author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Willie James THOMAS v. STATE.
    3 Div. 774.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    John L. Capell, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty under an indictment that charged, inter alia, that he did the following:

“... [I]n the course of committing a theft of $15.00 in lawful currency ... of the value of $15.00, the property of Winston Sachar, used force against the person of ... Winston Sachar, with the intent to overcome his physical resistance or physical power of resistance, or threatened the imminent use of force against the person of the owner or any person present, Winston Sachar, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Willie Thomas alias Willie James Thomas was armed with a deadly weapon or dangerous instrument, to-wit: pistol, in violation of Section 13A-8-41 of the Code of Alabama....”

At a sentence hearing after due notice that the State would invoke the Habitual Felony Offenders Act and upon proof of defendant’s having been previously convicted of two felonies, the court fixed his punishment and sentenced him to imprisonment for life in accordance with Alabama Criminal Code, § 13A-5-9(b)(3).

Except for the contested issue as to the identity of the alleged robber, there is little difference, if any, between the parties on appeal as to the time, place and circumstances of the robbery. In the first part of the Statement of Facts in appellant’s brief, it is stated:

“On the night of September 15, 1982, at approximately 9:00 p.m., an individual attempted to rob the Cloverdale A & P in Montgomery, Alabama. The robber was a black male, wearing green clothing and with a stocking mask over his face. He was unsuccessful in robbing the A & P but took the wallet of the assistant manager of the store which contained a total of $14.
“Appellant, Willie James Thomas, is the owner and manager of Thomas Janitorial Service in Montgomery which has customers throughout Montgomery to whom it provides janitorial services. The customers have included the Eastdale Mall and the Cloverdale A & P. On the night of the robbery, at approximately 10:45 p.m., the Montgomery City Police entered the HCB Building in downtown Montgomery where appellant was waxing the floor, and arrested him for the alleged commission of the robbery....”

In the first part of appellee’s Statement of Facts is the following:

“Around ten minutes until 9:00 at night on September 15, 1982, as Winston Sac-har, the Assistant Manager of the Clo-verdale A & P, and Freddy Hamilton, a clerk, were closing the grocery store for the night, they saw a black male dressed in green clothes and wearing a stocking mask walk across the parking lot. The man was carrying a gun. The man ordered Sachar inside the store and took Hamilton to the office where the safe was located. The man’s mask fell off and he said, ‘Don’t look at me.’ Hamilton ran and the robber shot his pistol in Hamilton’s direction. The robber asked Sachar for his wallet as he left the store and Sachar gave him fifteen dollars.”

We consider the issues raised by appellant in the order presented in appellant’s brief.

I.

The first issue presented by appellant is thus captioned in his brief:

“The Admission of Appellant’s Confession Into Evidence Constitutes Reversible Error."

During the testimony of Investigator James Hamner of the Montgomery Police Department for the State on direct examination as to an oral statement made to the witness by the defendant, the following occurred:

“MR. MASSEY [Defendant’s attorney]: Your Honor, we would like at this point to take the witness on voir dire outside of the presence of the jury.
“THE COURT: Will the jury please step outside in the hall. It will be a little more comfortable.
“(Whereupon, the following was heard out of the presence of the jury:)
“VOIR DIRE EXAMINATION
“BY MR. MASSEY:
“Q. Detective Hamner, what time was it when Mr. Thomas signed the waiver of rights form?
“A. I believe it was around 11:25.
“Q. 11:25?
“A. Yes, sir.
“Q. And after he signed that form, did you personally check with Sonitrol [per-sonell of a building security system by that name]?
“A. As far as I know, my partner did.
“Q. Do you know whether that was done by telephone or whether that was done physically?
“A. I am sure it was done by telephone.
“A. Approximately at what time was it when you learned that according to Soni-trol Mr. Thomas had not checked in under his code number?
“A. I am not sure exactly what time it was. I think it was some time after 11:25.
“Q. Were, you wearing cowboy boots that night?
“A. I don’t remember. I could have been.
“Q. Did you threaten Mr. Thomas at that time?
“A. No, sir, I did not.
“Q. Did you use force against his person to make him give you an oral statement?
“A. No, sir, I did not.
“Q. Do you have any signed statement or any written statement that you prepared to have Mr. Thomas sign?
“A. No, sir.
“Q. So there was nothing ever typed up?
“A. No, sir.
“Q. For Mr. Thomas to sign?
“A. No, sir.
“Q. Do you deny kicking Mr. Thomas in the stomach and in the groin with your •cowboy boots?
“A. I never did, no, sir.
“Q. Were you a party or did you witness any other police officer with the Montgomery Police Department use force against Mr. Thomas?
“A. No, sir.
“Q. What time did Mr. Thomas make these alleged admissions to you? What time was it when he made those? .
“A. I don’t know exactly what time it was. It was after midnight.
“Q. Did you keep Mr. Thomas up all night that night of September 15, 1982?
“A. He was up there a while. I don’t know if it was all'night long.
“Q. Detective Hamner, didn’t you’all handcuff Mr. Thomas to a chair?
“A. Yes, sir.
“Q. And isn’t there some point during that interrogation there that night at the police station that Mr. Thomas had occasion to throw a chair at you?
“A. I don’t remember him throwing a chair, no, sir.
“Q. Didn’t you-all beat him with a telephone book?
“A. No, sir. I stated earlier that no one beat him or hit him or threatened him.
“Q. Didn’t you-all handcuff him to the chair?
“A. He had one arm handcuffed to the chair. That is the way we do all of our suspects.
“Q. Didn’t you-all pin him to the chair and tell him not to get back up?
“A. No, sir.
“Q. Isn’t it a fact that you kept him up? After getting him some time near midnight that night, you kept him up until about 5:00 that morning?
“A. Like I told you earlier, I don’t know how long it was. It was on into the morning, but I don’t think it was all night long.
“Q. How long into the morning was it, then, Detective Hamner, that you got this voluntary statement from Mr. Thomas?
“A. It was after 12:00. I would say it was probably 2:00.
“Q. So it took you from 12:00 then to about 3:00 or 3:30 to get a voluntary statement from Mr. Thomas? Why did it take you three hours after you had Mr. Thomas in custody to get a voluntary statement, Detective Hamner?
“A. From the time we started, after the rights form, we have some other forms we fill out with the information, name, address, and such as that.
“Q. What time did you pick Mr. Thomas up or was he picked up at the HBC?
“A. I don’t know. I did not go.
“Q. 11:25, 11:30?
“A. I read him his rights at 11:25.
“Q. So you agree with me that you talked with Mr. Thomas at least from 11:25 P.M. until some time around 3:00 or 3:30 A.M.; isn’t that correct?
“THE COURT: Okay. I agree with you. Bring the jury back in and we will tell them to go to lunch.”

The transcript further shows clearly that defendant signed the printed “rights form” acknowledging that he had been informed as to his Constitutional rights, including a right to an attorney, that he understood his rights. Thereafter, according to Officer Hamner, defendant made oral statements, which at first were in denial of any participation in or knowledge of the robbery and contained assertions that he was at the HCB Building at the time of the alleged robbery. Officer Hamner further testified that when defendant was confronted with information that the Police Department had checked with “Sonitrol” that operated the security system for the HCB Building and had learned that defendant “had not called in to Sonitrol that night” before the time of the robbery, the following occurred:

“A. From that point, we went through his story again and broke it down. He said that — with me and my partner there, he wanted to go ahead and tell us what really happened.
“Q.. Your partner being who?
“A. Investigator Brown.
“Q. Go ahead.
“A. He said that he did not want anything in writing. That he would just talk to us, and we told him okay. He said that a man named Leonard came by in a green car and picked him up. They went riding around, and Leonard gave him a gun and said let’s go rob the A & P. We need money. From that point, they went there. Willie said that he went in and approached them as they were coming out. He went inside and tried to hold the place up. He said that he went to try to get into the safe, and he could not. The manager would not let him in the safe. From that point, he said that he noticed the boy standing there, and that’s when he shot at him. Then he took the money that the manager had, which was a ten dollar bill and four ones and left. He gave Leonard the four dollars and he kept the ten dollar bill.
“Q. Did he tell you how many shots were fired?
“A. He just said he shot.
“Q. And he told you he had fourteen dollars from the robbery?
“A. Right.
“Q. Ten for him and four for Leonard?
“A. Yes.
“Q. Okay. Now, did he tell you anything about a wallet that was taken in the robbery?
“A. He further said that he took the wallet and threw it out of the vehicle somewhere on Carter Hill Road down on one of the side streets. I don’t know if he meant on Carter Hill Road or one of the side streets.
“Q. Do you know where this wallet was recovered?
“A. It was recovered somewhere in the ASU campus area.
“Q. Is that the same location where the defendant told you he had thrown the wallet?
“A. Thereabout, yes, sir.”

Appellant is correct in the assertion in his brief that an extrajudicial confession is pri-ma facie involuntary. However, he does not support his conclusion that the volun-tariness of his confession was not established by the evidence. None of the cases cited by him supports such a conclusion. He argues:

“Although not quite as severe as the facts in the case of Garrett v. State, supra, [Ala. 369 So.2d 833 (1979)], the facts in this case are quite similar. In Garrett the defendant, a mentally retarded juvenile was interrogated for approximately the same amount of time as appellant was questioned in the present case, was interrogated without counsel or any members of his family present and was given no food during the interrogation. The Alabama Supreme Court held that the totality of the circumstances indicated that the confession was involuntary and should not have been admitted into evidence, reversing and remanding the conviction. In the present case, the appellant was not a mentally retarded individual, but the manner in which the police treated him during his four to four and a half hour interrogation without the benefit of counsel and in the wee hours of the morning tend to establish that the confession was induced through coercive tactics. Since the prosecution offered absolutely no evidence to rebut the presumption that the confession was involuntary, it should not have been admitted into evidence.”

Garrett v. State is an extraordinarily valuable case on the question under consideration, but instead of it leading to a conclusion that the admission of the confession in the instant case was erroneous, it leads in the other direction when contrasted to the facts in the instant case, particularly in the following paragraph at 369 So.2d 836:

“In this case we have a juvenile defendant who is mentally retarded to the point that he was classified by his teachers as trainable, but not educable. That he can only be trained to take care of his daily, needs. According to the teachers, he could not remember his class schedule from day to day. Nor could he understand any abstract words. For example, if Garrett were told he had a right to remain silent, he would not have understood what the word ‘right’ meant and would probably would not have understood what the words ‘remain’ or ‘silent’ meant. Two teachers testified that they did not believe Garrett would have understood the Miranda warnings. One of them testified Garrett would have said he understood the warnings, regardless of whether he did or not, in order to please the interrogator.”

In none of the evidence in this case is there any allusion to any lack of intelligence or the like of the defendant, except in the actual commission of the alleged crime. The evidence strongly supports a conclusion that he was extra-ordinarily worldly-wise. This difference between the appellant and Garrett was a material factor in the inadmissibility of the confession in Garrett. Furthermore, we cannot agree with either of the last two sentences of appellant’s brief as quoted above. Appellant was not denied his right to counsel at the time of the confession; he was adequately and comprehensively advised of that right and of the consequences of a waiver thereof. Instead of there being “no evidence to rebut the presumption that the confession was involuntary,” we find no substance for any contention that it was not voluntarily, intelligently and understandably made. The trial court was not in error in overruling defendant’s motion to suppress the confession.

II.

This issue presented by appellant is thus stated in his brief:

“The Admission of Illegally Seized Items Into Evidence Constitutes Reversible Error.”

There were many references in the testimony to the clothing worn by the robber and to clothing in the van defendant was driving at the time of the robbery that was found in the van by the officers after defendant’s arrest. There were also references in the testimony to some clothing found in defendant’s home while defendant’s wife was at the home and while defendant was under arrest on the night of the robbery. A large part of such evidence was during the testimony of defendant’s wife as a witness for defendant. We do not find anything in the transcript to indicate an objection by defendant to any of the testimony relative to such clothing. This precludes us from a determination of this particular issue. West’s Alabama Digest, Criminal Law, Key Nos. 1030(1) and 1030(2).

III.

The third issue presented by appellant is stated in his brief as follows:

“Appellant’s Conviction Should be Reversed Due to Ineffective Assistance of Counsel.”

Notice of appeal of the judgment of conviction and sentence was given by the attorney who represented defendant on the trial of the ease but who does not represent him on appeal. The record does not show what attorney represented appellant between the date of appeal on March 15, 1983, and the date of appellant’s brief on September 15, 1983. The record does not show whether any motion for new trial was ever filed with the trial court or its clerk. It is recognized that ineffective assistance of counsel constitutes a valid ground for a motion for a new trial. Scoggins v. State, Ala.Cr.App., 398 So.2d 353 (1981), cert. denied, 398 So.2d 357. That it can constitute a valid basis for petition for writ of error coram nobis presentable to the trial court is also firmly established. Having in mind that a contention that defendant in a criminal case did not receive effective assistance of counsel should first be presented to the trial court that rendered the judgment of conviction and sentence, we should not endeavor to pass on such issue at this time. Not only is it not presentable for the first time on appeal, but also any indication by us at this time as to the merits of such a contention would be inappropriate by reason of its tendency to influence the trial court as to its action on any coram nobis petition presented to the trial court as to the judgment from which this appeal was taken.

IV.

Appellant urges that the “Verdict is Unsupported by and in Clear Contradiction with the Evidence.” In addition to the circumstantial evidence pointing to the defendant as one who participated in the robbery and the confession of the defendant, the testimony of Frederick D. Hamilton, an eyewitness to the robbery, identified defendant as follows:

“Q. Is this the same person that robbed you and Mr. Sachar?
“A. Yes.
“Q. All right. I will ask you to look around in the Courtroom and tell us whether or not you can identify that person here today?
“A. Yes.
“Q. Please point him out for the ladies and gentlemen of the jury.
“A. He is sitting to my left.
“MR. HAWTHORNE [Assistant District Attorney]: Let the Record reflect that the witness correctly identified the Defendant.”

A jury question was presented by the evidence as to the defendant’s guilt. The question as to the weight of the evidence was not raised by any motion for a new trial, and we decline to comment on any such question.

V.

By the fifth and last issue presented in appellant’s brief, it is contended that the application of the Habitual Felony Offenders Act was improper and that the sentence imposed thereunder constitutes cruel and unusual punishment. He divides this issue into two separate and independent parts. We consider both in the order presented by appellant in his brief. He says as to the first:

“At the sentencing hearing, Judge Hooper asked the prosecution to present him with certified copies of appellant’s prior convictions. It does not appear, however, that the prosecution gave him such copies. In fact, the prosecution was apparently confused as to the ease numbers of his prior convictions. The certified copies were not attached to the prosecution’s motion to invoke the Act and they are not now in the record. Accordingly, it was improper for the Circuit Court to have applied the Habitual Offender Act in this case, and the sentencing under the Act should be reversed.”

It is not as clear as it should be from the transcript of the proceeding quoted above, but, in the absence of an unequivocal contention to the contrary, we are persuaded that the following portion of the transcript discloses that there had been two previous felony convictions:

“THE COURT: Previous convictions?
“MR. MASSEY: Just two robberies, there, sir, that they had incorrect information on.
“THE COURT: Is that what that means down there? (indicating).
“MR. MASSEY: They had it incorrect on this motion.
“THE COURT: That would have been hard to figure. Okay. Do you have your certified copies?
“MR. TRAVIS: I’m thinking this is it but I’m not sure. It’s my understanding the two we are talking about are 3216 and 3120; two robberies.
“THE COURT: Okay.
“MR. MASSEY: He was in jail when that happened.
“THE COURT: I have before me from the 10th Judicial Circuit, Jefferson County, a robbery which shows that and it is certified properly that the defendant was found guilty of robbery or entered a guilty plea and was given ten years — no. He was found guilty by a jury. And, he was given ten years. Then, in a case of 69214. Okay. You got anything to say prior to sentencing?
“MR. MASSEY: No, sir, Your Honor. We would have something to say, but it’s with respect to this appeal.
“THE COURT: I understand. Based upon the finding of the jury of the defendant being guilty of robbery, and based upon these two previous felonies, I have no choice but to give you life in the penitentiary and the other news is, you can’t set a bond if it’s more than — if it’s that much of a sentence, I can’t set a bond by law....”

In the other part of the fifth issue presented in appellant’s brief, appellant contends that the life sentence imposed constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States. As to this contention, appellant relies exclusively upon Solem v. Helm, - U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), in which the majority opinion invalidated a penalty of life imprisonment without probability of parole that was imposed for the appellant’s seventh nonviolent felony. That case is inapposite to this case in which the conviction appealed from was for the violent crime of robbery, a Class A felony, and that each of the two previous convictions was for the same kind of a felony.

In our opinion, no issue presented on appeal reveals any error prejudicial to defendant and no obvious prejudicial error was committed by the trial court. 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.


source: Caselaw Access Project

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

license: Public Domain

text:
    Robert D. HEINEY, Appellant, v. STATE of Florida, Appellee.
    No. 56778.
    Supreme Court of Florida.
    Feb. 2, 1984.
    Rehearing Denied April 19, 1984.

      Michael E. Allen, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., and Lawrence A. Kaden, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Robert Heiney appeals his convictions for first-degree murder and robbery with a deadly weapon and his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. Having reviewed the record and considered the issues presented by Heiney, we find no reversible error and affirm his convictions and sentences.

On June 4, 1978, Heiney was residing in Houston, Texas, with Lawanna Wickline, Terry Phillips, and David Benson. On that date, after fighting with his girl friend, Lawanna Wickline, Heiney shot Terry Phillips in the abdomen. Wickline called the police. Upon learning that Phillips was in critical condition and that the police had been notified of the shooting, Heiney requested Benson to give him a ride out of town. Benson drove him to near the Texas state line. Heiney told Benson he was broke and that he planned to hitchhike to Florida. Benson gave Heiney $4.

Heiney was next seen in Jackson, Mississippi, at approximately 4 p.m. on June 5, 1978, in the company of the victim, Francis M. May, Jr. They went to the victim’s mother’s house where they remained for a brief period of time. They left with Heiney driving the victim’s car. The victim’s mother and-his wife later positively identified Heiney as having been with the victim the day prior to his death. They both testified at trial.

On June 6, 1978, the victim’s body was found a quarter of a mile south of the I — 10 entrance on highway 189 near Holt, Florida. His head had been savagely beaten. A claw hammer was found just west of the body. The victim’s wounds were consistent with a beating with the claw hammer. The medical examiner testified that the death was recent, probably occurring somewhere between 5 and 7 a.m., June 6. There were at least seven blows to the head and perhaps nine. There were also defensive wounds on the back side of the victim’s hands and wrists. At the time of his death, the victim had a blood alcohol content of .28 percent. He died as a result of brain injury due to severe blows delivered to both sides of his skull. The victim’s pant pocket had been turned inside out, and he had no identification on him.

On June 8, 1978, the investigating officer gave information on the victim’s vehicle to the National Crime Information Center in Washington.

In the meantime, Heiney was driving back and forth across the country using the victim’s credit card to buy gasoline, food, and lodging. On June 12, 1978, still driving the victim’s car, he went to the Nevada National Bank in Reno, Nevada, and attempted to get a $75 cash advance by using the victim’s Mastercharge card. When the teller at the bank began checking for approval of the advance, Heiney left, leaving the credit card behind. The teller followed Heiney and got the license tag number from the car he was driving and reported it.

Then on June 26, 1978, an Ohio state trooper saw Heiney driving the victim’s car on the interstate in Ohio. He arrested Heiney for unauthorized use of an automobile (auto theft) and impounded the car. When Heiney was arrested, he had in his possession the victim’s personal property including a ring the victim’s wife had given him when they were married. Sheriff’s deputies from Okaloosa County went to Ohio and, pursuant to a search warrant, searched the car. They found the victim’s checkbook in the car’s glove compartment, another credit card belonging to the victim, other papers belonging to the victim, and bloodstains matching the victim’s blood type in the car. The victim’s wallet was found inside Heiney’s suitcase which was in the trunk of the car.

Mastercharge slips made on the victim’s credit card signed after the victim’s death came in from all over the country. A handwriting expert testified that the signatures on some of the credit card receipts from June 6 to June 26 could be positively identified as being forged by Heiney.

Heiney was tried and convicted of murder in the first degree and robbery with a deadly weapon. At the close of the state’s case, he moved for judgment of acquittal as to both counts of the indictment. He contended that the circumstantial evidence introduced was insufficient to support verdicts of guilty for either of the crimes charged. The trial court denied the motion and submitted the case to the jury. This issue was raised again in a motion for new trial, which the trial court also denied.

During the penalty phase of the trial, the jury recommended that a life sentence be imposed. The trial court, finding three aggravating and no mitigating circumstances, imposed the death penalty.

Heiney initially challenges his convictions on the basis that the trial court erred in denying his motions for judgment of acquittal and for new trial. He argues that the circumstantial evidence was not legally sufficient to support the jury verdicts in that the evidence does not exclude the hypothesis of innocence that someone else killed the victim and that Heiney lawfully gained possession of the victim’s property prior to his death.

When a case is based on circumstantial evidence, a special standard of sufficiency of the evidence applies. Jaramillo v. State, 417 So.2d 257 (Fla.1982). This standard is: “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977); Jaramillo v. State; McArthur v. Nourse, 369 So.2d 578 (Fla.1979). The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse a judgment based upon a verdict returned by the jury. Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983). In the present case, we find the evidence supports the jury’s verdict that Heiney was guilty of first-degree murder and robbery. The victim was with Heiney just before he was murdered. His pant pocket where he normally carried his wallet was turned inside out. His wallet, as well as his personal belongings and his car were in Heiney’s possession at the time of Heiney’s arrest. Blood of the victim’s blood type was found on the front seat covering and on a portion of the rear seat cover. The victim’s body was completely stripped of everything of value, and Heiney was found in possession of everything of value which the victim had with him. We hold that the trial court properly denied Heiney’s motions for judgment of acquittal and for new trial.

Heiney next argues that he was deprived of a fair trial when the court allowed the state to present the testimony of Lawanna Wickline, Terry Phillips, and David Benson who testified that Heiney argued with Wickline, argued with Phillips and subsequently shot Phillips in the abdomen with a .32 calibre pistol and that Heiney, upon learning of Phillips’ critical condition and that the authorities wanted to talk to him, asked Benson to drive him out of town and to give him money since he was broke. Benson also testified that Heiney told him he was going to hitchhike to Florida.

Heiney contends that the conduct shown by the testimony was unrelated to the crimes he was accused of committing and that this evidence tends to prove only propensity and bad character. The state responds that the evidence of the shooting in Texas was relevant to show motive for the subsequent crimes and to provide the “entire context of the crimes charged.”

We agree with the state that this testimony was properly allowed into evidence. The test for admissibility of evidence of collateral crimes is relevant. In Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981), we described this test of relevancy and said:

In Williams v. State, [110 So.2d 654 (Fla.1959)], we announced a broad rule of admissibility based upon relevancy. Necessity has never been established by this Court as an essential requisite to admissibility. In Williams, we declared that any fact relevant to prove a fact in issue is admissible into evidence even though it points to a separate crime unless its admissibility is precluded by a specific rule of exclusion. We further held that evidence of collateral offenses is inadmissible if its sole relevancy is to establish bad character or propensity of the accused. We emphasized that the question of relevancy of this type of evidence should be cautiously scrutinized before it is determined to be admissible, but that nonetheless relevancy is the test. Evidence of other crimes is relevant if it casts light on the character of the crime for which the accused is being prosecuted. For example, this evidence is relevant when it shows either motive, intent, absence of mistake, common scheme or plan, identity, or a system or general pattern of criminality. Subsequently, in Williams v. State, 117 So.2d 473 (Fla.1960), we reaffirmed the rule of admissibility enunciated in our first Williams case but reversed a defendant’s conviction because the State had made a collateral offense a feature instead of an incident of the trial.... Thereafter, in Wilson v. State, 330 So.2d 457 (Fla.1976), we held that the introduction of six hundred pages of trial transcript pointing to separate crimes committed by the defendant was not reversible error because this evidence was relevant to establish a pattern of conduct similar to the conduct for which defendant was being prosecuted.
In Ashley v. State, 265 So.2d 685 (Fla.1972), defendant sought reversal of a murder conviction because the trial court admitted evidence of four other murders that he had committed shortly after the murder for which he was tried. We held that the evidence objected to was admissible because it was relevant to the issues of motive, intent, identity, and mo-dus operandi of defendant. We reached this conclusion even though this evidence may not have been necessary to the State’s case since Ashley’s confession was in evidence as was the testimony of an eyewitness to the murder. We emphasized: “So long as evidence of other crimes is relevant for any purpose the fact that it is prejudicial does not make it inadmissible. All evidence that points to a defendant’s commission of a crime is prejudicial. The true test is relevancy.” 265 So.2d at 694. See also Antone v. State, 382 So.2d 1205 (Fla.1980); Brown v. State, 381 So.2d 690 (Fla.1980); Alford v. State, 307 So.2d 433 (Fla.1975).
In our recent decision of Smith v. State, 365 So.2d 704 (Fla.1978), relying upon Ashley v. State, we recited that among the other purposes for which a collateral crime may be admitted under Williams is establishment of the entire context out of which the criminal action occurred.

397 So.2d at 279-80.

Applying this test, we find that the collateral crime evidence was relevant and admissible. It was relevant to show motive for the subsequent crimes and to establish the “entire context” of the crimes charged. This evidence is relevant to show that Hei-ney’s desire to avoid apprehension for the shooting in Texas motivated him to commit robbery and murder in Florida so that he could obtain money and a car in order to continue his flight from Texas. He had no transportation, no money, and was running from a possible murder. He was desperate. Because this evidence is clearly relevant and admissible, Heiney’s contention that its introduction constitutes reversible error is without merit.

A closer question is presented by testimony relating to Heiney’s lifestyle and his relationship with Lawanna Wickline. Any error which may have occurred in admitting this particular testimony, however, was harmless.

Heiney also argues that the trial court erred in not denying his motion for mistrial which was based on his allegation that some of the jurors may have momentarily seen him in chains on two occasions while he was being transported to and from the courtroom. His counsel was asked by the court whether he wanted to question the jury as to whether they had seen Hei-ney in shackles outside the courtroom, and he responded in the negative. The trial court denied Heiney’s motion and stated that if any of the jurors even saw Heiney, it was only for a fleeting moment in the corridor. We rejected a similar contention in Neary v. State, 384 So.2d 881 (Fla.1980), wherein defendant on appeal argued that he was prejudiced because some jurors inadvertently saw him being brought to the courtroom in handcuffs. We recognized the holding in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), that an individual accused of a crime cannot be forced over his objection to stand trial in prison garb, but we held: “This appellant, however, was not forced to stand trial in prison clothes or in handcuffs, and we find that the inadvertent sight of the appellant in handcuffs was not so prejudicial that it required a mistrial.” 384 So.2d at 885. We likewise find that in the present case the inadvertent sight of Hei-ney, if in fact he was seen by some of the jurors, was not so prejudicial as to require a mistrial.

We find no merit to Heiney’s contention that the trial court reversibly erred in denying his oral motion to recuse the judge on the basis of alleged remarks made by him during a pretrial hearing. Heiney alleged that the trial judge had threatened Heiney in such a manner as to cause him to believe the judge was prejudiced against him. This pretrial hearing was reported, but no such prejudicial comments appear in the record. Heiney suggests that these comments were “off the record.”

Florida Rule of Criminal Procedure 3.230 clearly sets out the procedure which a party must follow when seeking to disqualify a judge assigned to try the case on the grounds that the judge is prejudiced against the movant. This rule provides:

(b) Every motion to disqualify shall be in writing and be accompanied by two or more affidavits setting forth facts relied upon to show the grounds for disqualification, and a certificate of counsel of record that the motion is made in good faith.
(c) A motion to disqualify a judge shall be filed no less than 10 days before the time the case is called for trial unless good cause is shown for failure to so file within such time.

Heiney’s motion was not in writing and was not accompanied by two or more affidavits setting forth the facts relied upon to show a basis for disqualification, nor did his counsel file a certificate that the motion was made in good faith. It was therefore legally insufficient. Moreover, reviewing the denial of this oral motion for disqualification in light of the entire record, we find no reversible error.

We have considered Heiney’s challenges to two of the jury instructions in the context of all the jury instructions given and in light of the record before us and conclude that they do not amount to reversible error.

Although Heiney was indicted for premeditated and felony murder, he argues that it is likely that the jury based its verdict on the felony murder rationale. Therefore, relying on State v. Pinder, 375 So.2d 836 (Fla.1979), he contends his conviction for robbery should be reversed on the basis that to convict him of both crimes would violate the double jeopardy clause of the United States Constitution as applied to the states through the fourteenth amendment. Pinder was receded from in State v. Hegstrom, 401 So.2d 1343 (Fla.1981), in light of the later United States Supreme Court decisions of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In Hegstrom, we held that where a defendant is convicted of felony murder, he may be convicted but not sentenced for the underlying felony. If there is sufficient evidence to support a finding by the jury of premeditated murder, however, this previously stated principle announced in Hegstrom does not apply. McCampbell v. State, 421 So.2d 1072 (Fla.1982); Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). In the present case, Heiney was charged with premeditated murder and felony murder. There is sufficient evidence of premeditation. There were at least seven blows to the victim’s head inflicted by a claw hammer. The medical examiner testified that any three of the wounds would have been sufficient to render the victim unconscious. Three blows would have been sufficient for Heiney to effect his objective of robbery, if this had been his only objective. But he continued to beat the victim on both sides of his head until his brain was pulped, his ear was lacerated and only hanging on by a fragment, his skull was severely fractured, and his eye was completely exploded. Premeditation may be established by circumstantial evidence. Evidence from which premeditation may be inferred include the manner in which the homicide was committed and the nature and manner of the wounds. McKennon v. State, 403 So.2d 389 (Fla.1981); Welty v. State, 402 So.2d 1159 (Fla.1981). Thus, because the jury need not have convicted Heiney of robbery in order to support the murder conviction, we affirm the conviction and sentence for robbery.

In addition to reviewing the record in light of the errors asserted by Heiney, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that no new trial is required. Accordingly, we affirm his convictions.

Heiney also challenges his sentence of death imposed by the trial court after the jury had recommended that a life sentence be imposed.

As aggravating circumstances, the trial court found that Heiney was under sentence of imprisonment, that the murder was committed while Heiney was engaged in the commission of a robbery, and that the murder was heinous, atrocious, or cruel. The court found that there were no mitigating factors to overcome the aggravating factors.

We have previously rejected the argument now being made by Heiney that for the judge to reject a jury’s recommendation of life constitutes double jeopardy. Phippen v. State, 389 So.2d 991 (Fla.1980); Douglas v. State, 373 So.2d 895 (Fla.1979).

We have also previously rejected the argument that being on parole is not equivalent to being “under sentence of imprisonment.” Martin v. State, 420 So.2d 583 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983); McCampbell v. State.

We find no merit in Heiney’s assertion that the trial court erred in finding the aggravating circumstance that the bludgeoning murder of the victim in this case was heinous, atrocious, or cruel. The record amply supports this finding. Seven severe hammer blows were inflicted on the victim’s head. The medical examiner testified that the injuries to the victim’s hands were probably defense wounds caused by the victim’s holding his hands up to try to protect himself. See Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977).

We also find no merit to Heiney’s assertion that the trial judge considered the Texas shooting of Phillips by Heiney as a nonstatutory aggravating factor. The trial judge expressly stated that he did not consider this as an aggravating circumstance. Here there are three valid aggravating factors and no mitigating factors. We can conclude on the basis of the record before us that, even if we were to find that the court improperly considered this non-statutory aggravating factor, elimination of this factor from the weighing process could not possibly affect the trial court’s decision to impose the sentence of death.

We hold that the trial court properly found three aggravating and no mitigating factors. Reviewing this case in light of other cases in which the death sentence has been imposed, we conclude that the sentence of death in this case is not too great a punishment. Applying the test announced in Tedder v. State, 322 So.2d 908 (Fla.1975), we also conclude that the facts in this case suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ.

Accordingly, finding no reversible error, we affirm the convictions and sentences.

It is so ordered.

CONVICTION: ALDERMAN, C.J., and ADKINS, OVERTON and EHRLICH, JJ., concur.

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

McDONALD, J., dissents with an opinion.

SENTENCE: ALDERMAN, C.J./ and ADKINS, OVERTON and EHRLICH, JJ., concur.

McDONALD, J., concurs with an opinion.

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

BOYD, Justice,

dissenting.

I must dissent to the majority opinion. It was error to allow the presentation of evidence showing that appellant used to beat his girlfriend regularly and had lived on her earnings as a prostitute. It was also error to admit evidence that appellant shot a man in Texas four days prior to the murder of which he was accused in the present case. Evidence of these matters was irrelevant because it had no logical bearing on any of the material issues of the case. Even giving the state the maximum benefit of any slight doubt (of which there is actually none) on the issue of relevancy, I would still find the evidence inadmissible on the ground that its improper prejudicial impact far outweighed any arguable probative value it may have had on a material issue. When a court allows the admission of irrelevant evidence of serious unrelated criminal behavior on the part of the accused, tending to depict him as a person of bad character or having a propensity to commit crimes, such evidence must be presumed to have had impact on the jury to the detriment and improper prejudice of the accused. Straight v. State, 397 So.2d 903, 908 (Fla.) cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). I therefore conclude that appellant’s conviction should be reversed and the case remanded for a new trial.

Any evidence that is relevant to some issue of material fact, unless barred by some specific rule of exclusion, is usually admissible. McCormick, Evidence § 184 (2d ed. 1972); 1 Wharton’s Criminal Evidence § 151 (13th ed. 1972). Relevancy is that quality of evidence that gives it some logical bearing upon — and some probative value in deciding — an issue of material fact. McCormick, Evidence § 185 (2d ed. 1972). Evidence that is not relevant is inadmissible and should be excluded upon timely objection.

One species of irrelevant evidence that has given rise to much judicial concern is evidence of criminal conduct or activity of a criminal nature other than that which is charged in the indictment or information. Evidence of crimes and wrongful acts of the accused that are separate and independent from the crime charged and which have no connection therewith is, like other irrelevant evidence, inadmissible. Winstead v. State, 91 So.2d 809 (Fla.1956); Wallace v. State, 41 Fla. 547, 26 So. 713 (1899). Such evidence of collateral crime on the part of the accused may “prompt a more ready belief by the jury that he might have committed the one with which he is charged, thereby predisposing the mind of the juror to believe the prisoner guilty.” Nickels v. State, 90 Fla. 659, 685, 106 So. 479, 488 (1925).

Of course, it may well be that the evidence which shows some criminal conduct other than that for which the accused is on trial is also relevant to an issue of material fact. If so, then the evidence is admissible even though it points to the commission of a separate crime. Ashley v. State, 265 So.2d 685 (Fla.1972); State v. Norris, 168 So.2d 541 (Fla.1964); Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The judicial concern referred to above, however, is that the collateral crime evidence will serve only to show criminal propensity or bad character with resulting improper prejudice to the accused. Therefore Florida law seeks to assure the relevancy of such evidence by requiring that it fit into one of several judicially recognized eviden-tiary categories, such as motive, intent, opportunity, common scheme or plan, identity, absence of mistake, or the like. See, e.g., Dean v. State, 277 So.2d 13 (Fla.1973); Hawkins v. State, 206 So.2d 5 (Fla. 1968); Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The list of categories is not absolute or all-inclusive since its purpose is to help courts determine whether the evidence has some logical bearing on a factual issue.

The state argues and the majority finds that the events in Texas were part of the res gestae of the crime and were admissible to show the “entire context” of the criminal episode, as that concept was used in Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981), and Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). Both cases are distinguishable. Smith was a first-degree murder case, and the collateral crime there was also a murder. The collateral murder occurred on the same night as the murder charged. The victim of the collateral murder had been one of the perpetrators of the murder charged. He was killed when the murderers argued over the initial victim’s property. Evidence of the collateral murder placed the accused at the scene of the crime charged and placed him in a car linked to the scene of the crime charged. The later murder shed light on the motive for the earlier murder. In view of all these factors, the Court could conclude that the two crimes were linked by an “unbroken chain of circumstances” and that the collateral crime evidence was “relevant to illustrate the criminal context in which the first murder occurred.” Id. at 707. Ruffin is similarly distinguishable. Smith and Ruffin do not stand for the proposition that any matter in chronological proximity to the crime charged is relevant and admissible. To be part of the “entire context,” evidence must be linked to the issues by logical relationship. Ashley v. State, 265 So.2d 685 (Fla.1972); Suarez v. State, 95 Fla. 42, 115 So. 519 (1928).

In the present case, there was no logical connection between the shooting and other events in Texas and the crimes of which appellant was accused. Unlike Smith, here the victims of the collateral crimes were not involved with the crimes charged. The collateral crimes did not occur at the same time or place, or involve the same group of people as the crimes charged. Therefore the evidence pertaining to the criminal events in Texas were not admissible as part of the “entire context” of the crimes for which appellant was on trial.

The state argues and the majority finds that the evidence of the shooting in Texas was relevant to show appellant’s motive for committing the murder in Florida: to acquire money, credit cards, and a car as means to escape apprehension. The state relies on State v. Statewright, 300 So.2d 674 (Fla.1974). There the Court held that evidence that the defendant had committed a homosexual act five years before the crime charged was relevant to show a motive for the murder. The theory of the prosecution was that the defendant killed the victim to prevent him from revealing the earlier homosexual relationship. Therefore the prior act was held to be relevant to the question of the motive for the killing. In a number of cases, evidence of prior criminality has been held relevant to the question of motive for the murder of a police officer. See, e.g., Johnson v. State, 130 So.2d 599 (Fla.1961); Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960); McVeigh v. State, 73 So.2d 694 (Fla.), appeal dismissed, 348 U.S. 885, 75 S.Ct. 210, 99 L.Ed. 696 (1954). In these cases, evidence of the prior crime was relevant to show the reason for the defendant’s wish to avoid encountering the police officer and being apprehended. The present case is distinguishable as far as motive is concerned. Here there was no evidence that the victim knew about the shooting in Texas, nor was he in a position of authority to arrest appellant on suspicion of it.

I therefore conclude that the testimony about the shooting incident in Texas, appellant’s other violent acts there, and his relationship with his girlfriend were not relevant to any material issue of fact in his trial for the murder and robbery of Francis May in Florida. The admission of the evidence over defense counsel’s objection was error. Since the only function the evidence could have served was to indicate that appellant was of bad character and had a propensity to commit crime, I would find that the error was prejudicial and deprived appellant of a fair trial.

Even assuming that appellant’s prior criminal conduct was relevant to this case, I do not believe it should have been admitted because any probative value it may have had was far outweighed by its prejudicial impact. Even when evidence of collateral criminal conduct has some relevancy to a material fact in issue, it is error to allow an improper prejudicial effect to outweigh the limited probative value of the evidence. Smith v. State, 365 So.2d 704, 708 (Fla.1978) (Sundberg, J., dissenting), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Williams v. State, 117 So.2d 473 (Fla.1960). This is merely an application of the general rule that where improper prejudice outweighs probative value, even relevant evidence should be excluded. § 90.403, Fla.Stat. (1979); 1 Wharton's Criminal Evidence § 151 (13th ed. 1972).

In this case the prosecution relied heavily upon the prejudicial impact of the testimony about appellant’s beating his girlfriend and living on the money she earned as a prostitute. It relied even more heavily on the evidence of his shooting another person in Texas and fleeing from that state. The prosecution emphasized these crimes in its closing arguments to the jury. Since the relevancy of these crimes to appellant’s motive for committing the murder is purely speculative, and the prejudicial impact extremely great, the evidence should not have been admitted.

I note that the apparent facts of the robbery and murder are such that the capital felony of murder could be deemed to warrant the death penalty. However, because appellant did not receive a fair trial on the question of his guilt or innocence, the question of the appropriate penalty is purely a hypothetical one upon which I need not express an opinion.

I dissent to the affirmance of appellant’s conviction and would order a new trial.

McDONALD, J., concurs.

McDONALD, Justice,

dissenting in part, concurring in part.

I dissent for the sole reason that it was prejudicial error to allow into evidence testimony surrounding the Texas shooting of Phillips and of Heiney’s relationship with Wickline. I see no relevance in this testimony at all, and it was clearly prejudicial. The majority opinion is grasping at suppositions to make the testimony relevant. If relevant, this relevance is so minute that it must yield to the prejudice caused by this evidence. I would grant a new trial. On all other issues, including the imposition of the death penalty, I concur.


author: ADKINS, Justice.

text:
    Leslie PORTEE, Petitioner, v. STATE of Florida, Respondent.
    No. 60190.
    Supreme Court of Florida.
    March 15, 1984.
    Jerry Hill, Public Defender and Geoffrey A. Foster, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for petitioner.
    Jim Smith, Atty. Gen., and Michael A. Palecki and Theda James Davis, Asst. At-tys. Gen., Tampa, for respondent.
   ADKINS, Justice.

This cause is before the Court on petition for review of a decision of the district court of appeal on the ground that it expressly and directly conflicts with a decision of another district court of appeal. The decision below, Portee v. State, 392 So.2d 314 (Fla. 2d DCA 1980), conflicts with Williams v. State, 377 So.2d 755 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Williams has been disapproved. Smith v. State, 430 So.2d 448 (Fla.1983).

Petitioner was charged with and convicted of both possession and sale of marijuana and was given separate sentences for the two offenses. On appeal he argued that under the “single-transaction rule” he could only be sentenced for the more serious of the two offenses. The district court disagreed, holding that under section 775.-021(4), Florida Statutes (1977), separate convictions and sentences were proper since possession and sale are discrete offenses. This subsection reads as follows:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

The decision of the district court is correct. In Borges v. State, 415 So.2d 1265 (Fla.1982), we held that when more than one offense may be charged and proven based on a single episode, transaction, or course of conduct, separate convictions and sentences are proper. The statute excludes lesser included offenses, thus indicating an intent not to allow multiple punishments when there is but one offense.

If two statutory offenses have the exact, same essential constituent elements, or when one statutory offense includes all of the elements of the other, those two offenses are constitutionally “the same offense” and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events. If it is established that an offense is a lesser included offense of a greater offense also charged, the double jeopardy clause proscribes multiple convictions and sentences for both the greater and lesser included offenses. Bell v. State, 437 So.2d 1057 (Fla.1983) (holding that sale and possession of controlled substances were lesser included offenses of trafficking in illegal drugs).

In the case sub judice, one subsection of the statute proscribed sale or possession with intent to sell. Another subsection proscribes the possession of more than five grams. The information in count one charged only the sale. Count two alleged defendant possessed more than five grams of the substance. Since possession was not charged in count one, count two is not a lesser included offense. Defendant was properly convicted and sentenced on both counts. Smith v. State.

The decision of the district court of appeal is approved.

It is so ordered.

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


author: ADKINS, Justice. ALDERMAN, Chief Justice, BOYD, Justice,

text:
    Dean D. BURGESS, Petitioner, v. Foster F. BURGESS, Respondent.
    No. 62507.
    Supreme Court of Florida.
    March 15, 1984.

      J. LaDon Dewrell and F. Lloyd Blue, Jr., of Dewrell, Blue & Brannon, Fort Walton Beach, for petitioner.
    Henry Clay Mitchell, Jr., of Levin, War-field, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for respondent.
   ADKINS, Justice.

The First District Court of Appeal has certified the following question as being a matter of great public importance.

Does the doctrine of interspousal tort immunity bar a civil cause of action for money damages brought by one spouse against the other spouse, under Section 934.10, Florida Statutes (1979)?

Burgess v. Burgess, 417 So.2d 1173, 1175 (Fla. 1st DCA 1982). Our jurisdiction vests under article V, section 3(b)(4), Florida Constitution.

This Court has specifically stated that any legislative enactment which would allow interspousal tort actions should be “positive and unambiguous.” Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). The sole question involved in this case is whether section 934.-10, Florida Statutes (1979), permits, with requisite clarity, interspousal tort litigation. For reasons discussed below we find that the language of section 934.10 is both “positive and unambiguous” and provides an aggrieved party with an unconditional civil cause of action, regardless of marital status. The certified question is answered in the negative.

The facts of the case are undisputed. In 1979, respondent, Mr. Burgess, filed his complaint for dissolution of marriage in which he stated that the marriage had been “irretrievably broken.” While he and Mrs. Burgess were separated, pending final dissolution, Mr. Burgess stole into the family home, climbed into the attic, and spliced an electronic device onto the telephone lines in an effort to intercept and record Mrs. Burgess’ telephone conversations. He then played these recordings to neighbors and used them for purposes of gaming an advantage for himself in the dissolution proceedings.

Mrs. Burgess, petitioner, filed a civil action seeking monetary damages under section 934.10 based on Mr. Burgess’ willful intercept and full disclosure of her telephone conversations. The trial judge dismissed Mrs. Burgess’ complaint as being precluded by the doctrine of interspousal tort immunity as announced in Raisen. The First District Court of Appeal, with stated reservations, reluctantly affirmed and then certified the aforementioned question to this Court. 417 So.2d 1174-75.

Chapter 934, which deals with the security of communications, was enacted by the Florida Legislature in order to assure personal rights of privacy in the area of oral and wire communications. The sweeping scope of this chapter is marked by the clear and comprehensive language of section 934.03(1), Florida Statutes (1979), which states in pertinent part:

(1) Except as otherwise specifically provided in this chapter, any person who:
(a) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; ... shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) There is little doubt that Mr. Burgess violated chapter 934 when he entered the home, secretly attached the electronic surveillance device to the telephone, then intercepted conversations between Mrs. Burgess and certain third parties. The protection of personal privacy rights within the confines of marriage is a principal area of concern under chapter 934. See Markham v. Markham, 272 So.2d 813 (Fla.1973) (Court specifically held that chapter 934 prohibited interspousal wiretaps within the family home). Respondent does not contest his criminal liability under the statute. Rather, he argues that chapter 934 does not abrogate the doctrine of interspousal tort immunity and, while criminal sanctions may be appropriate under the statute, civil sanctions are not. Given the explicit language of the statute, we cannot agree.

In chapter 934, the Florida Legislature evidenced its overriding concern for the protection of personal privacy by imposing both civil and criminal sanctions upon those in violation of the statute. § 934.10, Fla. Stat. (1979). The language of section 934.-10 is straightforward and provides in relevant part:

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, such communications and shall be entitled to recover from any such person:
(1) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(2) Punitive damages; and
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.

(Emphasis added.). The message here is plain — any person falling victim to an unlawful wire intercept shall have a civil cause of action against any person so violating chapter 934. The word “person”, as used in section 934.10, is defined by statute as follows:

(5) “Person” means any employee or agent of the state or political subdivision thereof and any individual, partnership, association, joint stock company, trust, or corporation; ...

§ 934.02, Fla.Stat. (1979). This definition draws no distinction between married and unmarried individuals. Consequently, all victims of unlawful wire intercepts are entitled to compensation without reference to their marital status.

The problem of unauthorized interception of wire communications is widespread and often surfaces in and around dissolution proceedings. As evidenced in the instant case, the general scenario involves one spouse intercepting the communications of the other in order to gain advantage in the divorce agreement. This conduct runs contrary to fundamental concepts of privacy and is specifically prohibited under chapter 934. The teeth of this prohibition are located in the criminal and civil sanctions provided by statute. §§ 934.03(l)(a) and 934.10. To bar the victimized spouse from civil remedy would undermine the legislature’s purpose in upholding one’s constitutional right to privacy. In sum, the remedy afforded by section 934.10 should not be circumscribed by the doctrine of interspousal tort immunity.

Our determination that this is a legislatively established exception to the doctrine of interspousal tort immunity is supported by strong policy grounds as well as by the literal statutory construction. The arguments generally furthered in support of interspousal tort immunity are not applicable where illegal electronic surveillance is an issue. See Hill v. Hill, 415 So.2d 20 (Fla.1982); Raisen (the Court, in both cases, found interspousal tort immunity primarily concerned with the preservation of marital harmony). The policy of marital harmony is not furthered by permitting one covertly to invade the privacy of his or her spouse without fear of civil reprisal. It is undisputed that spying and prying by one spouse into the private telephone conversations of the other does not contribute to domestic tranquility or assist in preserving the marital estate. See Markham v. Markham, 265 So.2d 59, 62 (Fla. 1st DCA 1972), aff'd, 272 So.2d 813 (Fla.1973). Eavesdropping, by nature, undermines the faith and trust upon which the institution of marriage is founded. A rule of law which leaves such repugnant behavior unsanctioned can hardly be said to preserve the marital unit. Moreover, the doctrine of interspousal tort immunity, if applied in the instant case, would result in an inequitable operation of this statute. The following example is illustrative. A suspected criminal is subjected to a wire intercept conducted by certain members of a police department. The wiretap is unauthorized and violates chapter 934. Those persons involved in the illegal surveillance are guilty of a third-degree felony. § 934.03(l)(a). In addition, the suspected criminal — as victim to an illegal wiretap — is entitled to receive from those persons actual damages, punitive damages, and reasonable attorney’s fees. § 934.10. By comparison, both the trial court and the First District Court denied Mrs. Burgess, also a victim to an illegal wire intercept, recovery by reason of her marriage to the perpetrator. Under these holdings the victimized spouse is given less protection under chapter 934 than that afforded the suspected criminal. This result is incompatible with chapter 934’s strong purpose of assuring personal rights of privacy within the institution of marriage.

Accordingly, we find that the doctrine of interspousal tort immunity does not bar a civil cause of action for money damages brought by one spouse against the other under section 934.10. The certified question is answered in the negative and the decision of the First District Court is quashed.

It is so ordered.

OVERTON, McDonald and EHRLICH, JJ., concur.

ALDERMAN, C.J., dissents with an opinion, in which BOYD, J., concurs.

BOYD, J., dissents with an opinion.

ALDERMAN, Chief Justice,

dissenting.

I do not believe that the legislature, in enacting section 934.10, Florida Statutes (1979), intended to create an exception to the doctrine of interspousal immunity. A reading of the statute certainly does not reveal such an intent. In order to create such an exception to the rule of spousal immunity, the language of the statute should contain positive and unambiguous language revealing this intent. I disagree with the majority that section 934.10 positively and unambiguously provides an aggrieved party with an unconditional civil cause of action regardless of marital status.

I believe that the majority has misread section 934.10 to allow this limited exception to the doctrine of interspousal immunity, which exception allows one spouse, falling victim to an unlawful wire intercept, to have a civil cause of action against the other spouse who violated chapter 934.

I would approve the result of the decision of the First District and answer the certified question in the affirmative.

BOYD, J., concurs.

BOYD, Justice,

dissenting.

I dissent to the majority opinion partially abrogating the common-law doctrine of in-terspousal immunity. The majority attempts to justify its action as a legislatively authorized exception to the doctrine, but the attempt utterly fails. When the legislature enacted this statute the members knew that under the doctrine of interspousal immunity husbands and wives were not liable to each other for tort claims. If the legislature had intended for this statute to constitute an exception to the interspousal immunity rule they should have said so.

The doctrine of interspousal immunity is based in the common-law understanding of the legal unity of husband and wife. The rule of immunity is all-encompassing. Our legislature has the undisputed authority to change this fundamental principle of law, but such a change is not to be lightly inferred. The majority opinion grounds its abrogation of the doctrine not on any positive and unambiguous declaration of the legislature, but rather on the majority’s own notions of what public policy should provide in this area.

The majority says that Mr. Burgess used the recordings of Mrs. Burgess’s telephone conversations to his advantage in the dissolution proceedings, but does not say how this was accomplished. It is difficult to conceive of how this might have been done, since telephonic communications intercepted in violation of chapter 934, and the fruits thereof, are clearly inadmissible in evidence in all judicial proceedings. § 934.-06, Fla.Stat. (1979).

Although there is no remedy inuring specifically to the benefit of Mrs. Burgess for Mr. Burgess’s wrongful and criminal conduct, there is a remedy which the state could have invoked on behalf of society. For as the majority opinion points out, Mr. Burgess was subject to criminal prosecution for his conduct. Furthermore, if, as is often the case in dissolution proceedings, Mr. Burgess was under an injunction not to disturb the family home, he could have been held in contempt of court and punished for his conduct. But he cannot, under long-established principles, be civilly sued by Mrs. Burgess.

Since the majority’s abrogation of the rule of spousal immunity is not based on any positive and unambiguous legislative statement of intent, I dissent. Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980).


author: PER CURIAM.

text:
    In re ESTATE OF Ethel FERGUSON, Deceased. Mons W. HELLYER and Harlan W. Hellyer, Appellants, v. Monica A. DEAN, Carl H. Dean and David R. Lowell, as personal representative of the Estate of Ethel J. Ferguson, Appellees.
    No. 82-1826.
    District Court of Appeal of Florida, Second District.
    April 13, 1983.
    Rehearing Denied June 9, 1983.
    John C. Lenderman of Ellis, Reynolds, Bradley & Lenderman, St. Petersburg, for appellants.
    Irene H. Sullivan, St. Petersburg, for ap-pellees Monica A. Dean and Carl H. Dean.
    Richard M. Georges of Kieffer, Georges & Rahter, St. Petersburg, for appellee David R. Lowell.
   PER CURIAM.

AFFIRMED. See In re: Estate of Carpenter, 253 So.2d 697 (Fla.1971).

OTT, C.J., and SCHOONOVER and LE-HAN, JJ., concur.


text:
    KELLY MART FOOD STORES, INC., Appellant, v. CITY OF ST. PETERSBURG, John Breckenridge, in his capacity as Hearing Officer, and the Human Relations Review Board, Appellees.
    No. 82-1167.
    District Court of Appeal of Florida, Second District.
    May 4, 1983.
    Rehearing Denied June 10, 1983.
    Joseph M. Ciarciaglino, Jr., of Osborne & Ciarciaglino, St. Petersburg, for appellant.
    Donald R. Odom, Asst. City Atty., St. Petersburg, for appellees.
   PER CURIAM.

Affirmed. City of Venice v. Valente, 429 So.2d 1241 (Fla. 2d DCA 1983).

OTT, C.J., and DANAHY and CAMPBELL, JJ., concur.


text:
    Charles OFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-884.
    District Court of Appeal of Florida, Second District.
    June 1, 1983.
    Rehearing Denied July 7, 1983.
   PER CURIAM.

This matter was previously before our court in 427 So.2d 1080 (Fla.App.1983). Therefore, because defendant has raised the same allegation in the present appeal, the issue herein is moot. Accordingly, this appeal is dismissed.

OTT, C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Charles OFFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-2420.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
   PER CURIAM.

Affirmed. Jenkins v. State, 267 So.2d 886 (Fla. 2d DCA 1972).

OTT, C.J., and CAMPBELL and LEHAN, JJ., concur.


text:
    LIBRARY LOUNGE, INC., d/b/a Library Lounge, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 82-2336.
    District Court of Appeal of Florida, Second District.
    June 3, 1983.
    Rehearing Denied July 5, 1983.
    Frank Ragano and Ira Weinstein, Tampa, for appellant.
    John A. Boggs, Staff Atty., Dept, of Business Regulation, Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978); Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982); § 120.68(10) and § 120.68(12), Fla.Stat. (1979).

OTT, C.J., and RYDER and DANAHY, JJ., concur.


text:
    James Edward SEYMOUR, Appellant, v. STATE of Florida, Appellee.
    No. 82-2695.
    District Court of Appeal of Florida, Second District.
    June 17, 1983.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirm. See Seymour v. State, 432 So.2d 770 (Fla. 2d DCA 1983); Goodson v. State, 400 So.2d 791 (Fla. 2d DCA 1981).

OTT, C.J., and RYDER and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Bruce Joseph SCHIHL, Appellee.
    No. 83-220.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Riley v. State, 448 So.2d 1029 (Fla. 3d DCA 1983). In response to appellant’s request, we join with the Third District Court of Appeal and certify to the Supreme Court of Florida, as provided for in Article V, Section 3(b)(4) of the Constitution of Florida, the following question of great public importance:

WHETHER IT IS UNLAWFUL [UNDER THE FEDERAL OR FLORIDA CONSTITUTION OR FLORIDA STATUTORY LAW] FOR THE POLICE, IN AN OTHERWISE LAWFUL MANNER, TO ENTER PRIVATE PREMISES WHICH THEY ARE AUTHORIZED TO SEARCH PURSUANT TO A VALID AND PREVIOUSLY ISSUED SEARCH WARRANT, WHEN THE ENTERING OFFICERS DO NOT PHYSICALLY HAVE THE SEARCH WARRANT IN HAND UPON ENTRY, BUT DO RECEIVE THE WARRANT SHORTLY THEREAFTER AND DULY EXECUTE IT.

HERSEY, GLICKSTEIN and DELL, JJ., concur.


text:
    Kittye S. MacNEILLE and Walter W. MacNeille, her husband, Appellants, v. William E. KILGORE, M.D., Orthopedic Surgeon, P.A., a corporation, and William E. Kilgore, M.D., Appellees.
    No. 82-2680.
    District Court of Appeal of Florida, Second District.
    June 29, 1983.
    Robert F. Nunez, St. Petersburg, for appellants.
    Thomas Saieva of Woodworth, Carlson, Meissner & Webb, St. Petersburg, for ap-pellees.
   PER CURIAM.

AFFIRMED. See F.M.C. Corp. v. Chatman, 368 So.2d 1307 (Fla. 4th DCA 1979); Tosar v. Sladek, 393 So.2d 61 (Fla. 3d DCA 1981); Appraisal Group, Inc. v. Visual Communications, 426 So.2d 1155 (Fla. 3d DCA 1983).

HOBSON, A.C.J., and CAMPBELL and LEHAN, JJl, concur.


text:
    Diane Joy SAUGSTAD, Appellant, v. VICKY’S CAR CITY, INC., and Steven Jerry Glauser, Appellees.
    No. 82-2692.
    District Court of Appeal of Florida, Second District.
    July 1, 1983.
    Paul F. Probst, Jr., of Larson, Conklin, Stanley & Probst, P.A., Belleair Bluffs, for appellant.
    Guillermo A. Ruiz, St. Petersburg, for appellees.
   PER CURIAM.

As to the dismissal of Count II of appellant’s complaint, we cannot find that the argument raised by appellant was preserved for appeal. In any event, as to both Count I and Count II, there is sufficient evidence in the record to support the trial court’s determinations, which are entitled to a presumption of correctness. Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

AFFIRMED.

BOARDMAN, A.C.J., and SCHOON-OVER and LEHAN, JJ., concur.


author: SCHEB, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Timothy BUNNELL, Appellee.
    No. 83-430.
    District Court of Appeal of Florida, Second District.
    July 6, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, Howard L. Crown, Chief Asst. Public Defender, and Judith Ellis, Sp. Asst. Public Defender, G. Robertson Dilg, Student, Clearwater, for appellee.
   SCHEB, Acting Chief Judge.

This appeal by the state challenges a county court order declaring section 843.-185 (renumbered section 843.035, Florida Statutes [Supp.1982]), unconstitutional. The court held that the act creating section 843.185 violates Article III, section 6, of the Florida Constitution in that it embraces two subject matters bearing no reasonable relationship to one another. We have jurisdiction pursuant to Article V, section 4(b)(1), Florida Constitution; section 26.-012(1), Florida Statutes (1981); and Florida Rule of Appellate Procedure 9.030(b)(1)(A). We reverse.

The state filed an amended information charging Timothy Bunnell with obstruction of justice by giving false information in violation of section 843.185. The offense allegedly occurred on August 25, 1982, when Bunnell was stopped and arrested by a St. Petersburg police officer for driving with an expired tag and without a valid driver’s license.

Bunnell filed a motion to dismiss contending that section 843.185 was unconstitutional because its enactment violated the “one subject” requirement of Article III, section 6, of the Florida Constitution. After examining submitted memoranda of law and hearing argument of counsel, the county court granted the motion and ruled:

It is readily apparent to even a casual observer that chapter 82-150 embraces two subject matters that bear no reasonable relationship with each other. The establishment of a crime for obstructing justice by giving false information (name or address) is not naturally germane to the establishment of a Florida Council on Criminal Justice. (Citation omitted.) The two subject matters are not properly connected to be covered under the general heading of “The Criminal Justice System.”

We conclude the county court erred in striking down section 843.185 and dismissing the state’s amended information against Bunnell.

Section 843.185 was initially passed by the legislature as a part of Chapter 82-150, Laws of Florida, and became effective July 1, 1982. The title of Chapter 82-150 reads:

An act relating to the Florida Council on Criminal Justice; creating s. 843.185, Florida Statutes, prohibiting the obstruction of justice by false information; providing a penalty; amending s. 23.152(3), (4) and (8), Florida Statutes, changing and reducing the membership of the council; providing for nonvoting representatives of members; providing for review and repeal of Part VIII of Chapter 23, Florida Statutes, relating to the “Florida Criminal Justice Council Act” in accordance with the Regulatory Sunset Act; providing an effective date.

Section 1 of the body of the act defines the crime and sets forth the penalties for obstruction of justice by giving false information. Section 2 amends the composition of the Florida Council on Criminal Justice, an advisory executive agency which concerns itself with the improvement of the criminal justice system. See § 23.152, Fla.Stat. (Supp.1982).

The state contends that Chapter 82-150 deals with the general subject area of the criminal justice system and that all provisions of the act are germane to this subject. Therefore, the state argues that the act passes constitutional muster and urges us to reverse the trial court’s holding.

The relevant portion of Article III, section 6, of the Florida Constitution states: “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” In State v. Lee, 356 So.2d 276 (Fla. 1978), the supreme court rejected a challenge that an extensive legislative act concerning both insurance and tort reform violated the “one subject” requirement. In doing so, the supreme court stated its view as to the rationale behind the “unity of subject matter” constitutional mandate:

The purpose of the constitutional prohibition against a plurality of subjects in a single legislative act is to prevent a single enactment from becoming a “cloak” for dissimilar legislation having no necessary or appropriate connection with the subject matter. E.g., Colonial Inv. Co. v. Nolan, 100 Fla. 1349, 131 So. 178 (1930).

356 So.2d at 282.

The court added, however, that when a court is determining whether to strike down a legislative enactment as violative of the “one subject” requirement, it should keep in mind the following:

This constitutional provision, however, is not designed to deter or impede legislation by requiring laws to be unnecessarily restrictive in their scope and operation. See State ex rel. X-Cel Stores, Inc. v. Lee, 122 Fla. 685, 166 So. 568 (1936). This Court has consistently held that wide latitude must be accorded the legislature in the enactment of laws, and this Court will strike down a statute only when there is a plain violation of the constitutional requirement that each enactment be limited to a single subject which is briefly expressed in the title. Farabee v. Board of Trustees, 254 So.2d 1 (Fla.1971).

Id. The court’s language exemplifies the well-known “presumption of validity” axiom. Griffin v. State, 396 So.2d 152 (Fla.1981).

Under Florida law the subject of any particular legislative enactment may be as broad or as narrow as the legislature chooses. Lee; Ex parte Knight, 52 Fla. 144, 41 So. 786 (1906); Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969). However, as the supreme court noted in Knight:

When the subject expressed in the title is restricted, only those provisions that are fairly included in such restricted subject and matter properly connected therewith can legally be incorporated in the body of the act, even though other provisions besides those contained in the act could have been included in one act having a single broader subject expressed in its title.

41 So. at 788.

After the general subject matter of the law is determined, a court must decide whether the challenged law contains more than “one subject” in violation of the constitutional prohibition. In making this determination, the supreme court has generally asked whether all the provisions of the law are “germane” or “reasonably” or “properly connected,” Knight; Colonial Investment Co. v. Nolan, 100 Fla. 1349, 131 So. 178 (1930); State ex rel. Flink v. Canova, 94 So.2d 181 (Fla.1957); State v. Petruzzelli, 374 So.2d 13 (Fla.1979), or whether “the matters included in the law have a natural and logical connection.” Lee, 356 So.2d at 282.

In this case the trial judge specifically relied on Knight in striking down section 843.185. However, the court’s reliance was misplaced as the facts in Knight are distinguishable from the facts in the present case. In Knight the subject of the act was voluntarily limited by the legislature in the title “to prevent the cutting or removing of any timber from lands heretofore or that may hereafter be sold for taxes.” Knight, 41 So. at 788. However, the body of the act contained a penal provision designed to prevent the “gathering or removing [of] any turpentine extracted from the pine timber” in addition to a penal provision designed “to prevent the cutting or removing of any timber.” Knight, 41 So. at 789. The supreme court specifically struck down the “turpentine” provision because it could not be “fairly included” within the general subject which was expressly stated and restricted in the title. Id.

Here, on the other hand, the legislature did not expressly state a general subject, or voluntarily limit the subject matter in the title of Chapter 82-150. Rather, it chose to outline each separate provision of the act in the title. The general subject of the act does not have to be expressly stated in the title if it can be “readily inferred or easily spelled out from the details expressed in the title.” Nolan, 131 So. at 179. See also State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905). By applying a reasonable construction to the title of Chapter 82-150, it can be “readily inferred” that the legislature intended the general subject of the act to be the “Criminal Justice System.” As already noted, the legislature can make the subject as broad as it desires. Knight; Lee. In fact, the court below acknowledged in its order that "Criminal Justice System” would be the only possible “general heading” envisioned by the law. Hence, we hold that the legislature has chosen not to restrict the subject matter of Chapter 82-150.

Next, we turn our attention to the issue of whether Chapter 82-150 clearly violates the “unity of subject matter” mandate of Article III, section 6. The specific question is whether “the matters [Florida Council on Criminal Justice and creation of the crime of obstruction by false information] included in the law have a natural and logical connection” to the general subject and to one another. Lee, 356 So.2d at 282.

The Florida Council on Criminal Justice is an executive branch advisory agency under the jurisdiction of the governor created to advise the governor, legislature, supreme court, and especially the Bureau of Criminal Justice Assistance in the performance of its Chapter 23 duties, as to the improvement of state law enforcement activities and the administration of criminal and juvenile justice systems. §§ 23.152, 23.153, Fla.Stat. (1981).

Upon examination, it is readily apparent that the council and laws relating to the council are embraced by the admittedly broad subject “Criminal Justice System” which the legislature has defined in section 23.151(3) as including:

[A]ll activities pertaining to crime prevention and enforcement of the criminal law; including, but not limited to, the police, the courts, and the correction system as well as general programs for crime prevention and citizen action; the problems of victims of crime; the prevention, detection, and investigation of crime; the apprehension of offenders; the prosecution and defense of criminal cases; the trial, conviction, and sentencing of offenders; and correction and rehabilitation, which includes probation, imprisonment, treatment, and parole.

Furthermore, it is clearly apparent that section 843.185, the crime of obstruction of justice by giving false information, is also embraced within the same general subject impliedly set forth by the legislature. Inasmuch as every fair intendment and reasonable doubt should be yielded in favor of the validity of the legislative enactments, Knight, we cannot say that amendments relating to the Florida Council on Criminal Justice and the creation of the crime of obstruction by false information have no “logical connection.”

We hold that the enactment of Chapter 82-150 did not violate the “unity of subject matter” requirement. The county court erred in ruling to the contrary and dismissing the information. Accordingly, we reverse and remand for proceedings consistent with this opinion.

RYDER and DANAHY, JJ., concur.

      . The court rejected Bunnell’s second motion, which sought to have the statute declared unconstitutional on the grounds that it was vague and overbroad and its passage violated the equal protection clause and the prohibition against cruel and unusual punishment.

      . Modern supreme court cases interpreting Article III, section 6, support our conclusion in light of the trend toward upholding constitutionality of legislative enactments challenged as in violation of the "one subject" constitutional requirement. See, e.g., State v. Volusia County Industrial Development Authority, 400 So.2d 1222 (Fla.1981) (including authority to issue bonds for financing for-profit nursing homes within the Industrial Development Financing Act); Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981) (combining provisions dealing with medical malpractice and insurance); State v. McDonald,. 357 So.2d 405 (Fla. 1978) (joining a provision for the decriminalization of traffic infractions with the creation of a separate offense for refusing to post a bond, or accept or sign a summons required by a traffic citation); State ex rel. Shevin v. Metz Construction Co., 285 So.2d 598 (Fla.1973) (combining provisions for factory-built housing with one establishing a department to regulate such housing); Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969) (including within the Sunshine Act provisions for open meetings with provisions permitting private citizens to sue officials who attend illegally closed meetings).


author: WIGGINTON, Judge.

text:
    Martha KRASNOSKY, John E. Krasnosky, Jr., and South Carolina Insurance Company, Appellants, v. Edna M. MEREDITH, Appellee.
    No. AP-207.
    District Court of Appeal of Florida, First District.
    July 8, 1983.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellants.
    Thomas C. Staples, of Mann, Lang & Staples, Pensacola, for appellee.
   WIGGINTON, Judge.

The present suit arose from a one-car accident in Georgia, occurring approximately six miles from the Georgia-Florida border. The two occupants of the automobile were both residents of Florida and the insurance policy was issued in Florida by the appellant South Carolina Insurance Company, a company licensed to do business in Florida. The accident occurred en route to Florida from a visit with relatives south of Atlanta, when the automobile left the highway and collided with a tree. The driver, Jessie Sasser, died ten days after the accident as a result of injuries sustained therein. The passenger, Edna M. Meredith, suffered extensive injuries, recovery for which prompted the cause of action brought against the Krasnoskys as personal representatives of the estate of Jessie Sasser, and South Carolina Insurance Company, Mr. Sasser’s liability insurance carrier.

During the trial, the court was presented a motion for directed verdict in which it was requested to hold Georgia law applicable and accordingly, plaintiff having failed to demonstrate gross negligence, to find for the estate of Jessie Sasser. The trial court reserved decision on the motion and submitted a special verdict to the jury requesting the jurors to determine whether Mr. Sasser had been guilty of simple negligence or gross negligence; the jury returned a verdict of simple negligence.

In the post-trial order, the court ruled that the law of Florida should be applied rather than the law of Georgia, Florida’s law requiring a showing of only simple negligence on the part of a host driver for a guest passenger to recover. Applying Bishop v. Florida Specialty Paint Company, 389 So.2d 999 (Fla.1980), and State Farm Mutual Automobile Insurance Company v. Olsen, 406 So.2d 1109 (Fla.1981), the trial court held that, “under the particular facts of this case ... the State of Florida has a more significant relationship to the determination of the rights and the liabilities of the parties than does the State of Georgia.” We affirm.

The “significant relationships test” set forth in Bishop and Olsen mitigates in favor of application of Florida law, as the only relationship of Georgia to the personal injury action is the mere “happenstance” of the automobile coming into contact with a Georgia tree located six miles from the Florida state line. Bishop at 1000. On the other hand, the trip was to begin and end in Florida, plaintiff and defendants are either Florida residents or licensed to do business in Florida, and the host-guest relationship between the parties arose in Florida. Under those circumstances, the flexibility of the Restatement’s “significant relationships test” clearly serves to further the ends of justice.

AFFIRMED.

ERVIN, C.J., and THOMPSON, J., concur.


text:
    STATE of Florida, Appellant, v. Michael Seth BURKE, Appellee.
    No. 83-621.
    District Court of Appeal of Florida, Second District.
    July 15, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Joseph F. McDermott, St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See State v. Kelly, 407 So.2d 257 (Fla. 2d DCA 1981); Crain v. State, 302 So.2d 433 (Fla. 2d DCA 1974).

BOARDMAN, A.C.J., DANAHY, J., and THREADGILL, EDWARD F., Jr., Associate Judge, concur.