author: TYSON, Judge.

text:
    Jackie ALLDREDGE v. STATE of Alabama.
    8 Div. 924.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-809.
    Jerry Knight, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Jackie Alldredge was indicted for rape in the first degree in violation of § 13A-6-61, Code of Alabama 1975. The appellant was found “guilty as charged in the indictment” and the trial court set sentence at 15 years’ imprisonment in the penitentiary.

At approximately 7:00 p.m. on September 6, 1980, the prosecutrix and her 13 month old son left their home in Valhermosa Springs, Madison County, Alabama, to visit her parents who resided in Lacey’s Springs. She and her husband had just finished dinner and she left him at home because he was tired. After visiting her parents for a few hours, she left to return home.

The prosecutrix was worried about running out of gas on the way home because the gas gauge on her car did not function properly. She passed two gasoline stations on the way to her home but did not stop because she did not have any money. Approximately four miles east of the intersection of U.S. 231 and Alabama 36, the prose-cutrix’s car did, in fact, run out of gas. At this point, the prosecutrix pulled her car to the side of the road, turned on the flashers and locked three of the doors. After sitting in the car for 10 to 15 minutes she decided to get out and walk with her child toward the Wavaho gas station so she could call her mother for help.

As she was walking, a car passed her, turned around and passed her again, and then turned around a final time and came up behind. The prosecutrix became frightened and began to run. One of the persons in the car, whom she later learned was named Stanley Cox, grabbed her by the arm and pushed her and the child into the back seat of the car. The driver of the car was the appellant.

Once she was in the car, the appellant drove to the Wavaho Station and asked for five dollars worth of gasoline. The prose-cutrix said she knew the service station attendant and tried to get his attention by making the baby cry but she was unsuccessful. She stated she did not try to escape “[b]ecause they told me when I pulled up if I said anything, he had a knife and he would kill me. That all Jackie had to do was mash the gas and go, and there wouldn’t nobody catch them.” (R. 46).

The appellant then drove away from the station toward Brinley Mountain. A short time later the appellant stopped the car, and he and -Cox got some beer out of the trunk. The appellant then asked the prose-cutrix if she was “going to give him a piece.” She told him no and the two men got back in the car and drove to an area called Fort Bluff.

The appellant then told her to give him a piece or walk home. She told him she wished to walk home so she and the child got out of the car and began to walk. After she had walked a short distance the appellant grabbed her and forced her back in the car. Cox then told the appellant that “they might as well kill me because they had already — that if I claimed rape they wouldn’t have as much time as if they had already raped me.” (R. 56).

After driving around for a while longer, the appellant again stopped the car and pulled the prosecutrix out of the car, then Cox grabbed the child and took him to the edge of a cliff. The child was crying and she begged him to let her have her baby. The appellant kept asking her to “give him a piece” and she kept telling him no. Then one of the two men said “... they didn’t know that a mother could be that selfish, to let her baby die because she wouldn’t give them what they wanted.” (R. 61). She was scared her child was going to be killed so she told the appellant “all right”. (R. 61).

The appellant then took her down a road, took off her clothes and forced her to have sexual intercourse with him against her will. Once he finished, he told her to lie there on the ground. Cox then walked up and attempted to engage in sexual intercourse with her. However, he was unable to consummate the act and told her to get up and get dressed.

The prosecutrix then got into the car and they drove away. Cox told the appellant that they should kill the prosecutrix but the appellant told Cox he had promised not to kill her if she let him have what he wanted. The appellant instructed the prosecutrix not to tell anyone or he would find her and kill her. She was then dropped off at the Wavaho Station.

At the station, she saw Red Johnson and asked him to take her to her mother’s house.

David “Red” Johnson stated he was at the Wavaho Station at approximately 10:30 p.m. on September 6, 1980. When he first saw the prosecutrix at the station she was crying and was very upset. He asked her what was wrong and she told him she had been raped. Johnson noticed some black marks on the child’s neck which looked like someone had put their hands on the child’s neck.

At approximately 11:00 p.m. on the same night, the prosecutrix’s parents were awakened by the prosecutrix. She appeared very upset and said she had been raped. The prosecutrix’s mother noticed the child’s arms were red and he had grease spots on his neck, back and shoulders.

The Sheriff’s Department was called and the prosecutrix gave them a description of the car the appellant was driving. The prosecutrix then called her mother-in-law and informed her of the incident. Her mother-in-law then went to her son’s home and awakened him. They then went to be with the prosecutrix at her parent’s home. Once there, the prosecutrix was taken to the hospital for an examination.

At the hospital, Dr. George Douglas examined the prosecutrix. He took several samples from the prosecutrix in the preparation of the rape kit which was later sent to Roger Morrison, a forensic serologist with the Department of Forensic Sciences for analysis. The presence of spermatozoa was found in the samples taken from the prosecutrix.

Roger Smallwood testified that he stopped the car which the appellant was driving at approximately 2:00 a.m. on September 7, 1980, after receiving a description of the car and a report of the general area in which it had been spotted. The appellant, Cox and his brother, Michael Cox, were in the car at this time. Small-wood found a pocket knife on the appellant and one also on Cox.

The prosecutrix’s husband stated that on September 7, 1980, he went to pick up the car the prosecutrix had been driving the night before. It was still at the location where she had left it and he had to prime the carburetor in order to get it started.

The appellant testified he and Stanley Cox were riding around drinking beer on September 6, 1980. At some point, they decided to go to the Wavaho Station for gasoline. Along the way, they noticed the prosecutrix walking beside the road with her child. The appellant stopped the car and asked her if she wanted a ride. The prosecutrix stated that she did and got in the car. Once inside the car, she stated she had run out of gas and needed to get to a telephone.

The appellant then continued on to the Wavaho Station. When they arrived at the station the prosecutrix slid down in the back seat and stated, “There’s my husband. He will kill me if he sees me in the car with ya’ll.” (R. 298).

The appellant drove off after purchasing some gasoline. He drove to another phone but the prosecutrix did not use it. Cox and the appellant continued drinking beer as they were riding around. At some point, the appellant stopped the car and told the prosecutrix “to put out or get out.” (R. 309).

The prosecutrix then got out of the car and began walking with her child. After she walked a short distance, the appellant told her to get back in the car and he would give her a ride. She got back in the car and they started driving toward Huntsville.

When they got to the Fort Bluff area, the appellant again stopped the car and went to the trunk for a beer. After he got back in the car, the prosecutrix asked for a cigarette and then asked where they were “going to do it at.” (R. 311). He told her they could do it on the ground so the two of thém got out and engaged in sexual intercourse.

The appellant testified he did not force her to have sex nor did he or Cox ever threaten her or her child.

I

The appellant contends the trial judge committed reversible error because he did not charge the jury on the lesser included offense of sexual misconduct.

Section 13A-l-9(b), Code of Alabama 1975 states:

“The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.”

To determine whether a rational basis existed in this case to support a charge of sexual misconduct, we must first define that offense.

“A person commits the crime of sexual misconduct if:
(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by sections 13A-6-61 and 13A-6-62; or with her consent where consent was obtained by the use of any fraud or artifice; or
(2) Being a female, she engages in sexual intercourse with a male without his consent; or
(3) He or she engages in deviate sexual intercourse with another person under circumstances other than these covered by sections 13A-6-63 and 13A-6-64. Consent is no defense to a prosecution under this subdivision.”

Ala.Code, § 13A-6-65(a)(1975).

We are only concerned with subdivision (1) of the above statute since subdivisions (2) and (3) clearly are not applicable.

The appellant states in his brief that the prosecutrix engaged in sexual intercourse with him because she was afraid to walk through an isolated rural area in the middle of the night with her 13 month old child. Thus, he contends, an instruction on the offense of sexual misconduct should have been given to the jury.

We cannot agree with this argument of the appellant. There was clearly sufficient evidence elicited at trial to sustain the appellant’s conviction for rape in the first degree.

“A male commits the crime of rape in the first degree if: He engages in sexual intercourse with a female by forcible compulsion.”

Ala.Code, § 13A-6-61(a)(l), (1975).

Forcible compulsion is defined in § 13A-6-60(8) as:

“Physical force that overcomes earnest resistance'or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

The prosecutrix testified she engaged in sexual intercourse with the appellant because she was scared she would be' killed unless she acquiesced. Furthermore, she had been told that the two men had a knife and they had discussed killing her. Certainly, these facts constitute forcible compulsion. If the jury believed the prose-cutrix’s testimony, which they did, then the appellant was guilty of rape in the first degree.

The appellant testified the prosecutrix was given two opportunities to use the telephone shortly after she was picked up by the two men. She chose not to use the phone and voluntarily continued to ride around with them even though she had a chance to escape or get away. The appellant stated that he told the prosecutrix at one point to “put out or get out.” Had she engaged in sexual intercourse with the appellant at this point, we might have seen some merit in the appellant’s argument. However, following the appellant’s statement, the prosecutrix began walking. The appellant then told her he would give her a ride anyway and she voluntarily got back in the car with the two men. A short time later, with no further urging from the appellant, the prosecutrix asked where they were “going to do it at.” These facts clearly indicate consent. The appellant never stated the prosecutrix “had sex with him just to obtain a ride home.” Furthermore, he stated she was very friendly after this incident occurred and she said “bye” when she was dropped off at the Wavaho Station.

Therefore, from the evidence presented at trial, either the appellant forced the prosecutrix to have sex with him and was guilty of first degree rape, or the prosecutrix consented to sexual intercourse and the appellant was not guilty of any offense.

From our examination of the facts, as disclosed above, we do not find a rational basis which would support a charge on sexual misconduct. Therefore, the trial judge properly refused to charge the jury on that offense. Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981).

II

The trial judge refused to give the following charges which the appellant claims constituted reversible error:

“DEFENDANT’S REQUESTED WRITTEN CHARGE NO. 4
“I charge you members of the jury that a reasonable doubt is not the same as a probability of the Defendant’s innocence. A reasonable doubt of the Defendant’s guilt may exist even when the evidence fails to convince the jury that there is a probability of the Defendant’s innocence.”
“DEFENDANT’S REQUESTED WRITTEN CHARGE NO. 5
“I charge you members of the jury that if you are not satisfied beyond all reasonable doubt and to a moral certainty to the exclusion of every reasonable hypothesis but that of the guilt of the Defendant, then you should not find the Defendant guilty; it is not necessary to raise a reasonable doubt that the jury should find from the evidence a probability of the Defendant’s innocence, but a reasonable doubt may arise even when there is no probability of the Defendant’s innocence in the testimony and if the jury have not an abiding conviction to a moral certainty of the Defendant’s guilt, it is the duty of the jury to find the Defendant not guilty.”
“DEFENDANT’S REQUESTED WRITTEN CHARGE NO. 8
“I charge you members of the jury that if from the evidence there is a probability of the Defendant’s innocence, that is just ground for a reasonable doubt and you should find the Defendant not guilty.”

There is an extensive discussion on the law in Alabama concerning the above instructions in 23 A C.J.S. § 1282 p. 675. The more recent decisions and the majority view seem to indicate that the above charges are properly refused for the reasons we will state below, although there are cases which hold to the contrary.

Charges number 4 and 5 have been properly refused as argumentative and not predicated on the evidence. Whittle v. State, 213 Ala. 301, 104 So. 668 (1925); Odom v. State, 253 Ala. 571, 46 So.2d 1 (1950); McDowell v. State, 238 Ala. 101, 189 So. 183 (1939); Clayton v. State, 36 Ala.App. 610, 63 So.2d 564, cert. denied, 258 Ala. 451, 63 So.2d 565 (1952); Turner v. State, 410 So.2d 458 (Ala.Cr.App.), cert. denied, 410 So.2d 458 (Ala.1982); Thomas v. State, 399 So.2d 915 (Ala.Cr.App.1981); Fitch v. State, 372 So.2d 1328 (Ala.Cr.App. 1979), cert. denied, 372 So.2d 1331 (Ala.1979).

Charge number 8 has been properly refused as failing to predicate the probability of innocence on the evidence in the case. Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692, cert. denied, 250 Ala. 409, 34 So.2d 700 (1948); Walker v. State, 33 Ala.App. 614, 36 So.2d 117 (1948); Register v. State, 34 Ala.App. 505, 42 So.2d 519, cert. denied, 252 Ala. 659, 42 So.2d 525 (1949); Carter v. State, 53 Ala.App. 248, 298 So.2d 668 (1974).

Furthermore, we hold the above charges were substantially and fairly covered by the court’s oral charges and the giving of several of the written charges requested by the appellant. Ala.Code, § 12-16-13 (1975). Stinson v. State, 401 So.2d 257 (Ala.Cr.App.1981); Jones v. State, 412 So.2d 1247 (Ala.Cr.App.), cert. denied, 412 So.2d 1247 (Ala.1982).

Therefore, we hold the trial judge did not err in refusing to give charges number 4, 5 and 8 as requested by this appellant and find no ground for reversal on this issue.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Robert Earl OLIVER v. STATE.
    8 Div. 942.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-926.
    Jack B. Sabatini for Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This case is now before this Court on an appeal from a judgment of conviction of the crime of carnal knowledge of a girl under the age of 12 years and a sentence to imprisonment for twenty-five years. The case was before this Court once before on an appeal from the same conviction and sentence, but such appeal was dismissed for its not having been timely filed. It was not filed within the forty-two day time limit. Appellant then challenged his conviction by petitions for post-conviction relief, including a petition for writ of error coram nobis filed in the court where the judgment now on appeal occurred. On an appeal from a denial of the petition, this Court, by a brief but comprehensive opinion, held that the defendant was entitled to an appeal of his conviction, reversed the judgment and remanded the case to the trial court with directions that “the petitioner be afforded an appeal.” Oliver v. State, Ala.Cr.App., 435 So.2d 207, 208, 209, (1983).

Appellant’s only contention for a reversal is the following:

“THERE WAS INSUFFICIENT EVIDENCE SUBMITTED AT TRIAL TO SUPPORT THE VERDICT OF GUILTY OF THE DEFENDANT.”

The alleged victim, whose name we refrain from calling, was ten years old at the time of the trial, nine years of age at the time of the alleged crime. She was the stepdaughter of the defendant. She and defendant were the only eyewitnesses to the incident upon which the prosecution was based. The defendant emphatically denied that he “did carnally know, or abuse in the attempt to carnally know” the alleged victim.

Dr. John Diplacido, an obstetrician, practicing his profession in Huntsville and on the faculty of the University of Alabama, testified that he examined the alleged victim in the Huntsville Hospital on February 20,1979, which according to the undisputed evidence was the Monday following the Saturday evening of the alleged crime. He testified:

“Q. Doctor, tell the jury, if you will, just what you did, what examination you conducted on [the child] at that time.
“A. I talked to the child for a good while trying to determine what had happened to her and then examined her generally and vaginally to attempt to see if any injuries had taken place and to see if there was any evidence of rape.
“All right. Did you examine her vagina? “A. Yes I did.
“Q. What, if anything, did you find in that examination?
“A. Her hymen was torn and bleeding at the time of the examination.
“Q. All right.
“A. That’s the structure immediately inside the vagina.
“Q. Were there any other physical injuries that you observed on or about her body?
“A. No, sir.
“Q. Doctor, from your examination, were you able to determine how old this injury was?
“A. Only that it was not more than two or three days old, in that general range. “Q. There was still some blood present, some bleeding?
“A. Yes, sir.
“Q. Doctor, would that injury, based upon your training and background in medicine, would that injury be consistent with something having been inserted in her vagina?
“A. Yes.”

According to the testimony of the alleged victim, she and her sister had been visiting at a friend’s house in the neighborhood where the victim lived with her mother and her stepfather, her brother and her sister, and while at the friend’s house her stepfather came for her and her sister and they returned with her stepfather to her home. She and her sister then went upstairs, and her sister went to sleep. Thereafter, her stepfather came upstairs and took the victim downstairs. She testified:

“A. And then he told me to get on the couch.
“Q. That was Robert Earl told you to get on the couch?
“A. Yes.
“Q. And what did you do at that point? Did he come up to get you upstairs, did he take you downstairs?
“A. Yes.
“Q. He took you downstairs and you got on the couch?
“A. Yes.
“Q. And where is the couch located? “A. Over on this side.
“Q. Well, is it in the living room?
“A. Yes.
“Q. And there is a TV in there?
“A. Yes.
“Q. And after he got you on the couch, did anything happen at that point?
“A. Yes.
“Q. What happened?
“A. He stuck his thing in me.
“Q. How did he do that? Did you have any pants on?
“A. No.
“Q. You didn’t have any pants on?
“A. No.
“Q. What happened to your pants?
“A. He pulled them down.
“Q. And did you have on your night gown?
“A. Yes.
“Q. You had on your nightgown and your pants?
“A. Yes.
“Q. When he did that, did it hurt you?
“A. Yes.
“Q. Did anything happen to you when he did that?
“A. Yes.
“Q. What happened?
“A. Blood.
“Q. How long did that happen? Did it last a long time, or was it short?
“A. A long time.
“Q. A long time?
“A. Yes.
“Q. Did you cry?
“A. No.
“Q. Did you ask him to stop?
“A. No.
“Q. Were you scared?
“A. Yes.
“Q. After he did that, what did you do?
“A. Went upstairs.
“Q. When you got upstairs, what did you do?
“A. Went in the bathroom.
“Q. And did you do anything in the bathroom?
“A. Washed up.
“Q. Do you know about what time this happened?
“A. No.
“Q. Well, was it late at night?
“A. Yes.
“Q. After you washed up, what did you do?
“A. Go to bed.
“Q. Did you talk to anybody that night?
“A. Yes.
“Q. Who did you talk to?
“A. My brother and sister.
“Q. And what did you tell them?
“A. The same thing.
“Q. You told them what he did?
“A. Yes.
“Q. And did they tell you to do anything?
“A. Yes.
“Q. What did they tell you to do?
“A. To tell my mother.
“Q. Did you tell your mother?
“A. Yes.
“Q. When did you tell her?
“A. When she came.
“Q. Can you tell us what he did any better than you have before?
“A. Yes.
“Q. What did he do?
“A. He stuck his thing in me.
“Q. ... [the first name of the witness], where did he stick you?
“A. In the middle part.
“Q. In the middle part?
“A. Yes.”

According to further testimony of the alleged victim, on Sunday, the next day, she played, and on the Monday following she went to school and while at school told her teacher; she was then taken to the principal’s office; afterwards police were informed of the situation, her aunt was called and the witness was taken to the hospital, where she was examined by Dr. Diplacido. There was testimony of other witnesses that corroborated that which has just been narrated in this paragraph as to what occurred at the school and at the hospital.

Appellant’s attorney emphasizes the lack of precision and specificity in the testimony of the alleged victim as to what the defendant did to her while she was on the couch downstairs. He especially decries the use of the word “thing,” and states in his brief: “It should be noted that nowhere in the record is there an explanation of what illegal act took place, nor is there a statement as to what ‘thing’ was stuck in her or where.” As there is some undesirable vagueness in the particular testimony, appellant’s criticism thereof is understandable and is not to be ignored. However, the lack of definiteness and precision in the questions asked the witness and the answers given by her is likewise understandable by reason of the proper effort on the part of counsel to avoid vulgarity and the inability of the child of such tender age to state with precision what was meant by the “thing” that defendant stuck in her and as to where in her that he stuck it. However, it becomes increasingly clear that by use of the pronoun, “his,” instead of the article “a,” or the article “an,” she was referring to something that was a part of his body as distinguished from some inanimate object that he may have owned or possessed. Any doubt as to what part of her body was referred to by her in her testimony as to what occurred is removed by the testimony of the physician who examined her. Even if the child had known what name to use for the “thing,” she was not speaking in an unknown tongue by the use of the particular word in referring to the object. In Webster’s New International Dictionary, Second Edition, we find the following as one of the meanings of the word:

“Thing
“12. Colloq., a_
“b. Something for which the name is not used because of forgetfulness, indifference, disdain, or the like;_” (emphasis supplied)

Although the defendant stoutly testified that no such incident as that described by his stepdaughter occurred, his wife expressed confidence in his innocence in her testimony, and there was some testimony by two visitors at the home of defendant and his wife and family on the night of the alleged crime to the effect that defendant borrowed a car of one of the visitors to go elsewhere for a while that night, we are fully convinced that the evidence presented a jury question as to defendant’s guilt. 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.


author: SAM TAYLOR, Judge.

text:
    Jimmy Lee HADNOT v. STATE.
    3 Div. 924.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.

      Kenneth Shinbaum, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant Jimmy Lee Hadnot was indicted and convicted for robbery in the first degree of a Southern Pantry store and gasoline station in Prattville, Alabama.

I

Appellant contends that the trial court erred in denying his motion to exclude items of evidence on the grounds that they were seized as a result of an illegal arrest. Section 15-10-3, Code of Alabama 1975, states, “An officer may arrest any person without a warrant, on any day and at any time, ... (3) when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it....”

Reasonable cause has been defined as “knowledge of circumstances such as would lead a reasonable man of ordinary caution, acting impartially, reasonably and without prejudice, to believe the person arrested to be guilty.” Swicegood v. State, 448 So.2d 433 (Ala.Crim.App.1983), citing Oliver v. State, 385 So.2d 69 (Ala.Crim. App.1980).

Officer Howard Rogers, the arresting officer, was at the police station when the robbery was reported. Mrs. Shirley Gandy, the cashier at Southern Pantry, called to say that the store had been robbed and that Jimmy Lee Hadnot was the person who committed the robbery. She testified at trial that appellant had been in the store many times before the robbery and that she recognized him. She also said she knew him from his voice and the portion of his face that she could see through the slit in his pillowcase mask. From this evidence, we find that the police had sufficient knowledge from a credible source to believe that appellant committed the robbery. Therefore, the arrest was valid. Thomas v. State, 50 Ala.App. 277, 278 So.2d 230 (1973).

II

Appellant next asserts that the trial court erred in denying his motion to suppress the evidence because he was not sufficiently warned of his right to remain silent. There is conflicting evidence as to whether the appellant was warned of all his Miranda rights. Officer Rogers testified at an earlier time on this issue. This testimony, although transcribed, did not become part of the record in this case. He testified at trial that he informed the appellant of his Miranda rights. The court found that the appellant was sufficiently apprised of his Miranda rights to overcome the presumption of involuntariness of his statements and acts thereafter. The decision of the trial court on such an issue, where there is any evidence to support it, should not be disturbed unless palpably wrong. We find no error here.

Ill

Appellant next contends that the court erred in denying his motion to suppress where there was no evidence that the appellant waived his right to remain silent. The record reflects that at the hearing out of the presence of the jury in this case, once there was testimony as -to the appellant’s having been advised of his Miranda rights, the hearing stopped at that point. Testimony adduced at the earlier proceeding was not introduced in this proceeding and is not present in the record. We cannot determine from the evidence whether the appellant waived his right to remain silent. This aspect of the problem was not specifically addressed at trial. The burden is on the state to overcome the presumption of involuntariness. We conclude that this case must be remanded to the trial court for an evidentiary hearing on the issue of whether or not the appellant, after being informed of his Miranda rights, knowingly, intelligently and voluntarily waived those rights. The trial judge should make written findings of fact on this issue and return same together with the transcript to this court.

Accordingly, this cause is remanded with directions.

REMANDED WITH DIRECTIONS.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Maurice Dale LYTLE v. STATE.
    7 Div. 178.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.

      Patrick P. Hughes, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton for McLain & Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Maurice Dale Lytle was indicted and convicted for the murder of Gwendolyn Carter Johnson in violation of Alabama Code § 13A-6-2 (1975) and sentenced to life imprisonment. He claims he was incompetent to stand trial and argues that the court erred by finding no “reasonable ground to doubt his sanity” under Alabama Code § 15-16-21 (1975).

Pursuant to Lytle’s pretrial Motion for Sanity Investigation, the trial court ordered that he be evaluated by the Calhoun-Gle-burne Mental Health Center in Anniston, Alabama. Approximately six weeks before his trial, Lytle was examined by Dr. Wallace H. Wilkerson, a psychiatrist, and Dr. Robert Summerlin, a clinical psychologist, both of whom determined there was “no doubt [Lytle] understands the charges against him and that he is perfectly capable of assisting his attorney in his own defense _ [T]his prisoner is completely competent to stand trial.”

Immediately prior to trial, Lytle accused his appointed attorney of conspiring to convict him and asked the court to appoint another lawyer for him. Then, in response to a defense request that the trial judge hold a pretrial hearing on Lytle’s competency, the court heard further testimony from Dr. Wilkerson and received in evidence Ly-tle’s medical records for the preceding ten years. Dr. Wilkerson stated that he had seen Lytle some six weeks earlier for one hour and had reviewed Lytle’s medical records from the State of Illinois. Those records indicated that during the period 1967-77, Lytle had received the following seven medical diagnoses: schizophrenia, chronic undifferentiated type; schizophrenia, paranoid type; schizophrenia, simple type; schizophrenia, hebephrenic type; antisocial personality disorder; paranoid personality disorder; neurotic disorder — anxiety reactionable.

Replying to hypothetical questions from defense counsel, Dr. Wilkerson testified that, if Lytle had accused his attorney of conspiring against him, had heard voices and talked to the walls in his jail cell, and had been confused about the criminal proceedings pending against him, these facts would be "significant” and would prompt him to observe Lytle further in a residential facility. On the other hand, Dr. Wilkerson observed the following: “These people can fool you. They know the name of the game. They know all the ins and outs. And the business about being arraigned and whatever, they’re con-artists. That’s just the simplest way I can put it.” The physician concluded that, although he had found Lytle competent to stand trial six weeks earlier, he “couldn’t say with any sense of security as to what [Lytle’s] mental status is today.”

In response to the State’s question on cross examination of whether Lytle’s alleged hallucinations and disorientation could “be consistent with someone who is manipulating or attempting to beat the system”, Dr. Wilkerson answered, “Yes, sir, very much so. Because they know how to do it.” Finally, Dr. Wilkerson testified in response to the following question by the court:

“Q. And I think your testimony has been that one could, in fact, possibly to a great extent have done these things which [defense counsel] has brought up in his hypotheticals, and still be competent to stand trial?
“A. Yes, sir. And know full well what he was doing.”

The defense then called Deputy Robert Raxter, the Calhoun County jailer, and Mrs. Jessie Lytle, the defendant’s mother. Raxter testified that Lytle had been disoriented about the date of his arraignment and had talked to nonexistent people. Mrs. Lytle recounted that her son had talked to walls on several occasions and had recently warned her that a “group” or “gang” was coming to get her. Following arguments of counsel, the court found Lytle competent to stand trial.

The standard of appellate review for a ruling that there are no reasonable grounds to doubt the accused’s sanity is whether the trial judge abused his discretion. Miles v. State, 408 So.2d 158, 162 (Ala.Crim.App. 1981), cert. denied, 408 So.2d 163 (Ala.1982). The trial court’s order is an abuse of discretion if “(1) arbitrary or (2) unsupported by evidence or human reasoning.” Minniefield v. State, 47 Ala.App. 699, 704, 260 So.2d 607, 612 (1972).

In the case before us, the court’s order was neither arbitrary nor unsupported by the evidence. While the court had before it evidence of Lytle’s past mental diagnoses and current erratic behavior, it also had before it the expert opinion of Dr. Wilkerson that Lytle was competent to stand trial, and may well have been a “con-artist” trying to “beat the system” by attempting to appear insane. The evidence here was much less compelling than that in Bailey v. State, 421 So.2d 1364 (Ala.Crim. App.1982), where we concluded that there was no abuse of discretion in the denial of a motion for a mental examination. We agree with the Alabama Supreme Court’s observation in Pace v. State, 284 Ala. 585, 588, 226 So.2d 645, 647 (1969):

“The trial court held a hearing, listened to the witnesses and made a decision. It might have decided either way on the question of whether the hearing produced any real evidence of legal insanity or legal incompetence. Its decision was not arbitrary or unsupported by reason or fact. We conclude that the trial court did not abuse its discretion.”

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Roy KELLEY v. STATE of Alabama.
    8 Div. 44.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.

      A. Stewart O’Bannon, III, Florence, for appellant.
    Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   ON REHEARING

TYSON, Judge.

On May 8, 1984, this court unanimously affirmed this cause without opinion, 453 So.2d 8.

Because counsel has filed a request for a statement pursuant to Rule 39(k) and Rule 40 ARAP, this court sets forth the following as its opinion.

Roy Kelley was charged by indictment with unlawfully obtaining some $500.00 in currency from the person of one Mrs. Mary E. Carpenter, with intent to deprive the owner of said property, in violation of § 13A-8-4, Code of Alabama 1975.

The jury found the appellant “guilty as charged” and after a habitual felony offender hearing, at which four prior felonies including burglary, grand larceny, receiving stolen property and larceny were all placed in evidence, the trial court set sentence at 30 years’ imprisonment.

The State’s evidence consisted of the testimony of Mrs. Carpenter, an elderly woman in her seventies, who testified that appellant had befriended her and lived at her home where he would, from time to time, take her on errands as she was unable to drive her automobile. He would also sometimes take monies and pay bills for her. After doing this for several months, he talked her into going to the First National Bank of Florence and borrowing $500.00 from one Jackie Young, a loan officer there, and then turning the proceeds over to Kelley, the appellant. Mrs. Carpenter further testified as follows: (R. 35).

“Q. Never did come back?
“A. Uh huh.
“Q. Well, now, you say that he left then — when he came back, he left in January, 1982 and he never came back to your house. Is that what you’re saying?
“A. He never come back no more after he carried my money off, mister, I’m trying to tell you like it was.
“Q. Well, I’m trying to understand. He didn’t stay in your house anymore after that, did he?
“Q. He did not. Okay.
“A. Like I told you he come back the next day between twelve and one o’clock and I asked him did he still have my $500.00 and he said, ‘No’, and I asked him what he done with it and he said he didn’t know and he got up and left and I never did see him no more until I seen him up here.
“Q. At the preliminary hearing?
“A. Yeah.”

Mrs. Carpenter’s testimony indicated she lived off of monies she received from Social Security, something over $300.00 per month, out of which she had to buy medicine, pay her utility bills, rent and groceries.

The borrowing of the money was confirmed through Jackie Young, a loan officer at First National Bank of Florence, who testified that the transaction took place on January 28, 1982, and she observed the appellant leaving the bank with Mrs. Carpenter. The payment records of various indebtednesses showing that some of her accounts were short, and her bills not being paid properly were testified to by her son, Lee Short. He stated that he was a State Trooper with the State of Texas and had come back to Florence, Alabama, during the latter part of the summer of 1983 and had gone over his mother’s books and records and discovered the discrepencies.

Lee Short, the son, stated that he finally located the appellant, who was then living in Hamilton, Alabama, on October 15, 1983, and asked him to repay his mother for the monies which she had borrowed from the bank and subsequently had to repay herself. The monies were never repaid to Mrs. Carpenter.

The appellant presented no testimony at trial and there was no exception to the oral charge of the court.

The habitual felony offender hearing shows the four prior felonies and the 30 year sentence.

I

The sole issue on appeal is that the appellant was denied due process and equal protection of the law by being sentenced as a habitual felony offender and further that his sentence was disproportionate and too severe and appellant’s counsel cites us to the United States Supreme Court’s opinion in Solem, Warden v. Helm, — U.S. —, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). This court in recent months has several times applied the Solem test to the punishment imposed under the Alabama Habitual Felony Offender statute. See Jackson v. State, 440 So.2d 1181 (Ala. Crim.App.1983) and more recently, two cases which are Jones and Bryant v. State [Ms. March 20, 1984, 1 Div. 675], where we have upheld a life sentence growing out of a second degree theft conviction and a 22 year sentence to Jones, this being as a result of the taking of some clothing from a store and a high speed chase following. Both Jones and Bryant had substantial prior records. Similarly, we have upheld a sentence of 20 years for third degree burglary, also following the Jackson case which interprets Solem, supra, and upheld the 20 years sentence in Blues v. State, 447 So.2d 1319 (Ala.Crim.App.1984).

We also upheld a 25 year sentence, also after a habitual felony offender hearing for theft of property in the second degree in Pickens v. State, 447 So.2d 867 (Ala.Crim.App.1984). Very recently, the United States Court of Appeals for the Eleventh Circuit, upheld a life imprisonment sentence, without parole, for a robbery, following five prior drug convictions. Seritt v. Alabama, 731 F.2d 728 (1984). See Seritt v. State, 401 So.2d 248 (Ala.Crim.App.1981), cert. denied, 401 So.2d 251 (Ala.1981).

In light of the above authorities, this appeal is due to be and is affirmed.

APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

All the Judges concur.


author: OVERTON, Justice.

text:
    SOUTHEASTERN FISHERIES ASSOCIATION, INC., et al., Petitioners, v. DEPARTMENT OF NATURAL RESOURCES, State of Florida, Respondent.
    No. 62288.
    Supreme Court of Florida.
    April 26, 1984.
    Rehearing Denied Sept. 10, 1984.
    Robert M. Rhodes, H. Michael Madsen, James C. Hauser, Barry H. Barnett and Cari L. Roth of Messer, Rhodes & Vickers, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., and Bruce Bark-ett, Asst. Atty. Gen., Tallahassee, for respondent.
    Jack M. Skelding, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida League of Anglers, Inc., amicus curiae.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported as State, Department of Natural Resources v. Southeastern Fisheries Ass’n, 415 So.2d 1326 (Fla. 1st DCA 1982). The district court found Florida’s fish trap law, section 370.1105, Florida Statutes (Supp. 1980), to be constitutional and concluded that the law is enforceable by the state in its territorial waters as well as in the extraterritorial waters beyond Florida. The district court certified the following question to be one of great public importance:

Does Section 370.1105, Florida Statutes (1980 Supp.), apply to waters outside the territorial boundaries of the State of Florida, notwithstanding the absence of a provision expressing the intention that its provisions are to be given extraterritorial effect?

415 So.2d at 1331. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. While this case was pending before this Court, the United States District Court for the Southern District of Florida held that the subject statute, to the extent it applied to extra-territorial waters, had been preempted by the federal government and was unconstitutional. Bethell v. Florida, No. 82-1516-CIV-JWK (S.D.Fla. Sept. 29, 1983). We asked the parties to submit supplemental briefs on the preemption issue.

For the reasons expressed, we quash, in part, the decision of the First District Court of Appeal, answer the certified question in the negative, and hold that in order to enforce the unlawful-possession provisions of the statute the state must establish the intent to use the traps in waters within the territorial limits of the state.

The petitioner, Southeastern Fisheries, has asserted (1) that the statute is void for vagueness and overbreadth and (2) that the statute cannot now be enforced in the extra-territorial waters beyond Florida, particularly in view of the asserted federal preemption.

The statute in question, section 370.1105, Florida Statutes (Supp.1980), makes it unlawful to fish for saltwater finfish with any traps, or to possess any fish trap other than those traps specifically exempted by the act. The act, however, does not expressly state that its provisions apply in the extra-territorial waters beyond Florida. The statute reads as follows: .

(1) It is unlawful for any person, firm, or corporation to set, lay, place, or otherwise attempt to fish for saltwater finfish with any trap other than:
(a) A crab, crawfish, or shrimp trap specifically permitted under s. 370.13, s. 370.135, s. 370.14, or s. 370.15;
(b) A pinfish trap not exceeding 2 feet in any dimension, with a throat or entrance not exceeding 3 inches in height by three-quarters of an inch in width; or
(c) A black sea bass trap which has a biodegradable panel and a throat or entrance, the narrowest point of which is not more than 5 inches in height by 2 inches in width and the outer dimensions of which do not exceed 2 feet in height, 2 feet in width, and 2 feet in depth. However, such traps may be used only north of latitude 27° N.
(2) It is unlawful for any person, firm, or corporation to possess any fish trap other than a trap specified in paragraph (a), paragraph (b), or paragraph (c) of subsection (1) or to land, take, sell, or offer to sell any saltwater finfish caught by any trap other than a trap specified in paragraph (a), paragraph (b), or paragraph (c) of subsection (1).
(3) Any person who violates any provision of this section is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) Any vessel, vehicle, or equipment used in violation of this section, and any fish caught with a trap in violation of this section, shall be seized and may be forfeited.

Petitioners brought a declaratory judgment action seeking the proper construction of the statute. In a motion for summary judgment, petitioners attacked the constitutional validity of the statute. The trial court granted the summary judgment, finding (1) that if the statute is constitutional it is only enforceable in the state’s territorial waters because the statute does not clearly indicate a legislative intent to regulate conduct in the extra-territorial waters beyond Florida; (2) that the statute is unconstitutional because it is impermissibly vague in that it fails to define the term “illegal fish trap;” and (3) that the statute is unconstitutionally “overbroad” because it prohibits the mere possession of illegal fish traps on dry land.

The district court reversed and concluded “that the term ‘fishtrap’ is not ‘so vague that men of common intelligence must necessarily guess at its meaning.’ ” 415 So.2d at 1327 (citing State v. Hagan, 387 So.2d 943 (Fla.1980)). As these terms are used in the statute, the district court found, “they provide ‘a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.’ ” Id. In concluding that the statute is not vague, the district court relied on this Court’s decision in State v. Hagan, in which the terms “trawl net” and “trawling operation” were found to have a definite meaning in the fishing industry sufficient to satisfy due process requirements. The district court also found that the statute is not overbroad because there is no constitutional right to possess fish traps. Finally, the district court held that although there is absent from the statute an express legislative intent that it apply extra-territorially, “the possession and landing provisions [of the statute] indicate a legislative intent that the law should” so apply. 415 So.2d at 1330. In so holding, the district court receded from the principle it enunciated in Burns , that “[extraterritorial effect of an enactment is not to be found by implication.”

On the first point, we agree with the district court that the statute is neither overbroad nor vague. Too often, courts and lawyers use the terms “overbroad” and “vague” interchangeably. It should be understood that the doctrines of over-breadth and vagueness are separate and distinct. The overbreadth doctrine applies only if the legislation “is susceptible of application to conduct protected by the First Amendment.” Carricarte v. State, 384 So.2d 1261, 1262 (Fla.), cert. denied, 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980) (citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). See also McKenney v. State, 388 So.2d 1232 (Fla.1980); State v. Ashcraft, 378 So.2d 284 (Fla.1979). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). The vagueness doctrine has a broader application, however, because it was developed to assure compliance with the due process clause of the United States Constitution. The overbreadth argument is clearly not appropriate here because the possession and use of fish traps are not activities protected by the first amendment.

The fish trap statute can, however, be challenged as vague. A vague statute is one that fails to give adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement. In determining whether a statute is vague, common understanding and reason must be used. Where a statute does not specifically define words of common usage, such words must be given their plain and ordinary meaning. Hagan. Further, courts cannot require the legislature to draft laws with such specificity that the intent and purpose of the law may be easily avoided. Courts must determine whether or not the party to whom the law applies has fair notice of what is prohibited and whether the law can be applied uniformly.

In the instant case we agree with the district court that the fish trap statute places fishermen on notice that fish traps are unlawful, and that there are certain exceptions which are sufficiently described in the statute. We hold that the statutory prohibition of the use and possession of certain types of fish traps, as expressed in section 370.1105, with specific exclusions for lawful traps, is constitutional. If the statutory definition of “fish trap” were more precise, then the purpose of the statute could be easily circumvented. Our conclusion is in accordance with the Hagan rationale. We find that the term “fish trap” is not so vague that persons of common intelligence must guess at its meaning. More importantly, the term has a definite meaning within the fishing industry. We further conclude that the law is sufficiently definite to be reasonably and uniformly enforced.

The certified question concerns the application of section 370.1105 beyond state waters when evidence of that intent is not expressed in the statute. If we find there was an intent that this statute was to apply in extra-territorial waters beyond Florida, we must then determine whether the federal government has preempted the regulation of the use of fish traps in these extraterritorial waters.

At the outset we recognize that the state can regulate and control the operation of vessels and the acts of its citizens in waters outside Florida’s territorial limits, provided, however, that the federal government has not preempted state regulation. See Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941). The Florida Legislature has expressly- done so in other instances. For example, section 370.-15(2)(a), Florida Statutes (1979), makes it “unlawful for any person, firm or corporation to catch, kill, or destroy shrimp or prawn within or without the waters of this state.” (Emphasis added.) See State v. Millington, 377 So.2d 685 (Fla.1979). In section 370.15(2)(a) the legislature clearly stated its intent that the statute apply within or without the waters of Florida. No such terminology is contained in section 370.1105, the statute in issue here.

In Bethell v. Florida, the United States District Court for the Southern District of Florida expressly held that “Section 370.-1105, Florida Statutes (1981) is declared unconstitutional to the extent that it attempts to exercise the authority of the State of Florida over the area which is beyond the territorial seas of the State of Florida_” Slip op. at 1 (Summary Final Judgment). In so holding, the United States District Court recognized Skiorotes v. Florida, but determined that the Fishery Conservation and Management Act, 16 U.S.C. § 1801(b) (1976), applied. The court found that under that act the State of Florida participated as a member of the South Atlantic Fishery Management Council and in June 1982 accepted a fishery management plan which allowed the limited use of fish traps to catch saltwater finfish. The court expressly found that “whether there exists a conflict with federal law in this area of regulation is no longer open to question” and concluded that “section 370.1105 Florida Statutes has been preempted by 16 U.S.C. 1801 et seq.” Bethell v. Florida, slip op. at 3 (Order Granting Plaintiffs Motion for Summary Judgment). The court cited the Florida Third District Court of Appeal’s decisions in Tingley v. Allen, 397 So.2d 1166 (Fla. 3d DCA 1981), and Livings v. Davis, 422 So.2d 364 (Fla. 3d DCA 1982), as being consistent with its decision. Finally, the court held that enforcement of section 370.1105 would violate the commerce and equal protection clauses of the United States Constitution.

The attorney general of Florida takes issue with the United States District Court’s decision, noting that he is challenging that decision, and he requests that we hold this case in abeyance pending federal court resolution of his appeal. We decline to do so. The issue is whether or not Florida should be allowed to regulate the use of fish traps in extra-territorial waters pursuant to section 370.1105. The state’s authority to regulate in those waters is only by the consent and acquiescence of the federal government. We find that if there is to be a confrontation between the state and the federal government, then the legislature should expressly declare that it is its intent that the statute apply in extra-territorial waters, as it did in section 370.-15(2)(a) concerning shrimp. Since there is no clear expression by the legislature that it is unlawful “to set, lay, place or otherwise attempt to fish for saltwater finfish with any trap” outside the territorial waters of Florida, we find it would be improper to apply this statute to extra-territorial waters by implication and confront the federal government with its asserted validity.

Having so found, we must accept the petitioners’ argument that the unlawful possession of these fish traps in the territory of the state or in its territorial waters has the effect of unconstitutionally restricting the lawful use of these traps in extraterritorial waters. We hold that the statute is valid to prohibit the use and possession of fish traps within the state and its territorial waters, but that the state, in order to prosecute for unlawful possession of fish traps, must prove, as an element' of possession, the intent to unlawfully use the fish traps in the territorial waters of Florida.

For the reasons expressed, we approve in part and quash in part the decision of the district court and answer the certified question in the negative.

It is so ordered.

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

McDONALD, J., dissents.


author: BOYD, Chief Justice. McDONALD, Justice,

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, et al., Appellants, v. DEPARTMENT OF INSURANCE of the State of Florida and Bill Gunter, as Insurance Commissioner of the State of Florida, Appellees.
    No. 64405.
    Supreme Court of Florida.
    July 5, 1984.

      John K. Aurell, John Radey and Michael L. Rosen of Holland & Knight, Tallahassee; John M. McNatt, Jr., Jack W. Shaw, Jr. and J. Stephen O’Hara, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville; and Martin B. Unger of Swann & Haddock, Orlando, for appellants.
    Daniel Y. Sumner and David A. Yon, Department of Insurance, Tallahassee, for appellees.
   BOYD, Chief Justice.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Second Judicial Circuit, sitting in Leon County. An appeal of the judgment was taken to the First District Court of Appeal and that court certified the judgment to be of great public importance and to require immediate resolution by this Court. Having exercised our discretion to review the judgment, we have plenary jurisdiction of the appeal. Art. V, § 3(b)(5), Fla.Const.

The judgment before us on appeal held section 627.066, Florida Statutes (1981), commonly referred to as the automobile insurance excess profits law, constitutional. After carefully considering all of the appellants’ challenges to the validity of the law, we find it constitutional in all respects and therefore affirm the judgment of the circuit court.

The legislature first enacted the excess profits law in 1977. Ch. 77-468, § 23, Laws of Fla. That law required private passenger automobile insurers to file with the Department of Insurance forms containing information about earned premiums, losses and loss adjustment expenses, administrative and selling expenses incurred in Florida, and policyholder dividends. The law also required the insurers to file a schedule of their loss adjustment expenses for the three most recent accident years beginning with 1976. Excess profits were calculated to be amounts in excess of five percent of the anticipated underwriting profit. Finally, the law authorized the Department of Insurance to order the return of excess profits to policyholders and to exempt certain insurers from complying with the reporting requirements. Specifically, the law provided:

(6) If the insurer group has realized an excessive profit, the department may order a return of the excessive amounts to policyholders.
(7) In determining what action should be taken if excessive profits are realized, the department shall consider the following as they relate to Florida private passenger automobile insurance:
(a) The underwriting profit or loss of the insurer group in prior years.
(b) The financial strength and stability of the insurer group.
(c) The loss development patterns of the insurer group.
(8) The department may excuse an insurer from complying with these reporting requirements if the volume of business written by the insurer would not justify the expense of the reporting requirement.

§ 627.066(6)-(8), Fla.Stat. (1977).

After receiving an order to refund their excess profits, Government Employees Insurance Company, Liberty Mutual Fire Insurance Company, and Liberty Mutual Insurance Company filed suits in two circuit courts, seeking to have section 627.066 declared unconstitutional. Their main contention was that subsections six through eight gave the Department of Insurance unbridled discretion to order refunds of excess profits and therefore constituted an unconstitutional delegation of legislative authority. The trial judges in both cases agreed and granted the insurers’ motions for summary judgment, holding section 627.066 to be unconstitutional.

The department appealed and at the same time sought from the legislature an amendment to the statute to abolish the defects found by the circuit court judges. The legislature obliged by enacting Chapter 80-236, Laws of Florida. Section 26 of that chapter amended and renumbered subsections six through eight of section 627.-066 to provide as follows:

(7) If the insurer group has realized an excessive profit, the department shall order a return of the excessive amounts after affording the insurer group an opportunity for hearing and otherwise complying with the requirements of chapter 120. Such excessive amounts shall be refunded in all instances unless the insurer group affirmatively demonstrates to the department that the refund of the excessive amounts will render a member of the insurer group insolvent under the provisions of the Florida Insurance Code.
(8) The excessive amount shall be refunded on a pro rata basis in relation to the final compilation year earned premiums to the voluntary private passenger automobile policyholders of record of the insurer group on December 31 of the final compilation year.

§ 627.066(7) and (8), Fla.Stat. (1981). Section 27 of the law made these new provisions retroactive:

(13) Since it appears to the Legislature that private passenger automobile insurer groups have realized excessive profits during all or part of the years 1977,1978, and 1979 and that such profits were realized in part due to statutory changes for which rates were not adequately adjusted, it is the desire and intent of the Legislature that the provisions of this section, as amended by chapter 80-236, Laws of Florida, shall apply retroactively to excessive profits realized during the years 1977, 1978, and 1979. In the event that such retroactive application is judicially determined to be unconstitutional, it is the intent of the Legislature that the act be given prospective application as stated hereinafter. Prior to July 1, 1982, the data required by this section shall be submitted to the department for the years 1979, 1980, and 1981. Excessive profits shall be calculated in accordance with the provisions of this section. However, only the excessive profits realized by the insurer group in 1981 shall be refunded to policyholders, and such refunds shall be made in accordance with this section. Prior to July 1, 1988, the data required by this section shall be submitted to the department for the years 1980, 1981, and 1982. Excessive profits shall be calculated in accordance with this section; however, refunds shall only be made for excessive profits realized in the years 1981 and 1982. Thereafter, excessive profits shall be calculated and refunded on the basis of 3 years as set forth in this section.

§ 627.066(13), Fla.Stat. (1981).

When the department issued notices ordering the refund of excessive profits earned from 1977 through 1979, several insurance companies, including all of the appellants in this case, filed actions in circuit court, seeking to have the 1980 amendments declared unconstitutional. The trial court granted judgment on the pleadings in favor of the insurance companies on the ground that the 1980 law was unconstitutional in its retroactive application to excessive profits realized in the years 1977, 1978 and 1979 because it impaired rights and obligations under contracts entered into before the effective date of the law. The department appealed to the district court of appeal, which in turn certified the case to this Court as one of great public importance requiring immediate resolution by this Court. We reversed, finding that it was “the 1977 excess profits law, and not the 1980 amendments, that provides the basis for the department’s authority to order a return of excess profits.” Department of Insurance v. Teachers Insurance Co., 404 So.2d 735, 741 (Fla.1981). We reasoned that the insurance companies were unaffected by the 1980 amendments, which merely removed the department’s discretion not to order a refund, unless they could “allege and prove, which they have not, that but for the 1980 amendment, the department would not have initiated the refund orders.” Id.

When the case returned to the trial court, appellants amended their complaints to allege that but for the 1980 amendment the department would not have issued refund notices because the 1977 law had been declared unconstitutional. Before trial the trial court granted partial summary judgment, finding the 1977 law to be unconstitutional. However, at the end of the trial, the trial court entered a final judgment upholding the constitutionality of section 26, chapter 80-236 and finding that the appellants had failed to prove that the department would not have required the excess profits earned since 1977 to be refunded had section 23, chapter 77-468, Laws of Florida, not been replaced by section 26, chapter 80-236, Laws of Florida. The appellants appealed to the district court of appeal which certified the case to be of great public importance requiring immediate resolution by this Court.

Appellants argue that the department lacked the authority to issue refund notices under the 1977 law since it had been declared unconstitutional. They claim the department must abide by the earlier rulings that the 1977 law was unconstitutional since it dismissed its appeals in those two cases where it was held unconstitutional, and since it did not cross-appeal the lower court’s partial summary judgment reaffirming those earlier decisions. Appellants further argue that the 1977 law could not have served notice upon them that any excess profits earned from 1977 through 1979 would be subject to refund and that the 1980 amendment could not validate the earlier law nor be retroactively applied.

We do not agree with appellant’s assertions that the 1977 law cannot be used by the department as a basis for its authority to issue refund orders. The fact that the department dismissed its appeals from those earlier circuit court rulings rendered those judgments final and binding on the parties to those lawsuits. But the department is not precluded from arguing in the present litigation that the 1977 law is a valid source of authority. Even though we adhere to our ruling in Teachers on that point and even though it is not clear to us that the 1977 law was an improper delegation of legislative authority, we will now address the question we avoided in Teachers of whether 1980 amendment authorizing the department to order refunds of excess profits earned since 1977 is an unconstitutional impairment of contracts. See Art. I, § 10, Fla.Const. We hold that section 627.066(13), Florida Statutes (1981), does not violate this constitutional provision and that the department is therefore authorized to order refunds of excess profits earned since 1977.

In contract clause cases such as this, we have decided to adopt the method of analysis used by the United States Supreme Court. Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979). This method requires a balancing of a person’s interest not to have his contracts impaired with the state’s interest in exercising its legitimate police power. In a case similar to this the United States Supreme Court recently outlined the main factors to be considered in applying this balancing test.

The threshold inquiry is “whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.” Allied Structural Steel Co., 438 U.S. [234], at 244, 98 S.Ct. [2716], at 2722 [57 L.Ed.2d 727]. See United States Trust Co., 431 U.S. [1], at 17, 97 S.Ct. [1505], at 1515 [52 L.Ed.2d 92]. The severity of the impairment is said to increase the level of scrutiny to which the legislation will be subjected. Allied Structural Steel Co., 438 U.S., at 245, 98 S.Ct., at 2723. Total destruction of contractual expectations is not necessary for a finding of substantial impairment. United States Trust Co., 431 U.S., at 26-27, 97 S.Ct., at 1519-1520. On the other hand, state regulation that restricts a party to gains it reasonably expected from the contract does not necessarily constitute a substantial impairment. Id., at 31, 97 S.Ct., at 1522, citing El Paso v. Simmons, 379 U.S. 497, 515, 85 S.Ct. 577, 587, 13 L.Ed.2d 446 (1965). In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past. Allied Structural Steel Co., 438 U.S., at 242, n. 13, 98 S.Ct., at 2721, n. 13, citing Veix v. Sixth Ward Bldg. & Loan Ass’n, 310 U.S. 32, 38, 60 S.Ct. 792, 794-795, 84 L.Ed. 1061 (1940) (“When he purchased into an enterprise already regulated in the particular to which he now objects, he purchased subject to further legislation upon the same topic”). The Court long ago observed: “One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.” Hudson Water Co. v. McCarter, 209 U.S. 349, 357, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908).
If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, United States Trust Co., 431 U.S., at 22, 97 S.Ct., at 1517, such as the remedying of a broad and general social or economic problem. Allied Structural Steel Co., 438 U.S., at 247, 249, 98 S.Ct. at 2723-2725. Furthermore, since [Home Building & Loan Ass’n v.] Blaisdell, [290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413] the Court has indicated that the public purpose need not be addressed to an emergency or temporary situation. United States Trust Co., 431 U.S., at 22, n. 19, 97 S.Ct., at 1518, n. 19; Veix v. Sixth Ward Bldg. & Loan Ass’n, 310 U.S., at 39-40, 60 S.Ct., at 795-796. One legitimate state interest is the elimination of unforeseen windfall profits. United States Trust Co., 431 U.S. at 31, n. 30, 97 S.Ct., at 1522, n. 30. The requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests.
Once a legitimate public purpose has been identified, the next inquiry is whether the adjustment of “the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.” United States Trust Co., 431 U.S., at 22, 97 S.Ct., at 1518. Unless the State itself is a contracting party, see id., at 23, 97 S.Ct., at 1518, “[a]s is customary in reviewing economic and social regulation, ... courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.” Id., at 22-23, 97 S.Ct., at 1518.

Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400, 103 S.Ct. 697, 704-06, 74 L.Ed.2d 569 (1983) (footnotes omitted). In applying these factors, the United States Supreme Court held that a Kansas statute which imposed price controls on the sale of intrastate natural gas differing from the prices agreed to by the parties was not an unconstitutional impairment of contract. In reaching this decision, the Court emphasized “the fact that the parties [were] operating in a heavily regulated industry.” Id. 103 S.Ct. at 706. The Court also reasoned that Kansas had a legitimate state interest in exercising “its police power to protect consumers from the escalation of natural gas prices caused by deregulation.” Id. 103 S.Ct. at 708.

Similarly, in this case, the appellants are operating in a heavily regulated industry. See Florida Insurance Code, chapters 624-632, Florida Statutes (1981). For years the legislature has regulated the contents of insurance policies and has authorized the department to approve or disapprove insurance policy forms. See §§ 627.410, .411, .413, Florida Statutes (1981). Moreover, when chapter 77-468, Laws of Florida, was enacted, the insurers were put on notice that any funds received exceeding five percent of their anticipated profit under the statute might be subject to refund orders and therefore they did not obtain a vested right to those funds. Department of Insurance v. Teachers Insurance Co. Since section 627.066(13) allows insurers to keep their anticipated profits plus five percent, and since the insurers knew when they entered into these contracts that excess profits might have to be refunded, the statute does not operate as a substantial impairment of a contractual relationship.

Furthermore, what minimal impairment does exist is outweighed by the state’s interest in eliminating unforeseen windfall profits. Section 627.066(13) specifically states that excess profits were realized in the years of 1977-1979 due to statutory changes. These changes were made in response to escalating insurance costs in order to protect policyholders from paying exorbitantly high premiums. Changes were made to reduce the insurers’ costs of doing business so that these savings could be passed on to policyholders in the form of lower premiums. Since it was impossible to calculate in advance the precise impact the statutory changes would have on insurers’ earnings, the legislature deemed it fit to require the insurers to file information on their earnings and expenses and authorized the Department of Insurance to calculate and order refunds of any excess profits. We do not find this method of protecting policyholders from paying exorbitantly high premiums to be unreasonable.

Some of the appellants argue that section 627.066 violates equal protection by discriminating against small insurance companies and insurance companies with declining premiums. They presented evidence at the trial showing that such companies are subject to being required to refund a disproportionate share of the excess profits. They contend that smaller companies are more likely to reach the threshold requirements for refunding excess profits because they experience greater fluctuations in profits. They also presented evidence showing that because accounting practices mismatch revenues and expenses, companies with decreasing premiums will often show excess profits when there are actually none.

We find these arguments unpersuasive. The statute does not on its face classify insurers into different categories.

The proper classification for purposes of equal protection analysis is not an exact science, but scouting must begin with the statutory classification itself. Only when it is shown that the legislation has a substantial disparate impact on classes defined in a different fashion may analysis continue on the basis of the impact on those classes.

Califano v. Boles, 443 U.S. 282, 293-94, 99 S.Ct. 2767, 2774, 61 L.Ed.2d 541 (1979). Since the statute places all insurers in the same category, evidence pertaining to the disproportionate impact the statute may have on particular subgroups of insurers does not present a substantial question of whether the statute violates equal protection.

Next appellants argue that section 627.066 is not reasonably related to the legislative goal of protecting policyholders from exorbitantly high rates. They contend that the statute may actually cause higher rates by encouraging inefficient management and discouraging competition. The fact that a statute may not actually accomplish its intended goals is not a sufficient reason for declaring the statute unconstitutional. The test is whether the legislature at the time it enacts the statute has a reasonable basis for believing that the statute will accomplish a legitimate legislative purpose. See In re Estate of Greenberg, 390 So.2d 40 (Fla.1980); Northridge General Hospital v. City of Oakland Park, 374 So.2d 461 (Fla.1979). In this case the legislature believed that because of changes in the insurance laws, some insurers would benefit greatly and earn profits far in excess of what was anticipated when their rates were approved. We find the legislature had a reasonable basis for believing that authorizing the department to order refunds of such excess profits would protect policyholders from paying exorbitantly high rates.

Some of the appellants also argue that the statute is unconstitutionally vague and ambiguous. Specifically, they claim that the terms “due recognition of investment income” and “loss development factor” are so vague that persons of common intelligence must guess at their meaning. However, there was evidence that these terms denote actuarial concepts that have a specific meaning. Because these concepts can be specifically defined and consistently applied, they are not unconstitutionally vague or ambiguous. See Florida Welding & Erection Service, Inc. v. American Mutual Insurance Co., 285 So.2d 386 (Fla.1973).

The next point on appeal is that section 627.066 is unconstitutional because it contains an irrebuttable presumption that insurers who earn excess profits are charging exorbitantly high premiums. In statutes regulating economic matters, a legislative presumption does not constitute a denial of due process if there is some rational connection between the fact proved and the ultimate fact presumed. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). Since we have already found that there is a reasonable basis for believing that section 627.066 serves the purpose of protecting policyholders from exorbitantly high rates, it follows that this section does not contain an unconstitutional irrebuttable presumption.

Finally, appellants argue that chapter 80-236 violates the requirement of article III, section 6, of the Florida Constitution that every law shall embrace only one subject. We find this argument to be without merit. Sections 26 and 27 of chapter 80-236 pertain, along with the rest of chapter 80-236, to the general subject of insurance. Thus the law does not embrace more than one subject. Moreover the effect of sections 26 and 27 is briefly expressed in the title of chapter 80-236. We see no infirmity under article III, section 6. See The Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969).

We find section 627.066, Florida Statutes (1981), to be consistent with constitutional requirements. The judgment of the circuit court is therefore affirmed.

It is so ordered.

OVERTON, ALDERMAN and SHAW, JJ., concur.

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

McDONALD, Justice,

concurring in part/dissenting in part.

I agree that chapter 80-236, Laws of Florida, is constitutional for all insurance contracts entered into after its effective date, June 27,1980. I concede that there is a valid argument that it may apply to proceeds received by insurance carriers after that date even though the contracts for those proceeds antedated this chapter. I fervently disagree, however, that this 1980 statute can reach back and mandate a return of monies received by an insurance carrier before June 27, 1980. Chapter 77-468, section 23, Laws of Florida, which sought to require a refund, cannot support the refund because it was and is an invalid law. It has no effect.

The insurance companies and their insureds contracted for insurance coverage. The companies earned their premiums by furnishing the insurance coverage. The obligations were fixed. To require a refund of premiums already received is a clear violation of the constitutional prohibition against enacting a statute which impairs an existing contract. I don’t think anyone would seriously suggest that had the legislature authorized an insurance company to assess its policyholders for additional premiums because its losses were too great such a statute would be constitutional. Certainly not, because that too would have impaired contracts. It works both ways.