency of the evidence to convict him of these crimes. At trial Peavy testified that he had helped the victim carry a bag of groceries home from a store ten to twelve blocks from the victim’s residence. He could not remember the date and stated that, after he and the victim ate some fruit and chatted, the victim gave him two dollars and he left the apartment.

The state produced only circumstantial evidence, but we find the jury could reasonably have believed that evidence rather than Peavy’s testimony. Circumstantial evidence must not only be consistent with the defendant’s guilt, but must be inconsistent with any reasonable hypothesis of innocence. Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981); Mayo v. State, 71 So.2d 899 (Fla.1954). The state’s evidence meets this test, and, after reviewing the record, we find the evidence sufficient to support the convictions.

The neighbor testified that he had never known the victim, who walked only with the aid of a cane, to walk as far as the store where Peavy said he had met him. Indeed, the witness stated that he did not know if the victim were physically able to walk that far. This neighbor testified that he usually shopped for the victim and, the morning of the killing, had purchased some groceries for the victim. He stated that he had observed the apartment to be neat and orderly when he returned with the groceries. Witnesses testified, however, that when the body was found that evening the apartment was messy and appeared to have been ransacked. Moreover, papers kept in the victim’s cashbox had been strewn about the room, and shaving cream had been sprayed on the door locks.

This testimony, when coupled with Peavy’s fingerprints being found on the cashbox and on the top of the shaving cream can, demonstrates Peavy’s presence at the rime of the crimes. J.C. v. State, 377 So.2d 731 (Fla. 3d DCA 1979). In sum the evidence presented at trial is sufficient to support the convictions and justified the jury’s disbelief in Peavy’s story.

Peavy also claims that the court erred in instructing on felony murder. Not only did the evidence support the giving of such an instruction, but trial counsel failed to object to giving the felony-murder instruction. Florida Rule of Criminal Procedure 3.390(d) provides that instructions must be objected to at trial in order to be preserved for appeal. Jones v. State, 411 So.2d 165 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982). By failing to object at trial Peavy has waived this point on appeal, but, had he objected, he would have lost on the merits.

Turning to the sentencing portion of his trial, Peavy claims that section 921.141, Florida Statutes (1981), is unconstitutional both on its face and as applied. These claims have been made and considered previously, and we find no merit to them now.

The trial court, in sentencing Peavy to death, found that four aggravating circumstances — previous conviction of violent felony; committed during a felony; heinous, atrocious, and cruel; and cold, calculated, and premeditated — and two mitigating circumstances — no significant history of criminal activity and Peavy’s age — applied. We find that the mitigating circumstances and the first three aggravating circumstances are supported by the evidence. We do not agree with the trial court that the facts of this case establish that the murder was cold, calculated, and premeditated.

While some may view this homicide as cold, calculated, and premeditated, it does not meet the standard for finding this aggravating circumstance. Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). This murder occurred during the commission of a burglary and robbery and is susceptible to other conclusions than finding it committed in a cold, calculated, and premeditated manner. The trial court improperly found the existence of this aggravating circumstance because the evidence does not establish it beyond a reasonable doubt. Harris v. State, 438 So.2d 787 (Fla.1983); Jent v. State; Williams v. State, 386 So.2d 538 (Fla.1980); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974).

Striking out the fourth aggravating circumstance leaves three aggravating factors to be weighed against two mitigating factors. We therefore remand to the trial court for a new sentencing hearing. Moody v. State, 418 So.2d 989 (Fla.1982), cert. denied, — U.S.-, 103 S.Ct. 1213, 75 L.Ed.2d 451 (1983).

We affirm Peavy’s convictions and the sentences for burglary and robbery, but remand for resentencing for first-degree murder.

It is so ordered.

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

McDONALD, J., concurs in part and concurs in result in part with an opinion.

ADKINS, J., concurs with conviction but dissents as to sentence only.

McDONALD, Justice,

concurring in part and concurring in result in part.

I agree with the affirmance of the conviction and that this cause should be remanded for a new sentencing proceeding.

I disapprove of the finding that this homicide was especially cruel, atrocious, and heinous. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), sets the standard for establishing heinous, atrocious, and cruel:

What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Id. at 9. While the stabbing of this elderly victim was reprehensible, it was not “unnecessarily torturous” or so at variance with the “norm” of deliberate killing as to meet the Dixon standard. The medical examiner testified that, although the victim would have felt some pain, he lost consciousness within seconds and bled to death in a minute or less. Moreover, the body exhibited no defensive wounds, nor does it appear that the victim struggled with his killer. Compare Waterhouse v. State, 429 So.2d 301 (Fla.1983), and Breedlove v. State, 413 So.2d 1 (Fla.1982), cert. denied, — U.S.-, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Finally, the trial court, in finding the applicability of this circumstance, appears to have relied on what was done to the body after death. The kind of misconduct exhibited here does not warrant finding the murder to have been heinous, atrocious, and cruel. Simmons v. State, 419 So.2d 316 (Fla.1982); Halliwell v. State, 323 So.2d 557 (Fla.1975).

I would also suggest that prior to resen-tencing the trial judge obtain more information about the defendant. The record is quite sparse on this and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), seems to dictate such consideration.

       Peavy claims that the aggravating and mitigating circumstances are vague and overbroad, that § 921.141 violates the mandate of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), that the state is unable to justify the death penalty as the least restrictive means available to further a compelling state interest, and that the death sentence has been imposed in an arbitrary and capricious manner. These or very similar claims have been considered and rejected previously. See, e.g., Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Riley v. State, 433 So.2d 976 (Fla.1983); Hitchcock v. State, 432 So.2d 42 (Fla.1983); King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981).

       A sugary substance and a liquid were apparently poured into a large wound on the victim’s abdomen. The medical examiner testified that this wound was made after death.


text:
    Lawrence P. KUVIN, Petitioner, v. Kristina KUVIN, Respondent.
    No. 62151.
    Supreme Court of Florida.
    Dec. 8, 1983.

      R. Fred Lewis of Magill, Reid & Lewis, Miami, for petitioner.
    Sam Daniels of Daniels & Hicks, Miami, for respondent.
   PER CURIAM.

The husband petitions for review of Kuvin v. Kuvin, 412 So.2d 900 (Fla. 3d DCA 1982), asserting that the decision conflicts with several of this Court’s decisions, including Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The parties’ twelve-year marriage produced two children, aged eleven and four. The husband, an attorney, was forty-seven at the time of the dissolution. The wife, aged thirty-six, did not work outside the home during the marriage except for a period of a year and a half before the birth of the second child.

The trial judge was presented with evidence that the wife could earn $250 a week as a legal secretary and had a $200 monthly income from farm property. The husband’s net income was approximately $49,-500, or $4,121.60 a month. The marital home was valued at approximately $213,-000, with a $35)000 first mortgage and payments including taxes of $590 a month. The parties owned property in Colorado with $25,000 equity. The wife had separate savings of approximately $18,000, and there was a little under $7,000 in joint bank accounts.

The final judgment ordered a sale of the marital home, with equal division of the proceeds between the parties subject to the wife’s receiving $20,000 from the husband’s share as lump-sum alimony. The wife was also to receive most of the furniture as partial lump-sum alimony. The Colorado property was ordered sold, with the proceeds divided. The husband was ordered to pay $950 monthly in child support, $1,000 monthly for three years as rehabilitative alimony, and the balance owed on a home improvement loan. The wife appealed the award of rehabilitative rather than permanent alimony and the ordered sale of the marital home. The district court reversed on both points.

The reversal of the rehabilitative alimony award appears to elevate to a rule of law the proposition that a rehabilitable wife who is awarded custody of minor children and who desires to forego rehabilitation and remain at home has a right to do so if her former husband can afford to support her. In the words of the district court:

Mr. Kuvin maintained the home and approved his wife’s role as wife and mother [during the marriage]. We see no reason to require Mrs. Kuvin to leave the home and children solely to gain support when Mr. Kuvin is well able to support Mrs. Kuvin and their children while the children are minors. Should Mrs. Kuvin decide to return to the labor market, the court may adjust the alimony upon application [3d DCA citations omitted].
¾; ⅜ ⅞: ⅜ sjs
It is obvious that the legislature has never enacted laws requiring mothers of young children to work outside the home, either during marriage or upon its dissolution, when a husband is able to support his family. Mr. Kuvin approved his wife’s decision to fulfill her obligations at home during the marriage, and he is able to continue to provide for his family. We therefore see no reason to order Mrs. Kuvin to seek outside employment.

Kuvin, 412 So.2d at 901-02. The husband’s ability to support the wife is only part of the test. It is the role of the trial court to make a determination based not only on the ability of the husband, but also on the need of the wife and the best interests of the parties. As we said in Cana-karis,

[t]he two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course and the value of the parties’ estates.

382 So.2d at 1201-02.

When a trial court awards rehabilitative rather than permanent alimony, it is a reflection of the court’s optimism concerning the likelihood of future rehabilitation. “The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. [Citations omitted.] Where appropriate; rehabilitative alimony may be converted to permanent periodic alimony.” Id. at 1202.

Whether to award permanent or rehabilitative alimony in this cause was a decision within the trial court’s discretion. In Canakaris we said:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

382 So.2d at 1203. The trial court may have determined that although working as a legal secretary at $250 a week would not permit the wife to enjoy her accustomed standard of living, a period of rehabilitation would allow time for her to gain skills to provide for additional income or at least attempt to do so. The record reflects that the wife is a relatively young, able, and healthy woman who has had some post-secondary education and has demonstrated her ability to hold a job. The trial court may well have reasoned that her eventual rehabilitation is far more likely if she begins now, rather than fourteen years hence, when the younger child reaches his majority. After careful review of the record, and mindful of the trial court’s superi- or vantage point, we cannot say that no reasonable person would take the view adopted by the trial court. Rather we find that reasonable persons could differ as to the propriety of the trial court’s action. We therefore find no abuse of discretion. The district court erred in substituting its judgment for that of the trial court.

The district court also found that the trial court erred in ordering the sale of the marital home, that the wife should have been awarded exclusive possession during the children’s minority, and that the child support award should be increased if the house is sold while the children are still minors. Although it is true that often, undoubtedly more often than not, exclusive possession of the marital home is awarded to the custodial parent of minor children, there is no rule of law mandating such an award. This decision also is one that lies soundly within the trial court’s discretion. There is evidence in the record to support the trial .judge’s determination in this regard — the house is an older one that was in need of extensive repairs at the time of the hearing. The $20,000 awarded the wife out of the husband’s share of the proceeds from sale of the house, plus her share of the proceeds of the sale, should permit her to find suitable housing for herself and the children. We find no abuse of discretion nor lack of competent evidence in support of the trial court’s determination. “It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence,” but rather the test is “whether the judgment of the trial court is supported by competent evidence.” Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).

The decision of the district court is quashed and the case remanded for reinstatement of the trial court’s final judgment.

It is so ordered.

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


author: McDonald, justice.

text:
    AMERICAN FIRE & INDEMNITY CO., Petitioner, v. Ruth SPAULDING, Respondent.
    No. 62267.
    Supreme Court of Florida.
    Dec. 8, 1983.

      Keith H. Park of Albury, Park & Heuer, and Edna L. Caruso, West Palm Beach, for petitioner.
    Majorie Gadarian Graham, of Jones & Foster, West Palm Beach, for respondent.
    James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Florida Defense Lawyers Ass’n, amicus curiae.
   McDonald, justice.

We have for review Spaulding v. American Fire & Indemnity Co., 412 So.2d 367 (Fla. 4th DCA 1981), because of conflict with Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla.1982). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution and quash the instant district court opinion.

On December 1, 1978 Spaulding’s minor son, Joseph Spaulding, was injured while a passenger in a vehicle operated by Bradford Suder when it collided with a vehicle operated by Robert V. Troyan and insured by Kenilworth Insurance Company. The Suder vehicle was owned by Bradford’s father, Burton Suder, and insured by American Fire & Indemnity Company (AFIC). Spaulding was insured by Fidelity & Casualty Company of New York (F & C).

The AFIC policy issued to Burton Suder provided bodily injury liability coverage of $250,000 per person and $500,000 per occurrence and uninsured motorist coverage of $15,000 per person and $30,000 per occurrence. Spaulding’s F & C policy provided uninsured motorist coverage of $10,000 per person and $20,000 per occurrence. Kenilworth’s coverage of Troyan was $10,-000 per person, and it offered its policy limits to Spaulding to settle her claim on behalf of her son. AFIC failed to timely approve the settlement. Spaulding, therefore, pursuant to subsection 627.727(6), Florida Statutes (1977), instituted an action for damages against Troyan and Kenil-worth, for uninsured motorist benefits against AFIC and F & C, and for attorneys’ fees from AFIC.

AFIC counterclaimed for declaratory relief to determine the amount of uninsured motorist coverage available to Spaulding, who filed a general denial and sought attorneys’ fees. The trial court granted AFIC’s motion to strike Spaulding’s claims for attorneys’ fees in her complaint and in her answer to the counterclaim. The court also granted AFIC’s motion to sever the counterclaim. The parties proceeded to nonjury trial on the issue of whether AFIC’s uninsured motorist coverage was $15,000 or $250,000.

The evidence before the trial court established that on November 3, 1977 Suder authorized his insurance agent to increase his bodily injury insurance per person from $100,000 to $250,000. At this time he was informed that, pursuant to subsection 627.-727(2), Florida Statutes (1977), uninsured motorist coverage of $250,000 was available to him. He elected, however, to maintain his uninsured motorist coverage at $15,000 per person. No written rejection was obtained. Suder’s express refusal to increase his uninsured motorist coverage was followed by at least two policy changes made prior to the accident: one added Suder’s son Bradford and the other added a vehicle to the policy. On these occasions Suder was not again advised that he had the opportunity to increase his uninsured motorist coverage. Suder testified, however, that he intended for his uninsured motorist coverage to remain at the lower limits because of the additional expense of increased coverage.

Based upon the evidence adduced at trial, the trial court found that the uninsured motorist coverage was $15,000 per person. On appeal the district court reversed the trial court’s decision and found the uninsured motorist coverage to be $250,000. The district court initially affirmed the striking of the plaintiff’s claims for attorneys’ fees, but on rehearing the court reversed its position and held that Spaulding was entitled to attorneys’ fees at the trial level.

In holding that the correct amount of uninsured motorist coverage was $250,000, the district court construed subsection 627.-727(1), Florida Statutes (1977), as requiring that the insurer inform the insured, Burton Suder, of his statutory right to higher uninsured motorist coverage with every “material” policy endorsement. The fourth district advanced the view that any “material” policy change constitutes the issuance of a separate contract of insurance as opposed to a “renewal” and, therefore, the insurer is required to provide the insured with an opportunity to reject or select uninsured motorist coverage. Since AFIC did not expressly offer increased uninsured motorist coverage when Suder’s policy was altered to accommodate an additional driver and vehicle, the district court found that the uninsured motorist coverage automatically increased to $250,000, an amount equal to the general liability coverage.

We cannot agree with the district court’s interpretation of the statute. While the statute clearly provides that uninsured motorist coverage is by operation of law equal to general liability coverage unless the named insured selects otherwise, it does not mandate that this selection be in writing or any other specific form. “What the statute does require is that a rejection of uninsured motorist coverage or a selection of lower limits of coverage must be knowingly made.” Kimbrell v. Great American Insurance Co., 420 So.2d 1086, 1088 (Fla.1982). In Kimbrell we noted that the question of whether the insured made a knowing selection of coverage limits was an issue to be decided by the trier of fact. In making this factual determination the trier of fact should undoubtedly consider whether the insurer expressly informed the insured of his statutory right to higher uninsured motorist coverage. But while the existence or absence of an express offer is relevant to the factual inquiry, it “is not dispositive of the question of whether there was a knowing selection of coverage limits. It is conceivable that the insured might know of the availability of coverage without being expressly informed of such by the insurer.” Id.

Less than one year before the policy alterations in question, Burton Suder affirmatively rejected his insurer’s offer of increased uninsured motorist coverage. More importantly, Suder testified at trial that he intended for his uninsured motorist coverage to remain at $15,000 because of the additional expense of higher coverage. Clearly, despite the absence of an express offer at the time of the policy changes, Suder was aware of his statutory right to higher uninsured motorist coverage and knowingly elected to continue his selection of the lower amount. Thus, the statutory requirement of a knowing selection has been met.

The decision of Burton Suder, the named insured, to maintain his uninsured motorist coverage at $15,000 is binding on any additional insureds. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 504 (Fla.1982). We therefore conclude that the trial court correctly found the amount of uninsured motorist coverage available to Spaulding to be $15,000, and we quash the district court’s opinion.

With regard to the attorneys’ fees issue, section 627.428 requires that an' insured must prevail against the insurer in order to be entitled to attorneys’ fees. Spaulding, therefore, is denied attorneys’ fees.

It is so ordered.

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

ADKINS, J., dissents.

      . It should be noted that our decision in Kimb-rell had not yet been handed down at the time of the fourth district’s opinion in Spaulding.

        . § 627.727(2) states:
      (2) The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the company’s rating plan as may be selected by the named insured ...

      . When the instant cause of action arose, § 627.727(1) provided in relevant part:
      (1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage. ... Unless the named insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy when the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

      . We note that the legislature amended § 627.-727(1) in ch. 82-386, §§ 66, Laws of Fla. (1982), thereby eliminating any possibility that this section will again be interpreted as requiring an offer of uninsured motorist coverage with every "material” policy change. § 627.727(1) (Supp. 1982) now reads in pertinent part:
      [T]he [uninsured motorist] coverage need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy issued to him by the same insurer, when the named insured or lessee had rejected the coverage in connection with a policy previously issued to him by the same insurer.
      Our decision in the instant case, however, is based solely on our interpretation of the 1977 statute.


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Ernie CLARK, Respondent.
    No. 62485.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for petitioner.
    Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   BOYD, Justice.

This case is before us on petition for review of State v. Clark, 416 So.2d 13 (Fla. 1st DCA 1982). Our jurisdiction was invoked and the case accepted for review on the ground of express and direct conflict of decisions. Art. V, § 3(b)(3), Fla. Const.

Respondent was charged with burglary by an information which alleged in pertinent part that he

did then and there unlawfully enter or remain in a structure ... with the intent to commit the offense of Theft therein, or did enter through a window at about 4:45 A.M. stealthily without the occupant’s consent with intent to commit some offense, contrary to Sections 810.07 and 810.02, Florida Statutes.

Thus the information charged burglary by the conventional method first and then as an alternative charge set out the elements of section 810.07, Florida Statutes (1981). The defendant moved to strike the alternative allegation of burglary by stealthy entry, etc., in response to which the trial court entered an order dismissing the entire information.

On appeal the district court reversed the order dismissing the entire information but affirmed the dismissal of the charge made by alleging the elements set forth in section 810.07. The district court relied on Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981), which held that section 810.07 does not establish a substantive offense.

We recently approved the Rozier decision relied on by the court below. State v. Rozier, 436 So.2d 73 (Fla.1983). There and in State v. Waters, 436 So.2d 66 (Fla.1983), we held that the elements in section 810.07 do not constitute the crime of burglary and therefore do not provide an alternative method of alleging the crime. Under these recent decisions of this Court, the decision of the district court in the present case was substantially correct.

It should be noted that in State v. Waters we modified the law and held that a charge of burglary need not always descend to particulars on the matter of the specific offense the accused intended to commit. It should also be noted that in State v. Rozier the principal problem we found with the alternative allegation of burglary used there was the absence of an allegation of intent to commit an offense. In the present case it might be argued that the alternative set of allegations was sufficient to charge burglary because, after Waters, all the essential elements were there. However, we held in Waters and Rozier that section 810.07 should not be used as an allegational alternative but only as an evidentiary alternative on the issue of intent.

Accordingly, the decision of the district court, reversing the trial court’s dismissal of the entire information, is approved.

It is so ordered.

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


text:
    Robert LEVINE, Petitioner, v. DADE COUNTY SCHOOL BOARD, Respondent.
    No. 62804.
    Supreme Court of Florida.
    Dec. 8, 1983.

      Arthur W. Tifford, Miami, for petitioner.
    Donna S. Catoe of Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Miami, for respondent.
    Jim Smith, Atty. Gen. and Joseph A. Linnehan, Asst. Atty. Gen., Tallahassee, for State of Fla., amicus curiae.
    Robert A. Ginsburg, Dade County Atty. and James A. Jurkowski, Asst. County Atty., Miami, for Metropolitan Dade County, amicus curiae.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal in Levine v. Dade County School Board, 419 So.2d 808 (Fla.3d DCA 1982). The district court certified that the dispositive issue it passed upon is one of great public importance. Therefore, we have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Robert Levine brought an action against the Dade County School Board alleging that on March 27, 1977, when he was a public high school student, he was the victim of a severe beating at the hands of other students during school hours and on school grounds. The complaint alleged that the incident was caused by the negligent failure of school district employees to maintain order and supervise the activities of students. The complaint alleged severe personal injuries.

Prior to filing his lawsuit, Levine provided written notice of his claim to the school board. However, he did not notify the State Department of Insurance within three years of the accrual of the cause of action as is required by section 768.28(6), Florida Statutes (1977). Section 768.28 is the statutory waiver of sovereign immunity for the state, its agencies, and its subdivisions. On motion of the school district, the trial court dismissed the complaint for failure to allege notice to the Department of Insurance.

Having failed to give the required notice within three years of the incident, Levine was unable to amend his complaint to allege that the notice had been timely given. Instead he filed an amended complaint which made clear that such notice had not been given, but he attached the affidavit of an official of the Department of Insurance to the effect that the department had no financial interest in the outcome of the suit and no role or function in the defense of claims against school districts. According to the affidavit, the department’s role in cases such as this is limited to gathering information and keeping records about such claims and reporting the information to the legislature from time to time. The trial court dismissed the complaint with prejudice.

On appeal the district court found merit in Levine’s argument that the notice provisions should not be deemed a strict condition precedent to filing suit, but affirmed the trial court’s ruling on the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), where this Court held that the notice requirements of section 768.28(6) are conditions precedent to maintaining a suit. The district court certified the following question:

May a plaintiff maintain an action to recover damages from a state agency or subdivision, pursuant to section 768.28(6), Florida Statutes (1977), if he notified the appropriate agency but failed to present a written notice of claim to the Department of Insurance, which has no interest or role in the proceedings other than to report claims to the legislature, and no prejudice resulted?

419 So.2d at 809. We are compelled to answer the question in the negative and approve the decision of the district court of appeal.

Section 768.28(6) reads as follows:

(6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing.- The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

There is some support in this statute for the suggestion that the notice requirement in question should only apply to cases in which the Department of Insurance has some official role or interest. For example, the statute makes reference to “the Department of Insurance or the appropriate agency” denying the claim and making “final disposition of a claim.” It can be inferred that the statute contemplates some role for the department in responding to claims against the state. One can speculate that the department may have such a role in lawsuits against departments and agencies of the executive branch of state government. The provision in section 768.-28(6) excepting suits against municipalities from the requirement of notice to the Department of Insurance, together with the affidavit negating any role or function for the department in suits against school districts, gives rise to further speculation that the failure to also except county school districts from the statutory notice requirement was inadvertent.

Such speculation, however, does not authorize us to ignore the plain language of the statute. Section 768.28(6) clearly requires written notice to the department within three years of the accrual of the claim before suit may be filed against any state agency or subdivision except a municipality. Because this subsection is part of the statutory waiver of sovereign immunity, it must be strictly construed. Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1978); Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). In the face of such a clear legislative requirement, it would be inappropriate for this Court to give relief to the petitioner based on his or our own beliefs about the intended function of the Department of Insurance in the defense of suits against school districts. Our views about the wisdom or propriety of the notice requirement are irrelevant because the requirement is so clearly set forth in the statute. Richman v. Shevin, 354 So.2d 1200 (Fla.1977), cert. denied, 439 U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978); Stern v. Miller, 348 So.2d 303 (Fla.1977). Consideration of the efficacy of or need for the notice requirement is a matter wholly within the legislative domain.

Under section 768.28(6), not only must the notice be given before a suit may be maintained, but also the complaint must contain an allegation of such notice. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Where the time for such notice has expired so that it is apparent that the plaintiff cannot fulfill the requirement, the trial court has no alternative but to dismiss the complaint with prejudice. Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla.3d DCA 1979). Therefore the district court’s affirmance of the order of dismissal was correct.

The decision of the district court of appeal is approved. We answer the question in the negative.

It is so ordered.

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

        See also § 768.28(3), Fla.Stat. (1977), which provides:
      (3) Except for a municipality, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Insurance in the consideration, adjustment, and settlement of any claim under this act.

        See also § 768.28(7), which provides:
      (7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality, upon the Department of Insurance, and the department or the agency concerned shall have 30 days within which to plead thereto.


text:
    THE FLORIDA BAR, Complainant, v. George A. ROUTH, Respondent.
    No. 63138.
    Supreme Court of Florida.
    Dec. 8, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Patricia J. Brown, Bar Counsel, Tampa, for complainant.
    H.H. Baskin, Jr. of Baskin & Bennison, Clearwater, for respondent.
   PER CURIAM.

The respondent was suspended from the practice of law for three years and the reinstatement was conditioned upon respondent’s proving his rehabilitation and successfully completing all three parts of The Florida Bar examination. Florida Bar v. Routh, 414 So.2d 1023 (Fla.1982).

Respondent has petitioned for reinstatement and the referee has recommended that his petition be granted. We adopt the recommendation.

George A. Routh is reinstated as a member in good standing of The Florida Bar without restrictions or conditions. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $885.61.

It is so ordered.

ADKINS, Acting C.J, and BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.


text:
    James Edward ELLIS, Petitioner, v. STATE of Florida, Respondent.
    No. 63286.
    Supreme Court of Florida.
    Dec. 8, 1983.

      James B. Gibson, Public Defender and James R. Wulchak, Chief, App. Div., Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen. and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for respondent.
   BOYD, Justice.

The petitioner Ellis was charged by information with the crime of attempted burglary. His motion to dismiss the information as legally insufficient was denied, and after a jury trial he was found guilty as charged. On appeal the district court of appeal affirmed but certified that its decision passed upon a question of great public importance, Ellis v. State, 425 So.2d 201 (Fla. 5th DCA 1983), thus giving us jurisdiction to consider Ellis’ petition for review. Art. V, § 3(b)(4), Fla. Const.

The information charging petitioner with attempted burglary alleged an overt act in furtherance of an attempted unlawful entry and alleged intent to commit an offense in the structure the accused was attempting to enter, but did not specify the offense the accused was alleged to have intended. The district court certified to us the following question:

In a prosecution for attempted burglary (§§ 777.04(1) and 810.02, Fla.Stat. (1981)), is it necessary for the State to allege, not only the specific offense which the accused intended and attempted to commit, such as burglary, but also to further allege all of the elements of such intended offense, such as, in burglary; the intent to commit some crime in the structure? If so, must the State then again go further and allege and prove the specific offense which the accused intended to commit by the burglary which he intended and attempted to commit?

Ellis v. State, 425 So.2d 201, 202-03, (Fla. 5th DCA 1983).

Our recent decision in State v. Waters, 436 So.2d 66 (Fla.1983), like the present case, arose from a prosecution for attempted burglary. That decision and State v. Rozier, 436 So.2d 73 (Fla.1983), provide the answers to the certified questions. An instrument charging burglary or attempted burglary must allege that the defendant’s unlawful actions (i.e., entering or remaining in a structure or conveyance, or attempting to enter or remain) were done with the intent to commit an offense in the structure or conveyance in question, but need not specify the offense so intended.

The decision of the district court of appeal is approved.

It is so ordered.

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


text:
    Stephen Richard MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 63326.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Larry G. Turner and Thomas W. Kurrus of the Law Offices of Larry G. Turner, Gainesville, for petitioner.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
   McDonald, justice.

Moore has petitioned for review of State v. Moore, 424 So.2d 882 (Fla. 1st DCA 1982), which declared section 812.055, Florida Statutes (1981), constitutional. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution, and approve the district court opinion.

Section 812.055 provides as follows:

(1) Any law enforcement officer shall have the right to inspect any junkyard, scrap metal processing plant, motor vehicle salvage yard, licensed motor vehicle dealer’s lot, motor vehicle repair shop, parking lot, public garage, or other establishment dealing with salvaged motor vehicle parts.
(2) Such physical inspection shall be conducted during normal business hours and shall be for the purpose of locating stolen vehicles, investigating the titling and registration of vehicles, inspecting vehicles wrecked or dismantled, or inspecting records required in s. 319.30.

Pursuant to section 812.055, a state trooper and a Gainesville police officer entered Moore’s automotive repair shop to check a truck that they suspected had an altered identification number. They located the truck on Moore’s property, ascertained that the identification number had been changed, seized the truck, and arrested Moore.

Moore filed a motion to suppress, alleging that section 812.055 unconstitutionally allowed warrantless searches and seizures in violation of the fourth amendment of the federal constitution and article I, section 12 of the state constitution. The trial court agreed with Moore’s contentions and declared the statute unconstitutional. The district court reversed, concurring in the analysis in Bludworth v. Arcuri, 416 So.2d 882 (Fla. 4th DCA 1982).

In Bludworth the fourth district held section 812.055 constitutional in the face of claims identical to those made in this case. Bludworth and Moore appear to be the only cases to have considered the constitutionality of section 812.055. We agree with the conclusions in those cases regarding this statute.

As the United States Supreme Court pointed out in Donovan v. Dewey, 452 U.S. 594, 599, 101 S.Ct. 2534, 2538, 69 L.Ed.2d 262 (1981), warrantless administrative searches of business property are not automatically unreasonable because the “interest of the owner of commercial property is not one in being free from any inspections.” To withstand challenge, however, the statute allowing such searches must not allow unbridled discretion and the searches must be of a pervasively regulated business so that the business owner is aware that his property is subject to inspection. Id. at 599-600, 101 S.Ct. at 2538-39. Section 812.055 meets these requirements.

Motor vehicle theft is widespread and on the increase. As Bludworth points out, the legislature has a legitimate interest in stopping such crimes. Section 812.-055 is limited to business establishments that easily could be involved in the theft and unlawful disposition of vehicles. Inspections are restricted to normal business hours. Owners of subject businesses are on notice by the clear language of the statute that their premises will be inspected. Compare United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (choosing to engage in a pervasively regulated business is done with the knowledge that records, etc., will be subject to inspection). The first and fourth districts, therefore, correctly concluded that section 812.055 does not violate the fourth amendment or article I, section 12, and we approve their decisions in Moore and Blud-worth.

It is so ordered.

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

       This Court upheld the constitutionality of § 319.-30 in Reynolds v. State, 383 So.2d 228 (Fla. 1980).


author: OVERTON, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Walter LEWIS, et ux., Respondents.
    No. 63408.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Frank W. Weathers of Weathers & Seaman, Lantana, for petitioner.
    Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for respondents.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as State Farm Mutual Automobile Insurance Co. v. Lewis, 425 So.2d 603 (Fla. 4th DCA 1982). We find direct conflict with Vetter v. State Farm Mutual Automobile Insurance Co., 423 So.2d 991 (Fla.3d DCA 1982); Allstate Insurance Co. v. Alvarez, 414 So.2d 224 (Fla.3d DCA 1982); Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla.3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla.2d DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980); and State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

We have resolved this conflict in our decision in New Hampshire Insurance Group v. Harbach, 439 So.2d 1383 (Fla.1983). For the reasons expressed in that decision, we quash the decision of the district court in the instant case.

It is so ordered.

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

ADKINS, J., dissents.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Petitioner, v. Spencer RAUENZAHN, et ux., Respondents.
    No. 63489.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Frank W. Weathers of Weathers & Seaman, Lantana, for petitioner.
    Ronald Alvarez and Larry Klein, West Palm Beach, for respondents.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as State Farm Fire and Casualty Co. v. Rauenzahn, 426 So.2d 584 (Fla. 4th DCA 1983). We find direct conflict with Vetter v. State Farm Mutual Automobile Insurance Co., 423 So.2d 991 (Fla. 3d DCA 1982); Allstate Insurance Co. v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982); Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980); and State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

We have resolved this conflict in our decision in New Hampshire Insurance Group v. Harbach, 439 So.2d 1383 (Fla.,1983). For the reasons expressed in that decision, we quash the decision of the district court in the instant case.

It is so ordered.

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

ADKINS, J., dissents.