text:
    Edward Charles SISTRUNK v. STATE.
    7 Div. 254.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.

      Thomas M. Semmes, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Edward Charles Sistrunk appeals his conviction for murder from the Circuit Court of Calhoun County. Appellant was sentenced to life imprisonment for the stabbing death of his fourteen-year-old niece, Jacqueline Carol Sistrunk. Two issues are raised on appeal. The facts, largely undisputed, will place those issues in perspective.

Appellant lived in Anniston with his mother, Cora Sistrunk, one of his sisters, and her two children. The victim, appellant’s fourteen-year-old niece by another sister, and the victim’s thirteen-year-old sister, also lived with their grandmother, Mrs. Sistrunk. A third sister, Rose Wright, also lived in Anniston.

The homicide occurred on the night of November 24, 1982, in Cora Sistrunk’s living room. Family members testified that the appellant left the living room, went into the kitchen to make a sandwich, then returned and sat down on the stairs in the living room. No one saw a knife or other weapon in appellant’s hands and there was no testimony of any argument or dispute among the group. Shortly after he sat down, appellant rose from the stairs, walked over to the victim and, without a word, stabbed her in the chest with a kitchen knife. Appellant ran from the house. Police later found him in downtown Anni-ston; the arresting officer testified that he was crying and intoxicated.

Before the killing, appellant had been seeing a counselor at the Calhoun-Cleburne Mental Health Center. Rose Wright had made appointments for him at the center because, in her opinion, appellant had been acting strangely. Both of appellant’s sisters and his mother said that before and after he began going for counseling, appellant exhibited such behavior as sleeping in his clothes, failing to clean up after himself, and asking relatives, including the victim and her sister, why they talked about him behind his back. A counselor for the mental health center testified that appellant had been diagnosed as paranoid schizophrenic and had been prescribed medication to control his symptoms. However, he and other witnesses also testified that appellant would often fail to take the medicine.

I

Appellant pleaded not guilty by reason of insanity, thereby saddling himself with the heavy burden of proving his insanity by a preponderance of the evidence and to the jury’s reasonable satisfaction. See Herbert v. State, 357 So.2d 683, 688 (Ala.Crim. App.), cert. denied, 357 So.2d 690 (Ala. 1978). He sought to prove his lack of criminal responsibility through the testimony of several of his family members as well as expert witnesses. Appellant now asserts that the verdict must be reversed as against the weight of the evidence.

The basic principles of law governing the insanity defense are summarized in Herbert, supra. They are:

“1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
“4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.”

Herbert is one of only seven cases to date in which an Alabama appellate court has overturned a murder conviction on the ground that the guilty verdict ran against the overwhelming weight of the evidence of insanity. See Pickett v. State, 37 Ala. App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954); Christian v. State, 351 So.2d 623 (Ala.1977); Woods v. State, 364 So.2d 1178 (Ala.Crim.App.), cert. denied, 364 So.2d 1186 (Ala.1978); Sasser v. State, 387 So.2d 237 (Ala.Crim.App.), writ denied, 387 So.2d 244 (Ala.1980); Smith v. State, 411 So.2d 839 (Ala.Crim.App.1982); and Turner v. State, 455 So.2d 910 (Ala. 1984). In order for this court to reverse, evidence of insanity must be “overwhelming,” Christian, supra at 625; “uncontradicted,” Herbert, supra, at 689; and “clear ... strong and undisputed,” Boyle v. State, 229 Ala. 212, 222, 154 So.2d 575, 583 (1934). Furthermore, there may be no facts in evidence which would support a reasonable inference that the defendant was sane. Compare Cunningham v. State, 426 So.2d 484, 491 (Ala.Crim.App.1982), cert. denied, 426 So.2d 484 (Ala.1983), with Alvis v. State, 434 So.2d 859, 864 (Ala.Crim.App.1983). In Cunningham, this court found that “[t]he defendant’s conduct and demeanor after the crime provided a reasonable inference of sanity.” But in Alvis, an assault case, there was nothing in the defendant’s conduct or demeanor to support the inference that his acts “were those of a sane man.” Alvis, id.

Because of the presumption of sanity, the state is not required to prove that the defendant is sane. See Dancy v. State, 437 So.2d 620, 621 (Ala.Crim.App. 1983); Cunningham, supra, at 490. A guilty verdict is not arbitrary if the record reveals any facts from which the jury could have inferred that the defendant was sane at the time of the crime. Cunningham at 489. This is true even though all the expert witnesses testify that the defendant was insane, because of the rule that the jury may reject even uncontradicted expert testimony. Herbert, supra, at 688.

As we noted in Cunningham, it is a rare case in which the jury’s finding will be disturbed in favor of the appellant’s evidence of insanity. Analysis of these cases requires a careful examination of the record in order to determine what, if any, evidence was available from which the jury could reasonably conclude that the defendant knew what he was doing and/or could have controlled his criminal behavior. Presentation of a mere reasonable doubt of sanity does not authorize an acquittal. Boswell v. State, 63 Ala. 307, 326, 35 Am. Rep. 20 (1880).

The central question, then, is what evidence must be adduced to support the guilty verdict. In this case, the state elected to rely on the presumption of sanity, and declined to produce expert witnesses in rebuttal to testify that appellant was sane. Appellant, however, produced four expert witnesses. Two psychologists, a psychiatrist, and a mental health counselor testified that appellant exhibited symptoms of paranoid schizophrenia after the murder. The mental health counselor was the only expert witness who had been treating appellant before the crime and who was familiar with his mental condition at that time.

Testimony from both the state’s and the defendant’s lay witnesses, however, produced ample evidence from which the jury could have inferred sanity despite the expert testimony. See Bullard v. State, 408 So.2d 164,167 (Ala.Crim.App.), cert. denied, 408 So.2d 167 (Ala.1982). First, the sister of the deceased, who was also appellant’s niece, testified that no one had ever told her that appellant was crazy or abnormal, nor had she been “warned” about appellant by other family members. She and her sister played with appellant and talked to him on a regular basis even though they were aware that, at his sister’s behest, appellant had been seeing a counselor at the mental health center.

Furthermore, appellant displayed a consciousness of guilt when he fled from the house after stabbing his niece. The issue of sanity is ordinarily one for the jury when there is evidence of consciousness of guilt. Cunningham, supra, at 490. (Cf Herbert, at 684, in which the defendant calmly told arresting officers that “he shot his wife and she was in the bathroom.”)

In the instant case, police found appellant in downtown Anniston, kneeling down and crying. The arresting officer testified that appellant “was intoxicated”. The jury’s inference that appellant was sane but intoxicated would authorize a verdict of guilty, as voluntary intoxication will not justify an acquittal unless the consumption of alcohol causes a mental disturbance which impairs the defendant’s ability to tell right from wrong. Lister v. State, 437 So.2d 622, 624 (Ala.Crim.App.1983).

The jury could also have drawn a legitimate inference that the appellant’s motive was revenge. See Cunningham, at 490-91. Sistrunk himself testified that the deceased and her sister had taken over his bed when they moved into his mother’s house.

While all of the lay witnesses who testified that appellant was insane before the crime were related to the deceased, they were more closely related to the appellant. This and the fact that they were lay witnesses, untrained in the intricacies of mental diagnosis, were facts for the jury to consider in weighing their testimony.

Finally, in this case there was additional evidence which was not presented in any of the preceding cases which overturned similar convictions. Appellant took the witness stand and testified as to his own state of mind at the time of the crime. His demeanor and manner of testifying constituted evidence which was proper for the jury to consider in reaching their decision. “The conduct of a witness on the stand is, of course, a form of testimony; his demeanor is always in evidence when he testifies.” Stewart v. United States, 366 U.S. 1, 6, n. 13, 81 S.Ct. 941, 944, n. 13, 6 L.Ed.2d 84 (1961). Appellant’s state of mind at the time of trial demonstrated primarily his capacity to stand trial. The jury could also decide whether or not they believed he was telling the truth about his intent at the time he stabbed his niece.

In affirming the trial court’s denial of a new trial, we emphasize the deference that must be afforded the discretion of the jury. Theirs was a unique opportunity to observe the live testimony and weigh the evidence in light of the intangible considerations of credibility. This court cannot, in the absence of blatant disregard for the law, substitute itself for the jury. Bowen v. State, 386 So.2d 489, 492 (Ala. Crim.App.), writ denied, 386 So.2d 492 (1980).

II

Appellant contends that the judge’s charge to the jury defining preponderance of the evidence was in'correct, and that the refusal of appellant’s requested charge constitutes reversible error. We disagree.

Defense counsel did not except to the jury instructions as given. His only specific request was that the court instruct the jury on expert witnesses. Exceptions to an oral charge must be made before the jury retires to deliberate. Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), affd, 414 So.2d 993 (Ala.1982). Counsel’s only indication of dissatisfaction before the jury retired was his statement for the record that he had submitted other “prepared jury charges.” This is insufficient to preserve the contention for review. Allen, supra. Even if there had been an appropriate exception, there would be no error on this ground, as the court’s charge on preponderance of the evidence was adequate. “The charge was expressed in plain language that is susceptible to ordinary understanding and should not be subjected to ‘hypercriticism.’ ” Brackin v. State, 417 So.2d 602, 605 (Ala.Crim.App.1982).

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Douglas C. DUNCAN v. STATE.
    7 Div. 256.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    W.K. Rogers, Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Douglas Duncan was indicted and convicted for theft of property in the second degree. Alabama Code 1975, § 13A-8-4. He was sentenced as an habitual offender to 17 years’ imprisonment. Two issues are raised on appeal.

I

The statement the defendant gave to Talladega County Sheriff’s Deputy Lester Nickolson was properly admitted into evidence. The record shows that the defendant was fully advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and made an intelligent and voluntary waiver.

The defendant requested an attorney after he had given an oral statement. He told Deputy Nickolson that he “did not want to sign a written statement until he had talked to a lawyer.” The Deputy then tried to call the defendant's lawyer and did not continue to question the defendant.

On appeal, for the first time, the defendant argues that his probation officer, Walter B. Smith, was present when he gave his statement, that he was on probation when arrested for the present offense, that he knew that his probation might be revoked, and that one of the terms of his probation was that he be “truthful” with his probation officer at all times. The defendant argues that the “psychological pressure” created by the probation officer’s presence effectively denied him his freedom of choice.

The record does show that a Walter B. Smith was present with Deputy Nickol-son. The record does not identify Smith in any manner. At the voluntariness hearing, no evidence of “psychological pressure” was presented. At no time in the course of the proceedings in the circuit court was this contention ever advanced. Since there is no evidence to support this argument, we must find that it is without merit. Since this argument was not raised at trial, we must find that it has been waived. On appeal, a defendant cannot challenge the admission of his confession on grounds which were not asserted at trial. Bolding v. State, 428 So.2d 187,190-91 (Ala.Cr.App. 1983); Manigan v. State, 402 So.2d 1063, 1071 (Ala.Cr.App.), cert. denied, Ex parte Manigan, 402 So.2d 1072 (Ala.1981); Waters v. State, 360 So.2d 358, 363 (Ala.Cr. App.), cert. denied, Ex parte Waters, 360 So.2d 367 (Ala.1978).

The record before this Court supports the trial judge’s findings that the defendant’s statement was voluntary in all respects and admissible in evidence.

II

The defendant asserts that the trial judge made a prejudicial comment revealing his bias toward the State.

The record shows that the trial judge had ordered a ten minute recess and “most” of the jurors had “filed out the door”, when the judge handed a note to the Assistant District Attorney stating, “You ought to ask him this. This is the guts of your case.” The record does not reveal what the note contained. When the judge made this statement “the Defendant’s attorney was standing right here and heard it.”

After the recess, the trial judge questioned the jury and determined that no juror heard anything he said to the two attorneys. The record affirmatively shows that the jury was not prejudiced by the judge’s comment. There is nothing in the record to indicate that the trial judge was trying to direct the prosecution of the State’s case. A judge may properly “suggest to the prosecution ... the proper way in which to introduce admissible evidence.” Burks v. State, 353 So.2d 539, 541 (Ala.Cr. App.1977). See also Smith v. State, 447 So.2d 1327 (Ala.Cr.App.1983). The trial judge has the authority and the duty “to pose questions to a witness for the purpose of clarifying the issues for the jury’s consideration and to aid in the orderly conduct of the trial process.” Richardson v. State, 430 So.2d 297 (Ala.1981). Nothing in the record even suggests that that is not what the trial judge was attempting to do in this case.

The defendant received a fair trial. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Carl BRANTLEY v. STATE.
    7 Div. 268.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Carl Brantley, pro se.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

While serving a two-year sentence of hard labor for Shelby County, Carl Brantley escaped on three separate occasions in 1976.

He was indicted, convicted and sentenced to two years’ imprisonment pursuant to title 14, § 153, Code of Alabama 1940 (Re-comp.1958) (later codified at Ala.Code § 13-5-65 (1975)), for escape from the State penitentiary. On appeal, this court reversed Brantley’s conviction due to evidentiary insufficiency, noting that he should have been indicted under title 14, § 151(1), Code of Alabama 1940 (Supp. 1973) (later codified at Ala.Code § 13-5-63 (1975)), for escape from “imprisonment in the county jail, or to hard labor for the county.” Brantley v. State, 340 So.2d 902, 903 (Ala.Crim.App.1976).

Following the reversal of his conviction, Brantley was not reindicted under the proper statute. Instead, in 1977, with counsel present, he pled guilty to the identical indictment upon which his reversed escape conviction had been based, answering “Yes, sir, I was.” to the court’s question, “You were serving a sentence at the penitentiary during these [escapes], is that correct?” (Emphasis added).

In 1983, Brantley petitioned the Shelby Circuit Court for a writ of error coram nobis on the grounds that he was innocent of the crimes of escape to which he had pled guilty, that the trial judge imposed on him a more severe sentence following appeal, and that he was denied the effective assistance of counsel. The trial court denied the State’s motion to dismiss the petition and set the matter for a hearing.

Then, following an agreement between the defendant, defendant’s counsel, and the district attorney, Brantley consented to an amendment of the original indictment to reflect the fact that he had escaped from the county jail rather than the State penitentiary. He agreed to plead guilty to the amended indictment with the understanding that the State would recommend a sentence of three years in the penitentiary. He also agreed not to apply for a suspended or probated sentence, consented to waive a presentence report and, in addition, accepted the following terms: “the original sentence in this case will then be set aside and [the sentences for all three escapes] will run concurrently with the sentence ... in case no. CC-81-149 in the Circuit Court of Bibb Co., Ala., and the Defendant’s Petition for Error Coram Nobis would be dismissed as moot.”

On February 1, 1984, the trial court granted the motion to amend the indictment and, following a thorough Boykin colloquy, accepted Brantley’s pleas and pronounced him guilty of three charges of escape from the county jail. He sentenced Brantley to three years’ imprisonment for each crime, the sentences to be served concurrently, and announced that Brantley was to be credited with the appropriate amount of jail time served.

The minute entries, signed by the trial judge, reflect the following:

“On this the 1st day of February 1984, Previous sentence given in Count 1 of the indictment is set aside and dismissed. Petition for Writ of Error Coram Nobis is moot.
s/R. Armstrong, Judge”
“On this the 2nd day of February, 1984, It was suggested and adjudged in open court that the error coram nobis petition was moot. However, the better procedure would be to use the error coram nobis petition as the basis for setting aside the previous corrections [sic — convictions?] in this case (count 1 of the amended indictment.) It is so ORDERED. All other orders remain exactly the same.
s/R. Armstrong, Judge”

Within forty-two days of his guilty pleas, Brantley appealed to this court. If the appeal is construed as a request for review of the dismissal of his coram nobis petitions, the foregoing order of the trial judge shows that the petitions were, in fact, granted “as the basis for setting aside his previous [convictions].” If the appeal is construed as a direct appeal of the convictions arising out of his guilty pleas on February 1, 1984, the convictions are affirmed. The record reveals that Brantley entered the pleas knowingly, voluntarily, and after full disclosure of the State’s recommendation regarding his sentence.

Brantley’s argument that the trial judge erred by increasing his sentence from two to three years following his appeal, without setting forth a reason, in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), loses its force when considered in view of the fact that Brantley agreed to the three-year sentence prior to entering his plea. “[I]f the entering of a guilty plea represents a voluntary and intelligent choice among the alternative choices of action open to the defendant, [then the plea] waives all nonjurisdictional defects in the prior proceedings against an accused.” Morrow v. State, 426 So.2d 481, 484 (Ala. Crim.App.1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Johnny LYONS v. STATE.
    7 Div. 272.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Kermit Mac Downs, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Johnny Lyons was indicted and convicted for trafficking in cocaine in violation of Alabama Code 1975, § 20-2-80(2)(a) (1980). Sentence was three years’ imprisonment and a fine of $50,000. Two issues are raised on appeal.

I

The State presented sufficient evidence to establish Lyons’ constructive possession and knowledge of the presence of the cocaine.

Based on information received from a confidential informant, officers of the Narcotics Division of the Gadsden Police Department searched the residence of William E. Heard on the morning of October 14, 1983. When Captain J.C. Owens went into the den, Lyons “was sitting in a chair near the wall, and with a bag between his legs.” Lyons was the only person in the den, although five other adults were in the house, including Mr. and Mrs. Heard. The Captain searched the “saddlebag” between Lyons’ legs and found a .22 caliber derringer pistol and a small bag of marijuana.

As the Captain bent over to check the bag, he “noticed that the skirt around the bottom of the chair was pushed in, and apparently, hung on something.” After finding the marijuana, he arrested Lyons and moved him away from the chair. Under the chair he found “a little pouch with a zipper on it and a belt.” Inside the pouch was a plastic bag containing cocaine. The remainder of the house was searched and marijuana was found in one of the bedrooms.

Lyons admitted to the police that “they had purchased some cocaine that morning and that they had used some cocaine.” However, Lyons maintained that he did not own the cocaine found under the chair.

Mildred Heard testified that Lyons arrived at her home at 8:30 on the morning of the search along with Ronald Buchanan, Leonard Carter and Vanessa Powell. While she was cooking breakfast, around 9:30, the officers arrived with the search warrant. Mrs. Heard denied that her husband was either using or selling drugs, although she admitted that the marijuana was his.

Mr. Heard testified that Buchanan was his cousin-in-law (his wife’s first cousin) and that he had known Carter for about a year or two. He did not know Lyons or Powell. Heard stated that Lyons was wearing the pouch in which the cocaine was found when Buchanan introduced Lyons to Heard. Heard admitted that the marijuana found in the bedroom was his but denied any knowledge of the cocaine.

Where the accused is not in exclusive possession of the premises, his knowledge of the presence of the controlled substance may not be inferred “unless there are other circumstances tending to buttress this inference.” Temple v. State, 366 So.2d 740, 743 (Ala.Cr.App.1979). When constructive possession is relied upon, there must be some fact or circumstance which will afford the jury a “rational inference” that the accused had knowledge of the drugs. Ex parte Campbell, 439 So.2d 723, 724 (Ala.1983). Here, that rational inference is supplied by the combined facts that Lyons was seen wearing the very pouch in which the cocaine was subsequently found and his admission that “they” had purchased and used cocaine that morning. The fact that drugs are found among or near the defendant’s personal belongings is a circumstance which may be sufficient to link him with possession. Annot., 56 A.L.R.3d 948, § 10 (1974). “The accused’s knowledge of the presence of the controlled substance may be proved by ‘his declarations, or admissions, and contradictory statements, and explanations made by him.’ 28 C.J.S.Supp., Drugs & Narcotics, § 204 (1974).” Cason v. State, 435 So.2d 200, 202 (Ala.Cr.App.1983). See also Ex parte Story, 435 So.2d 1365 (Ala. 1983).

Guilt of the possession of a controlled substance does not depend on ownership and the State does not have to prove that the defendant owned or had title to the drugs. Mitchell v. State, 395 So.2d 124, 126 (Ala.Cr.App.1980), cert. denied, Ex parte Mitchell, 395 So.2d 127 (Ala.1981). See State v. Chapman, 679 P.2d 1210 (Mont.1984).

II

An expert testified that the total weight of the powder in the plastic bag was 34 grams. He stated that 80% of the powder (27.2 grams) was cocaine and the remaining 20% was some other substance.

In Dickerson v. State, 414 So.2d 998, 1002 (Ala.Cr.App.1982), we held that a defendant charged with trafficking in marijuana may prove that the quantity of marijuana seized contained excludable matter and that he was not in possession of the 2.2 pounds of cannabis necessary for a trafficking charge. The very definition of marijuana includes all parts of the marijuana plant except certain portions consisting mainly of the mature stalks. Alabama Code 1975, § 20-2-2(15).

There is no similar provision with regard to the offense of trafficking in cocaine. In fact, the trafficking statute itself specifically rejects this argument by providing that “(a)ny person ... who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, described in section 20-2-25(1), is guilty of a felony, which felony shall be known as ‘trafficking in cocaine.’ ” Alabama Code 1975, § 20-2-80(2) (emphasis added). Under this statute, the State is not required to prove that the accused possessed 28 grams or more of pure cocaine.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Leroy Dewayne SMITH v. STATE.
    8 Div. 95.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Tim Jolley, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The only issue presented on appeal is thus stated in appellant’s brief:

“Whether or not a person may be punished for both the offense of forgery and the offense of criminal possession, of a forged instrument with respect to the same instrument, unless arising out of separate and distinct transactions.”

The correct answer to the issue is in the negative, as shown by Alabama Criminal Code, § 13A-9-8, which provides:

“A person may not be punished for both the offense of forgery and the offense of criminal possession of a forged instrument with respect to the same instrument, unless arising out of separate and distinct transactions.”

Although appellant’s counsel is correct as to the legal proposition relied upon, he is incorrect in his contention that appellant was punished “with respect to the same instrument,” and he is incorrect in his contention that the two offenses for which he was punished did not arise “out of'Separate and distinct transactions.”

The judgments from which this appeal was taken were on Count One and Count Three of a four-count indictment. Count One charged a violation of § 13A-9-6 of the Alabama Criminal Code by possessing or uttering a check on the Home Bank of Guntersville, Alabama, for the sum of one hundred dollars; Count Three charged him with a violation of the same section of the criminal code of Alabama by possessing or uttering a forged check on the same bank for the sum of eighty dollars. Count Two of the indictment charged this appellant with having falsely made, completed or altered the same check described in Count One; Count Pour of the indictment charged him with having falsely made, completed or altered the instrument described in Count Three of the indictment.

The judgments of conviction and sentence appealed from were rendered on defendant’s pleas of guilty on a hearing at which defendant appeared with his attorney and at which, according to the court reporter’s transcript, there was an extended colloquy among the trial judge, the defendant, and the attorneys for the respective parties, by which it was shown that defendant’s pleas of guilty were voluntarily, understanding^, and intelligently made so as to show full compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There is no contention to the contrary. Appellant’s contention is based exclusively upon the fact that the trial judge during the colloquy referred at times to Count Two of the indictment instead of to Count Three thereof as one of the counts to which the defendant was pleading guilty. At the commencement of the colloquy, the following occurred:

“THE COURT: Mr. Jolley (Defendant’s attorney), I understand the State has moved to strike Count 2 and 4 of the indictment. Is that with the Defendant’s consent?
“MR. JOLLEY: Yes, sir, it is.
“THE COURT: And we are traveling on Counts 1 and 3, which charge possession of a forged instrument; is that right?
“MR. JOLLEY: Yes, sir, that is correct.
“THE COURT: I understand on those charges, Mr. Smith, that you wish to withdraw your plea of not guilty and enter a plea of guilty; is that right?
“THE DEPENDANT: Yes, sir.”

Nevertheless, the transcript shows that the trial judge on more than one occasion during the colloquy referred to Count Two, instead of Count Three, as one of the counts to which defendant was pleading guilty. The last reference by the trial judge during the colloquy as to the numbers of the counts to which defendant was pleading guilty was in the following portion of the colloquy:

“At this point, Mr. Smith, you have the right to make any statement you would like to make before the sentence of the law is imposed upon you. Anything you want to say, sir?
“THE DEFENDANT: No, sir.
“THE COURT: All right, sir. Under Count 1 of the indictment, it is CONSIDERED and ADJUDGED by the Court that the Defendant be imprisoned in the penitentiary of this State for a term of 15 years.
“It is further CONSIDERED and ADJUDGED by the Court that the Defendant be imprisoned in the penitentiary of this State for a term of 15 years on Count 3 of the indictment, and that the sentences will run concurrently each with the other.”

Our review of the record proper and the transcript of the proceedings convinces us that, notwithstanding some conflicts between some parts and other parts of what the trial judge stated orally and between parts of the transcript and the record proper, the defendant voluntarily, intelligently, and understandingly pleaded guilty to Counts One and Three of the indictment and that appellant’s contention to the contrary is not well taken.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Travis WELCH v. STATE.
    8 Div. 148.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Benjamin H. Rickey, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Travis Welch pled guilty to two separate offenses of the unlawful breaking and entering of a vehicle in violation of Alabama Code 1975, § 13A-8-11. Sentence was a two-year concurrent sentence in each case.

On appeal, the only contention is that Welch was “denied a full and fair appellate review due to the lack of a complete transcript of the proceedings at his sentence and probation hearing.”

The sentence and probation hearing was reported. Contained in the record of that proceeding is the notation “(OFF THE RECORD DISCUSSION).” Appellate counsel states that “the Court’s off the record discussion contains testimony which is invaluable to the defendant for the preparation of his appeal in the case.” There is no allegation of the substance of this testimony. An appellant “bears the burden of bringing the record before an appellate court. He and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a correct record.” Harris v. State, 420 So.2d 812, 816 (Ala.Cr.App.1982) (citations omitted). This is not the situation where there was no court reporter present. White v. State, 403 So.2d 287 (Ala.Cr.App.), cert. denied, Ex parte White, 403 So.2d 292 (Ala.1981). Rule 10(f), Alabama Rules of Appellate Procedure, “specifically authorizes the correction of an omission from the record.” Pope v. State, 387 So.2d 300, 301 (Ala.Cr. App.1980). See also Weaver v. State, 401 So.2d 344 (Ala.Cr.App.1981). Since this rule has not been invoked to supply the complained of omission, there is nothing for this Court to review.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: BOYD, Justice. OVERTON, Justice, McDONALD, Justice,

text:
    The DEPARTMENT OF TRANSPORTATION OF the STATE OF FLORIDA, Petitioner, v. Robert M. NALVEN and Lionel I. Nalven, Respondents.
    Nos. 61795, 61811.
    Supreme Court of Florida.
    April 19, 1984.
    Rehearing Denied Sept. 26, 1984.

      Alan E. DeSerio, Appellate Atty., Oval Boone, Trial Atty., and John H. Beck, Gen. Counsel, Tallahassee, for petitioner.
    Lawrence J. Robinson of Robinson & Robinson, P.A., Sarasota, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of a decision of a district court of appeal reported as Nalven v. Division of Administration, 409 So.2d 166 (Fla.2d DCA 1982). The district court of appeal certified that its decision passed upon a question of great public importance. The Department of Transportation petitioned for discretionary review of the decision both on the jurisdictional ground of the certified question and on the ground of direct and express conflict of decisions. We accept jurisdiction based on the certified question. Art. V, § 3(b)(4), Fla. Const.

In essence this case presents a question of the admissibility of testimony ostensibly based upon expert opinion. But the eviden-tiary question turns on the resolution of questions arising from the use of market value as the basic indicator of “full compensation” for property taken by eminent domain as required by the Florida Constitution. Rejecting the Department of Transportation’s argument that the state should not have to compensate for value attributable to anticipation of the project for which the property is being taken, the district court held that a landowner is entitled to receive the fair market value of the property at the time of the taking. For the reasons that follow we approve the decision of the district court.

On February 14, 1977, the Department of Transportation initiated proceedings for condemnation of several parcels of land needed for the construction of a portion of Interstate Highway 75 in Manatee County. Among the defendant landowners were the respondents Robert and Lionel Nalven, who owned a tract of approximately one thousand acres, of which 91.5 acres were condemned for the highway right-of-way. By the time the case went to trial, the only remaining matter of dispute between respondents and the state was the valuation of, and compensation to be paid for, the 91.5 acres to be taken by the state.

At trial each side presented the testimony of an appraisal expert. Both experts testified that the best way to determine the market value of unimproved land is to gather and examine information on the sales prices of similar land in the same area. They testified further that the similarities and differences in various characteristics of the parcels studied should then be analyzed in order to find the recent land sales that are most “comparable.” The characteristics studied are those which relate most directly to market value, such as size, location, topography, road access, drainage, waterfront access, and proximity to beneficial or obnoxious facilities or projects. These “comparable sales” are then expected to reveal market values that can be used to approximate the market value of the land being appraised.

The landowners’ expert testified that of the fourteen sales in Manatee and Sarasota Counties that he considered, three related to parcels that were most comparable to the land being taken. The three comparable sales considered by the landowners’ expert were: (1) a 1973 sale of the parcel to be appraised (i.e., the owners’ thousand-acre tract of which the 91.5 acres being condemned were a part), which yielded $2,100 per acre; (2) a 1973 sale of a nearby parcel referred to as Creekwood, which sold for $2,365 per acre; and (3) a later sale of a parcel in Sarasota County, referred to as The Meadows, for $3,500 per acre. The expert testified that after making further adjustments based on the passage of time and refinements based on remaining differences, he concluded that as of the date of his testimony the land being taken for the highway had a market value of $2,350 per acre resulting in an appraisal of $215,110.

The Department of Transportation’s expert testified that although the prior sale of respondents’ property and the sale of Creekwood were among the recent sales of comparable properties in the area, he excluded them from his analysis because the sales prices of the parcels reflected an increase in market value resulting from the expectation of the proposed highway project. He expressed the opinion, that is, that in 1973 the two parcels sold for more than they would have in the absence of any anticipation of the construction of the interstate highway. The Department’s expert appraised the land at $1,440 per acre, thus giving it a total value of $131,825. The landowners’ counsel moved to strike this testimony but the trial judge allowed it to stand. The jury returned a verdict fixing the compensation at $133,525, which reflected acceptance of the state expert’s valuation plus an allowance for fencing replacement costs. The landowners appealed.

The sales discarded from consideration by the state’s appraiser occurred in 1973. The record shows that on November 7, 1974, the Department of Transportation adopted a resolution indicating the general location proposed for Interstate 75. On February 1, 1977, the Department adopted a resolution specifying the route and identifying the particular tracts of land needed for the construction of the highway. The instant condemnation action was begun shortly thereafter. The Department argues that the sales in question were properly disregarded even though they occurred before the official acts identifying either generally or specifically the location of the highway. The Department argues that even before November 7, 1974, there was general knowledge in the marketplace concerning the location; it was openly discussed in public meetings and in documents open to public inspection. There was testimony that the 1973 sales were negotiated in light of common awareness of the proposed general location of the highway.

On appeal the district court held that the trial court had erred in refusing to strike the testimony of the Department’s expert that the two excluded sales were inappropriate to consider and his appraisal testimony based thereon. The district court explained that “any pertinent sale of land comparable to the condemned land which occurs before the date of the taking can be considered in determining value even if the sales price is enhanced by virtue of the proposed improvement.” 409 So.2d at 169. Thus the district court concluded, and correctly so, that the state’s expert went beyond his appraisal expertise and expressed to the jury an erroneous legal conclusion. The district court also concluded that since the state expert obviously influenced the jury with his erroneous theory, the judgment would be reversed for a new trial.

In reaching its decision the district court relied upon the long-standing precedent of Sunday v. Louisville & Nashville Railroad, 62 Fla. 395, 57 So. 351 (1912). There the Supreme Court of Florida reversed a condemnation award and remanded for a new trial on compensation because the trial judge had instructed the jury not to consider any enhancement in the value of the property taken caused by the proposed improvement. This Court explained that

the law does not deny to the owner any real and reasonable enhancement in the market value of the property to be appropriated by reason of “any improvement proposed.” If the property naturally, or in common with other property similarly conditioned, increases in market value in anticipation of the proposed improvement, before the appropriation, the compensation therefor is the fair actual market value at the time of the lawful appropriation.

62 Fla. at 397, 57 So. at 351 (emphasis in original). The error in Sunday was in an instruction to the jury. But the district court correctly recognized that the principle of full compensation at the time of taking also applies to render inadmissible any expert opinion testimony based on an erroneous theory of valuation. Anderson v. State Road Department, 204 So.2d 899 (Fla. 1st DCA 1967).

Although correct in its application of the law, the district court went on to suggest several reasons why this Court might wish to depart from the rule expressed in Sunday v. Louisville & Nashville Railroad. After setting out its concerns the district court certified its decision as having passed upon a question of great public importance. The district court framed the certified question as follows:

To what extent, if any, is a Florida property owner in a condemnation proceeding entitled to the enhancement in the value of his property caused by the anticipation of the proposed project for which the land is being condemned?

409 So.2d at 171. We answer the question by holding that a landowner in a condemnation proceeding is entitled to the fair market value of the property at the time of the taking even if it reflects the anticipation of the proposed project.

The Department of Transportation argues that its expert’s testimony was properly allowed. The Department urges that a landowner whose property is taken should be compensated on the basis of the value of the property prior to any enhancement in value caused by the anticipation of the project for which the land is being taken. The Department asks us to adopt a rule of law in effect freezing the value of the land to be taken as of the time when the state becomes committed to placing the public project in a certain area, or, expressed another way, the time when the scope of the project becomes known in the market. The “scope-of-the-project” rule, the Department says, would exclude project influence from the appraisal of value and from the determination of just compensation, thereby protecting the public from having to pay a premium for needed lands and preventing landowners from reaping windfall profits simply because the state has an absolute need for certain land. The Department cites United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir.1979), and numerous decisions from other states in support of the wisdom of such a rule.

Attempting to clear the way for us to adopt the so-called “scope-of-the-project” rule, the Department argues that Sunday v. Louisville & Nashville Railroad is inapplicable to the problem before us because: (1) it was based on a provision of the 1885 constitution which applied only to exercises of the power of eminent domain by private individuals and corporations and (2) the provision of the 1885 constitution upon which the decision was based has been eliminated and has no counterpart in the present Florida constitution or in the statutes. Finally the Department argues that if the Sunday rule is still the law of Florida and is applicable to the facts of this case then it should be abrogated in favor of the “scope-of-the-project” rule. We shall discuss the Department’s constitutional and historical arguments first and shall then deal with its public policy arguments for a change in the law.

Article XVI, section 29 of the Florida Constitution of 1885 governed the appropriation of private property and rights of way to the use of corporations and individuals by eminent domain. It pertained to any legislatively authorized condemnation for purposes such as railroads, utilities easements, ways of necessity, drainage, and the like. It provided in part that the compensation for such takings should be ascertained “irrespective of any benefit from any improvement proposed by such corporation or individual.” The Department asserts that the holding in Sunday was grounded squarely on the constitutional language and argues that since both article XVI, section 29 and the Sunday case pertained to condemnation by private corporations Sunday has no applicability to the instant ease. This argument is erroneous. Petitioner is correct in pointing out that article XVI, section 29 applied only to private condemnations. Daniels v. State Road Department, 170 So.2d 846 (Fla.1964). The Sunday decision, however, provided in essence a construction of the constitutional words, “full compensation,” and mentioned the constitutional words, “irrespective of any benefit,” etc., only to refute any suggestion that they limited or qualified the meaning of “full compensation.” Since article X, section 6, of our present constitution requires full compensation in all exercises of the eminent domain power, both public and on behalf of individuals or corporations, Sunday is still controlling authority and now applies even where the condemning authority is a state agency.

The Department also argues that since the language “irrespective of any benefit from any improvement proposed by such corporation or individual,” was eliminated by the constitutional revision of 1968, Sunday is no longer the law of Florida. Like the assertions just discussed, this argument also assumes that the Sunday decision was compelled by the constitutional language. A careful reading of the Sunday opinion, however, reveals that the decision was rendered not because of but in spite of the quoted language. Far from being grounded in the constitutional language, “irrespective of any benefit,” the Sunday decision held the language inapplicable to the facts of the case, that is, inapplicable to enhancement in market value of the land taken due to anticipation of the project. The Court mentioned the constitutional language in order to explain why it did not compel the conclusion sought by the appellee, the condemnor. The “benefit” referred to in article XYI, section 29 meant not enhancement in the value of the land taken, but rather any increase in the value of land not taken, as, for example, by reason of its being adjacent to a railroad or other improvement. The quoted clause was meant to negate any intention of allowing a private condemnor to offset the value of benefits to the remainder of the condemnee’s land against the compensation paid for the property taken. See Daniels v. State Road Department, 170 So.2d 846 (Fla.1964); § 73.071(4), Florida Statutes (1981). Therefore, the clause, “irrespective of any benefit,” etc., was not the basis for the Sunday decision. Sunday applied the concept of “full compensation” applicable to takings by individuals and corporations under the 1885 constitution. Under article X, section 6 of the Florida Constitution of today, “full compensation” is to be paid for all property taken by condemnation, whether by a state agency or an authorized private person. Therefore, the absence of language in article X, section 6 corresponding to “irrespective of any benefit from any improvement,” does not in any way indicate that the rule of Sunday has been abrogated. As the district court correctly recognized, Sunday continues to be the law of Florida and fully applies to this case.

62 Fla. at 397, 57 So. at 351.
(4) When the action is by the Division of Road Operations, county, municipality, board, district or other public body for the condemnation of a road, canal, levee or water control facility right-of-way, the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason of the construction or improvement made or contemplated by the petitioner, shall be offset against the damage, if any, resulting to such remaining adjoining property of the defendant property owner by reason of the construction or improvement, but such enhancement in the value shall not be offset against the value of the property appropriated, and if such enhancement in value shall exceed the damage, if any, to the remaining adjoining property there shall be no recovery over against such property owner for such excess. The present case, of course, presents no issue of remainder damages or remainder value enhancement.

We come now to the Department’s plea for a change in the law. As was stated above the Department urges upon us the “scope-of-the-project” rule. Such rule, as interpreted by the state, would admit the expert’s testimony that the questioned sales were to be discarded from consideration on the ground that they were negotiated at a time when the general location of the interstate highway through Manatee County was known in the real estate marketplace.

The “scope-of-the-project” rule was first announced in United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943). There the government took various lands by damming a river and flooding a valley, creating a large lake. On the shore of the lake there grew a small settlement, drawn there by the amenities offered by the lake. Among those dispossessed by the flooding project was a railroad, whose right-of-way therefore had to be relocated. When the government sought to condemn a part of the newly settled area for railroad purposes, the owners claimed the right to be compensated for the value of their lands as part of a desirable lakeside community, while the government sought to value it as what it was before the creation of the lake, uncleared brush lands. Finding that relocation of the railroad had been part of the project from its inception and that it was public knowledge that the route of it would probably be through the condemnees’ lands, the Court held they were not entitled to receive the market value of their land as enhanced by river dam project. In so holding the Court fashioned the “scope-of-theproject” rule. Thus the rule developed in what many commentators call a “supplementary taking” or “expanded project” situation. See, e.g., 4 J. Sackman, Nichols’ Law of Eminent Domain § 12.3151[3] (rev. 3d ed. 1981). Such is not the situation we deal with here.

In support of its position, the Department relies on United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir.1979), which provided a detailed explanation of the “scope-of-the-project” rule. The Court said that the rule (1) protects the government from having to pay false, “hold-up” value attributable to the government’s special need for particular property and (2) prevents the payment of compensation for value attributable to benefits conferred on the land (together with neighboring lands) by the proposed project for which the land is being taken.

We decline to adopt the scope-of-the-project rule. The constitution of Florida and the applicable statute control. Article X, section 6(a) of the Florida Constitution, provides: “No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.” Section 73.071(2), Florida Statutes (1975), provides: “The amount of such compensation shall be determined as of the date of trial, or the date upon which title passes, whichever shall occur first.”

The constitutional requirement of full compensation means that the landowner must be completely paid for that which is taken, and compensated for the whole loss occasioned by the taking. Florida East Coast Railway v. Martin County, 171 So.2d 873 (Fla.), cert. denied, 382 U.S. 834, 86 S.Ct. 79,15 L.Ed.2d 78 (1965); Meyers v. City of Daytona Beach, 158 Fla. 859, 30 So.2d 354 (1947). In most cases it will be necessary and sufficient to full compensation that the award constitute the fair market value of the property. Casa Loma Springs Development Co. v. Brevard County, 93 Fla. 601, 112 So. 60 (1927); Sunday v. Louisville & Nashville Railroad.

To accept the Department’s argument that the 1973 sales were properly discarded because of awareness of the project (even though they took place prior to both the general and the specific announcements of the location of the route of Interstate 75 through Manatee County) would lead the courts of the state into inquiries for which there would be no clear lines of distinction. Before it was decided that Interstate 75 would traverse Manatee County, it had to be decided that the highway would extend into southwest Florida. Before it was decided that the highway would run through southwest Florida, a decision was made that it would enter the southern half of the Florida peninsula. Before it was decided that the highway would extend into southern Florida, there was a plan for an interstate limited access highway connecting Florida with the other states of the eastern United States, which would extend into central Florida from the north. The interstate highway system and proposals for its various routes have been under discussion for decades. Fixing the date when the scope of such a project was known in the market is a task much more easily discussed in theory than performed in deciding actual cases.

When a project such as a limited-access highway is announced and the general area through which it is to pass is known to the public, but the specific location is yet to be decided, there may well be marked increases in market values in the area due to the anticipation of the project, but these increases will result from a whole host of diverse influences and market forces. For example, once it became known that Interstate 75 was to be extended into southern Florida it could be assumed that it would be placed so as to serve the rapidly growing regions of the west coast, including Manatee and Sarasota Counties. Even this much general knowledge could have and probably did cause a general increase in land values, since good interstate highway access can make a region a more desirable place to live. Similarly, by making the Manatee-Sarasota area more accessible from the north by automobile, the highway (and anticipation thereof) probably stimulated all elements of the tourism industry, thereby also having an enhancing effect on land values generally. Thus it is very difficult to determine where to draw the line against value enhancement due to project anticipation when determining fair market value for compensation purposes.

In holding that a property owner is entitled to full compensation based on fair market value at the time of taking including increased value due to anticipation of the project, we of course do not mean to say that the state should have to pay inflated compensation based on false, “hold-up” value attributable purely to government demand for the particular parcel. It should remain open to the state to try to show through expert testimony that the valuation claimed by the landowner reflects false, “hold-up” value due purely to specific demand. But if the landowner, using established conventional appraisal methods, establishes fair market value of the land on the date of taking, the mere fact that it is greater than the value before the location of the project was announced or became known does not deprive the landowner of the right to full compensation based on fair market value at the time of taking.

The general rule that the special need of the condemning authority should not be allowed to enhance the value of property for purposes of determining the compensation to be paid is but a corollary of the rule that compensation should be based on fair market value. The true market value of property is not likely to increase as a result of its being specifically targeted for condemnation. Indeed, as this Court recognized in State Road Department v. Chicone, 158 So.2d 753 (Fla.1963), the more probable result is a decrease in value:

[W]hen land is definitely marked for condemnation ... it shares none of the beneficial effects which could flow from anticipation of the proposed improvement for it will not be available for private use when the project is completed. Once selected for condemnation the marketability, both sale and rental, and to some extent the use, of property is sterilized and its value, either as determined by market value or use by the owner, is decreased. This decrease no doubt is in proportion to the lapse of time between the announcement that the lands will be taken and the actual taking. It is difficult to conceive of a situation in which property will increase in value because of the prospect of condemnation. A tenant’s use of such property can only be temporary, and a purchaser would buy only an undetermined award in a condemnation suit.

158 So.2d at 754-55. The Court in Chicone held that when land specifically designated for condemnation depreciates in value after such designation but before the date of actual taking, the owner should be compensated on the basis of the market value prior to such depreciation. The decision was grounded in considerations of equity and fairness. This Court subsequently reaffirmed the principle of Chicone in Dade County v. Still, 377 So.2d 689 (Fla.1979).

The record reveals that the landowners’ tract (of which a part has been taken) and Creekwood were large parcels both of which were bisected by the construction of the north-south interstate highway. Both parcels were contiguous to existing roads which were to be connected to the limited-access highway by interchanges. When a state witness made reference to interchanges at trial, the landowners’ counsel objected and the testimony was stricken. In its brief, the Department points out that property contiguous to an interstate highway at its interchanges or access points can be expected to greatly increase in market value because of its suitability for commercial use. Although the argument is not explicitly made, the Department seems to suggest that when part of an owner’s land is taken for highway construction, but the owner is left with land adjacent to an interchange, the increase in the value of what he is left with justifies paying depressed value for the land taken. This is, of course, expressly forbidden by section 73.-071(4), Florida Statutes (1975).

The landowners’ parcel sold for $2,100 per acre in 1973. At the condemnation trial four years later the Department's expert appraised it at nearly $700 per acre less on the ground that the 1973 sale and another comparable sale reflected enhancement due to anticipation of the highway construction project. We hold that this testimony was based on an erroneous legal premise and should not have been allowed.

Consistent with Sunday v. Louisville & Nashville Railroad, we hold that if the 1973 sales of the landowners’ property and Creekwood reflected market value that had increased because of public knowledge of the probable alignment of Interstate 75 in Manatee County, such was a natural increase in market value and was not to be disregarded or discounted in determining market value at the time of the taking.

The trial court erred in refusing to strike the testimony of the Department’s appraisal witness because the testimony was based on a legal proposition which we, consistent with precedent, hold to be erroneous. The district court correctly so held in reversing the judgment. The decision of the district court of appeal ordering a new trial is approved.

It is so ordered.

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

OVERTON, J., dissents with an opinion, in which McDONALD and EHRLICH, JJ., concur.

McDONALD, J., dissents with an opinion, in which OVERTON and EHRLICH, JJ., concur.

OVERTON, Justice,

dissenting.

I strongly dissent. The majority opinion grants a substantial windfall to a select few landowners at the expense of the taxpayers of this state through a specious application of the constitutional phrase “full compensation.” In doing so, the majority erroneously relies on an inapplicable decision of this Court which was written to construe a constitutional provision no longer in existence and which, when it did exist, applied only to private individuals and corporations. Regrettably, this opinion will have a major fiscal impact for years to come because it will require the state to pay untold millions as a premium in compensation for increases in property value caused solely by the government's proposed improvement for which the property was taken. This opinion will necessarily result in an increase in the cost of government improvements and will possibly thwart the development of some public projects because of the decline in available taxpayer funds with which to pay the increased compensation required.

In reaching their decision, the majority placed major reliance on Sunday v. Louisville & Nashville Railroad, 62 Fla. 395, 57 So. 351 (1911). That decision involved a private corporation and the construction of article XVI, section 29 of the 1885 Constitution. That constitutional provision clearly applied only to a “corporation or individual” and clearly stated that the compensation for property taken should be calculated “irrespective of any benefit from any improvement proposed by such corporation or individual.” This section is no longer included in our constitution. Even before it was eliminated, however, this Court held, in Daniels v. State Road Department, 170 So.2d 846 (1964), that section 29 of article XVI of the 1885 Constitution did not apply to governmental bodies. Further, the Daniels court upheld section 73.10(3), Florida Statutes (1959), which allowed the state to offset the enhancement in value of the remaining property caused solely by the construction of the improvement, against the damage resulting to the remaining property by reason of the improvement. The majority did not recede from Daniels and as a result we find ourselves in a position where enhancement caused by the improvement may properly be considered in determining the value of damage to the remaining property although it is not proper to consider such enhancement when determining compensation due for the land taken.

There is no logic in the majority opinion which, on the one hand, allows consideration of depreciation brought about by anticipation of the governmental project and the imminent taking of the land and, on the other hand, disallows consideration of enhancement attributable to that same anticipation of the governmental project. See State Road Department v. Chicone, 158 So.2d 753 (Fla.1963). The majority clearly does not believe that appreciation and depreciation in value brought about solely by the anticipated project should be a two-way street. The “scope-of-the-project” rule balances the rights of all parties and treats appreciation and depreciation in the same manner.

I fully concur with Justice McDonald’s dissent and believe the scope-of-the-project rule is a proper, fair, and equitable method for determining full compensation for both the land taken and the damage to the remaining property.

The majority, by judicial fiat, has read into our present constitutional provision a directive that a property owner is entitled, as a matter of right, to have the government pay, in addition to the true market value, the enhancement in that value brought about solely by the government project proposed. This is an extremely strained interpretation of “full compensation” as it appears in section 6 of article X of the Florida Constitution. By so doing, the majority has adopted what is clearly the minority view in this country.

The majority opinion is a property owner’s bonanza and a taxpayer’s nightmare. There is no constitutional justification for the majority's view. The district court’s decision should be disapproved and we should adopt the scope-of-the-project rule for determining full compensation.

McDONALD and EHRLICH, JJ., concur.

McDONALD, Justice,

dissenting.

I dissent. Not allowing DOT’s expert to exclude property with inflated prices due to an expectation of the proposed project from his opinion of market value allows the Nal-vens to reap a windfall profit at the unwarranted expense of the taxpayers of this state.

In Sunday v. Louisville & Nashville Railroad, 62 Fla. 395, 57 So. 351 (1912),. this Court reversed a condemnation award and remanded for a new trial on compensation because the trial court had instructed the jury not to consider any enhancement in the value of the property taken by the proposed improvement. This holding arose from the Court’s interpretation of article XVI, section 29 of the 1885 Constitution which provided for full compensation in eminent domain proceedings “irrespective of any benefit from any improvement proposed by [the appropriating] corporation or individual.” The Court also relied on section 2013, Florida Statutes (1906), which tracked the language of article XVI, section 29.

The constitutional and statutory language relied on in Sunday, however, no longer exists. Art. X, § 6(a), Fla. Const. Relying on an outdated case which interprets currently nonexisting law is unwarranted. Florida’s position on this matter, as enunciated in Sunday, is in the minority, Annot., 147 A.L.R. 66 (1943), and DOT argues convincingly that we should join the nationwide majority of jurisdictions and adopt the “scope-of-the-project rule.”

The Fifth Circuit Court of Appeals has stated the scope of the project rule:

If the condemned land was probably within the scope of the governmental project for which it is being condemned at the time the Government became committed to that project, then the owner is not entitled to any increment in value occasioned by the Government’s undertaking the project.

United States v. 320.2 Acres of Land, 605 F.2d 762, 781-82 (5th Cir.1979). This rule had previously been adopted by the United States Supreme Court in United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed.2d 336 (1943). The fifth circuit has also outlined several reasons supporting the rule:

At least three considerations support this principle excluding from compensation “value resulting from the government’s special or extraordinary demand for the property” — value that is caused solely by the Government’s actions as taker of the condemned property. First, this value is not true “market value” as determined by what a willing buyer would pay a willing seller under “fair market conditions.” The Government has entered the “market” as a “purchaser” with a unique and pressing demand, and in so doing has distorted the market; absent the Government’s activity as “purchaser” or condemnor, there would be no market reflecting this unique demand. That element of value created solely by the Government’s activity as purchaser or condemnor is more “hold-up value” than “fair market value.” Second, to force the Government to pay, because of a special public need for property, a premium over that which the property would bring on the open market absent the Government’s demand, obviously would increase the cost of public projects and perhaps frustrate some pub-lie objectives. Third, to permit recovery of value that is not created by fair, open market conditions would be to award a few private propertyholders windfall gains solely because of public needs and exigencies. The underlying notion of the “no value attributable to Government demand” principle, then, is that the Government, when pursuing public benefits through its condemnation power, should not have to spend more for property than would a reasonable and willing private purchaser solely because it is exercising its condemnation power on behalf of the public; instead, the Government is to be equated to a private purchaser buying the property for its “highest and best” nongovernmental use in an open market.

605 F.2d at 782-83 (emphasis in original, footnotes and citations omitted). The fifth circuit’s observations point up the inequity in the present case.

This Court previously applied the scope of the project rule in State Road Department v. Chicone, 158 So.2d 753 (Fla.1963), when it held that, in appropriate circumstances, the effect on property values of the prospect of a taking should be disregarded. In Chicone the appropriate circumstances were that the prospective taking would decrease, rather than increase, property values. Other courts, unlike this Court, have recognized that inflated values are just as impermissible as deflated ones.

The [Supreme] Court early recognized that the “market value” of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary. And it was perceived that to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the “just compensation” that the Constitution requires.

United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970) (footnotes omitted). Considerations of equity and fairness require that .taxpayers not be treated differently than private property owners.

In the instant ease applying the scope of the project rule would give the Nalvens their just compensation, rather than more than their just compensation at the taxpayers expense. This case presents us with the opportunity to correct a gross inequity in the law of eminent domain. We should accept the suggestion of Judge Grimes of the Second District Court of Appeal to do so.

OVERTON and EHRLICH, JJ., concur.

      . At the time of the Sunday decision, article XVI, section 29 of the Florida Constitution of 1885 provided:
      Section 29. No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.

      . Until the Daniels decision dispelled the confusion, this Court had frequently treated the “full compensation” requirement of article XVI, section 29 as applicable to condemnations by both private persons and public agencies. See, e.g., Jacksonville Expressway Authority v. Henry G. DuPree Co., 108 So.2d 289 (Fla.1958); Meyers v. City of Daytona Beach, 158 Fla. 859, 30 So.2d 354 (1947).

      . Article X, section 6, Florida Constitution, provides:
      (a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.
      (b) Provision may be made by law for the taking of easements, by like proceedings, for the drainage of the land of one person over or through the land of another.

      . The pertinent paragraph of the Sunday opinion reads as follows:
      The constitution contemplates and the statute requires that the issue submitted shall be what is "full compensation” for the property to be appropriated at its then fair actual value, irrespective of or without regard to any benefits that may accrue to the owner of the property from any improvement proposed by the petitioner; but the law does not deny to the owner any real and reasonable enhancement in the market value of the property to be appropriated by reason of “any improvement proposed.” If the property naturally, or in common with other property similarly conditioned, increases in market value in anticipation of the proposed improvement, before the appropriation, the compensation therefor is the fair actual market value at the time of the lawful appropriation. Giesy v. Cincinnati, Wilmington & Zanesville R.R. Co., 4 Ohio St. 308, text 331; Lewis on Em. Dom. (3d Ed.), Secs. 695 and 7457, and authorities cited; Chicago K. & W.R. Co. v. Parsons, 51 Kan. 408, 32 Pac.Rep. 1083; Newgrass v. Railway Co., 54 Ark. 140, 15 S.W.Rep. 188.

      .Contrary to the suggestion that there is no longer any statute of the same import, section 73.071(4), in cases of certain takings by public bodies, allows enhancement in the value of remainder lands to be offset against remainder damages, but disallows any such offset against the compensation paid for the land taken:


author: ADKINS, Justice.

text:
    EASTERN AIR LINES, INC., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 63949.
    Supreme Court of Florida.
    June 14, 1984.
    Rehearing Denied Sept. 12, 1984.

      Joseph F. Jennings of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., and Larry Levy, General Counsel and Jane Mostol-ler, Asst. General Counsel, Dept, of Revenue, Tallahassee, for appellee.
   ADKINS, Justice.

The case is before us on an order from the First District Court of Appeal certifying the issues in the case to be of great public importance. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.

This case arose with the filing of a complaint by Eastern Air Lines in the circuit court of Leon county seeking declaratory and injunctive relief from the enforcement of provisions of chapter 83-3, Laws of Florida, on the grounds that the law was unconstitutional. Specifically, Eastern alleged that the law violated the equal protection and due process clauses of the Florida and United States Constitutions, was an unconstitutional delegation of legislative authority, and violated the commerce clause of the United States Constitution. By stipulation, the parties agreed to a procedure whereby Eastern was allowed to self-accrue the sales tax imposed under chapter 83-3, which became effective on April 1, 1983, during the pendency of the proceedings subject to certain conditions. The trial judge entered his final judgment in this case on May 27, 1983, incorporating the order he had entered in a similar action filed by Delta Airlines and upholding the constitutionality of chapter 83-3. On June 24, 1983, Eastern filed its notice of appeal with the First District Court of Appeal. On July 12,1983, that court issued its order certifying the case for immediate resolution by this Court.

Chapter 83-3 was enacted during a special session of the Florida legislature which was called for the express purpose of addressing road transportation and public transit needs in the state. The law revises the tax structure of chapters 212 and 220 of the Florida Statutes. The new law eliminates one-half (4 cents) of the excise tax imposed by former chapter 206, Florida Statutes (1981), on fuel purchased for road transportation use and imposes a five percent sales tax on this fuel through the new Part II of former chapter 212, chapter 83-3, section 6. That section bases the five percent sales tax on a predetermined price for fuel of $1,148 per gallon. The new sales tax is imposed on all aviation jet fuel purchased by interstate air common carriers, but is not imposed on railroads and vessels due. to the proration provision which applies to railroads and vessels allowing taxation based on cost and only on the carrier’s intrastate mileage. Ch. 83-3, § 5 (amends § 212.08(4), Fla.Stat. (Supp. 1982)). Section 5 of the law provides:

(4) EXEMPTIONS, ITEMS BEARING OTHER EXCISE TAXES, ETC. — Also exempt are water (not exempting mineral water or carbonated water), and; all fuels used by a public or private utility, including any municipal corporation or rural electric cooperative association, in the generation of electric power or energy for sale. Fuel other than motor fuel and special fuel is taxable as provided in this part, except that fuel expressly exempt herein. Motor fuels and special fuels are taxable as provided in part II, except that those used by vehicles, other than aircraft, which are licensed as common carriers by the Interstate Commerce Commission to transport persons or property in interstate or foreign commerce and vessels used to transport persons or property in interstate or foreign commerce are taxable only to the extent provided herein.

The first issue which we will address is Eastern’s contention that the proration provisions, which do not apply to airlines, violate concepts of equal protection by not treating all common carriers alike. Eastern asserts that all interstate carriers, whether they be airlines, railroads, trucks or vessels, are similarly situated for fuel tax purposes. The circuit court found that Eastern did not sustain its burden of demonstrating that the classification is hostile and oppressive and held that there “is no invidious discrimination by the creation of an arbitrary classification.” The court’s order states: “Classifying airlines differently from vessels and railroads for fuel tax purposes is not arbitrary. Airlines enjoy advantages and must tolerate some disadvantages due to their distinctive nature.” The court cited the example of the airlines being exempt from ad valorem taxes on the lease of property from the county or other governmental unit pursuant to chapter 80-368, Laws of Florida, while vessels and railroads are not. The court also noted that proration of mileage for aircraft has proven difficult in the past because of flight patterns over the Gulf of Mexico and the Atlantic Ocean to avoid the accumulation of intrastate mileage.

When the state legislature, acting within the scope of its authority, undertakes to exert the taxing power, every presumption in favor of the validity of its action is indulged. Only clear and demonstrated usurpation of power will authorize judicial interference with legislative action. Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660 (1954). In the field of taxation particularly, the legislature possesses great freedom in classification. The burden is on the one attacking the legislative enactment to negate every conceivable basis which might support it. Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940); Just Valuation & Taxation League, Inc. v. Simpson, 209 So.2d 229, 323 (Fla.1968). The state must, of course, proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. Department of Revenue v. AMREP Corp., 358 So.2d 1343, 1349 (Fla.1978). A statute that discriminates in favor of a certain class is not arbitrary if the discrimination is founded upon a reasonable distinction or difference in state policy. Allied Stores v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 321 (1959).

We agree with the circuit court’s conclusion that Eastern has not met its burden in attacking the classification made here. They have failed to demonstrate that a hostile and oppressive discrimination has been made. There are many obvious distinctions between public road and highway transportation of persons and property and air transportation upon which the classification at issue could rationally be based. The modes of transportation are inherently and essentially different. The classification drawn does not violate concepts of equal protection.

Eastern also argues that the statute, by adopting an initially established fuel price of $1,148 per gallon upon which to base the tax rate, violates concepts of equal protection and unconstitutionally restricts the rights of individuals to contract. The provision being challenged reads as follows:

§ 212.70 Tax imposed on sale of motor fuel and special fuel; tax upon ultimate consumer; determination by department; notification.—
(3) Prior to June 1 of each year, the department shall determine the appropriate sales tax applicable to the retail price per gallon of motor fuel and special fuel as follows:
(a) The department shall determine the appropriate total motor fuel and special fuel retail price, including any federal, state and local excise taxes on such fuel, for the forthcoming 12-month period beginning June 1, by adjusting the initially established price by the percentage change in the average monthly gasoline price component of the Consumer Price Index, issued by the United States Department of Labor, for the most recent 12-month period ending March 31, compared to said average for the 12-month period ending March 31, 1984. However, the adjustment provided herein shall first be made for the forthcoming 12-month period beginning June 1, 1985.
(b) The tax per gallon shall be computed as 5 percent of said total retail price, rounded to the nearest one-tenth of one cent.
(c) The initially established price is $1,148 per gallon.

Eastern asserts that the price set is not related to the actual price of aviation fuel and, therefore, is arbitrary and unreasonable. We do not agree. The tax is levied on first withdrawal of the fuel from the storage tanks and is imposed on all consumers equally regardless of the nature of transport. We find no merit in Eastern’s argument that the predetermined price structure invidiously discriminates against airlines.

Eastern also contends that section 6 of the law constitutes an improper delegation of legislative power by relating the price adjustment for future periods to the percentage change in the average monthly gasoline price component of the Consumer Price Index issued by the United States Department of Labor. The Consumer Price Index referred to in the law is authorized by 29 U.S.C. §§ 2, 2a and 2b (1976). Under these code provisions, the Secretary of Labor has broad powers to collect, collate and report statistics, and, to that end, has the power to use bureaus provided for the department and is authorized to call upon other departments of the federal government for data and the results obtained by them. More importantly, the Secretary of Labor may “collate, arrange, and publish such statistical information so obtained in the same manner as to him may seem wise.” 29 U.S.C. § 2. The Consumer Price Index is widely used by the federal government to determine such things as cost of living increases in social security, retirement benefits for the military, and other appropriations such as child care payments.

The circuit court in its final judgment determined that the method of appropriation in chapter 83-3 is equivalent to the method which allowed the Department of Education to appropriate state funds to a state agency based on the Florida Price Level Index and which was found to be constitutional in Gindl v. Department of Education, 396 So.2d 1105 (Fla.1979). Eastern argues that the instant case should be distinguished from Gindl because here the Department of Revenue is delegated to determine the price upon which the tax will be based by using a federal agency’s index to be adopted in the future and over which no Florida agency has any control. Eastern argues that since the department, in arriving at the tax applicable to the price, must, of necessity, rely on an administrative act of the United States Department of Labor which will first take place on March 1, 1984, the legislature has shifted its constitutional duties to that federal agency contrary to the established rule of this state, citing as authority this Court’s decision in State v. Welch, 279 So.2d 11 (Fla.1973).

In State v. Welch, this Court considered the constitutionality of a portion of the former Florida Drug Abuse Law, chapter 404, Florida Statutes (Supp.1972), which purported to prohibit certain acts by reference. Specifically, the law declared that it was the intent of the legislature to include under that chapter “all drugs controlled by the drug abuse laws of the United States, now or in the future,” in addition to those specified under Florida' law. § 404.515, Fla.Stat. (Supp.1972). In Welch this Court looked to the rule of law announced in Freimuth v. State, 272 So.2d 473 (Fla.1972). There, the Court said that the legislature may adopt provisions of federal statutes and administrative rules made by a federal administrative body that are in existence and in effect at the time the legislature acts, but it would be an unconstitutional delegation of legislative power for the legislature to adopt in advance any federal act or the ruling of any federal administrative body that Congress or an administrative body might see fit to adopt in the future. 272 So.2d at 476. Accordingly, this Court held the statute unconstitutional for attempting to incorporate by reference future legislative and/or administrative actions of jurisdictions outside Florida. Id.

We believe that Eastern’s reliance on the aforementioned language is misplaced. The statute under attack merely provides that an adjustment be made to the fuel price which is based on the percentage change in the average monthly gasoline price component of the Consumer Price Index. Here, the legislature is merely setting forth the manner in which the department is to determine the appropriate total motor fuel and special fuel retail price. The department is directed with precision how to make such a determination. We think the language of Welch and Freimuth should be interpreted to apply to statutes which incorporate federal statutes or ad- ‘ ministrative rules which substantively change the law, and not to a statute which incorporates a federal index to provide aid in making a ministerial determination.

Furthermore, we do not agree with Eastern’s contention that the statute is also constitutionally infirm because the Department of Revenue will utilize a consumer price index which is to be determined after the effective date of the act. In Gindl we upheld a statutory provision which required a computation based on the most recent publication of the Florida Price Level Index prepared by the Department of Administration. The statute was to take effect July 1, 1976. The Department of Education intended to base the distribution on a survey which would be started in October or November of 1976 and completed during the early part of 1977. In other words, the effect of the statute was to reach forward and allow distribution to be calculated on the most recent publication of the Florida Price Level Index, an index which was not in existence when the law became effective. We agree with the circuit court’s determination that the method of appropriation in chapter 83-3 is equivalent to the method approved in Gindl.

The final issue which Eastern has raised is whether chapter 83-3 unconstitutionally discriminates against interstate commerce since its tax credit provisions provide a direct commercial advantage to local agriculture and commercial fishing to the detriment of similar interstate activities. The relevant section of the law provides:

§ 212.92 Refunds.—
(e) Refund to farmers and fishermen.—
1. [Ajgricultural purposes means motor fuel or special fuel used in any tractor, vehicle, or other farm equipment which is used exclusively on a farm or for processing farm products on the farm and no part of which is used in any vehicle or equipment driven or operated upon the public highways of this state. This restriction shall not apply to the movement of farm vehicles or farm equipment between farms.
2. For the purposes of this paragraph, “commercial fishing purposes” shall be construed to mean motor fuel or special fuel used in the operation of boats, vessels, and equipment used exclusively for the taking of fish, crayfish, oysters, shrimp, and sponges from the salt and fresh waters under the jurisdiction of the state for resale to the public but shall in no way be construed to include fuel used for sports or pleasure fishing, no part of which is used in any vehicle or equipment driven or operated upon the highways of this state.
3. Any person who uses any motor fuel or special fuel for agricultural purposes or commercial fishing purposes on which the tax imposed by this part has been paid shall be entitled to a refund of said tax.

The Department of Revenue questions Eastern’s standing to challenge chapter 83-3’s full refund provisions, section 212.-92(l)(e), 2. & 3., since Eastern is “neither in the fishing or farming business and ... Eastern does not contend that farmers and/or fishermen are in direct or indirect competition with their airline enterprise.” Eastern does not compete with fishing or agriculture. We agree that Eastern does not have standing to raise the unconstitutionality of these full refund provisions. In State ex rel. Clarkson v. Philips, 70 Fla. 340, 70 So. 367 (1915), this Court held that the constitutionality of a provision of a statute cannot be tested by a party whose rights or duties are not affected by it, unless the provision is of such a nature that it renders invalid a provision of the statute that does affect the party’s rights or duties.

It is a fundamental principle that a statute, if constitutional in one part and unconstitutional in another part, may remain valid except for the unconstitutional portion. However, this is dependent upon the unconstitutional provision being severa-ble from the remainder of the statute. The severability of a statutory provision is determined by its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent. Cramp v. Board of Public Instruction, 137 So.2d 828 (Fla.1962).

Additionally, if the valid portion of the law would be rendered incomplete, or if severance would cause results unanticipated by the legislature, there can be no severance of the invalid parts; the entire law must be declared unconstitutional. Kass v. Lewin, 104 So.2d 572 (Fla.1958). This Court succinctly summarized the general rules regarding severability in Presbyterian Homes of Synod v. Wood, 297 So.2d 556 (Fla.1974), wherein the Court stated:

An unconstitutional portion of a general law may be deleted and the remainder allowed to stand if the unconstitutional provision can be logically separated from the remaining valid provisions, that is, if the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void; and the good and bad features are not inseparable and the Legislature would have passed one without the other; and an act complete in itself remains after the invalid provisions are stricken.

Id. at 559.

We believe that the legislature’s intent could still be accomplished if the full refund provisions relating to local commercial fishing and agriculture were to be eliminated and the remainder of the statute left intact. Therefore, we cannot say that these provisions, were we to declare them unconstitutional, are of such a nature that they would render invalid the portion of the statute that does affect Eastern’s rights. Eastern has no standing to raise this issue.

Accordingly, we affirm the order of the circuit court.

It is so ordered.

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