author: PER CURIAM.

text:
    Vernon Ray COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 59970.
    Supreme Court of Florida.
    July 14, 1983.
    Rehearing Denied Oct. 10, 1983.

      Judith J. Dougherty, Sp. Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Vernon Cooper was convicted of first-degree murder and sentenced to death in 1974. We affirmed his conviction and sentence, Cooper v. State, 336 So.2d 1133 (Fla.1976), and the Supreme Court of the United States denied his petition for certiorari, Cooper v. Florida, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). Subsequently, Cooper filed a motion for postconviction relief which was denied by the trial court after an evidentiary hearing. He now appeals the denial of his request for postcon-viction relief. We affirm.

Among the issues which were raised in the proceeding below and which are renewed here are suggestions that counsel was ineffective at Cooper’s trial and that the trial court violated the dictates of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), in limiting the introduction of mitigating evidence relevant to Cooper’s character, his record, and the circumstances of his offense.

The issue of ineffective assistance of counsel at Cooper’s original trial was explored extensively at the hearing on Cooper’s 3.850 motion. The trial court concluded that counsel was not ineffective. We have reviewed the record to determine whether this finding is supported by competent substantial evidence. The argument between Cooper and the State on this issue boils down to a verbal dispute as to whether counsel was extraordinarily canny (as the State suggests) or unwittingly negligent (as Cooper suggests). Both arguments are abstractly persuasive, but, in light of the facts developed at the evidentiary hearing and applying the standard we announced in Knight v. State, 394 So.2d 997 (Fla.1981), we have little difficulty in concluding that the trial judge properly rejected Cooper’s claim of ineffective assistance of counsel.

The other issues now presented were either raised or could have been raised in the original proceedings and are not appropriate matters for collateral attack. Hargrave v. State, 396 So.2d 1127 (Fla.1981); Washington v. State, 397 So.2d 285 (Fla.1981); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Cf. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Only one of these issues merits discussion. This is Cooper’s claim that the trial court violated the dictates of Lockett by unduly restricting the introduction of evidence relevant to nonstatutory mitigating circumstances. In his initial appeal from his conviction and sentence, Cooper raised the question of whether certain evidence he had proffered was probative and relevant to the statutory mitigating factors, and we answered this question in the negative. He now attempts again to raise the issue of relevancy of this evidence but on a different basis than originally argued in his direct appeal.- He contends that Lockett, decided subsequent to his trial and appeal, compels a reversal of his sentence. When his original appeal was taken to this Court, however, Florida’s law was consistent with the pronouncement of Lockett. In Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), we held that the wording of the death penalty statute and the construction placed by this Court on that statute indicate unequivocally that the list of mitigating factors contained in this statute is not exhaustive. We referred to our earlier decisions in Buekrem v. State, 355 So.2d 111 (Fla.1978); Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers r. State, 339 So.2d 204 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976); and Halliwell v. State, 323 So.2d 557 (Fla.1975), among others, to demonstrate this Court’s constant view that all relevant circumstances may be considered in mitigation and that the statutory factors merely indicate principal factors to be considered. We made clear that Lockett did not change the law in Florida since our law preexisting Lockett was consistent with the dictates of Lockett.

Balancing the goals of the criminal justice system of ensuring finality of decisions and of ensuring fairness and uniformity in individual cases, in Witt v. State, we addressed the question of the significance of a change in decisional law on the finality of a fully adjudicated capital case. We explained the nature of a change of law that would be considered in a capital case under Rule 3.850 and said that this change of law must emanate from this Court or the Supreme Court of the United States, must be constitutional in nature, and must constitute a development of fundamental significance. Lockett did not change the law of Florida. Thus, Cooper, if he wanted to claim that the trial court unduly restricted the introduction of evidence relevant to nonstatutory mitigating circumstances, should have raised this claim on direct appeal. Having failed to do so, he may not now raise this claim for the first time in a Rule 3.850 motion. Postconviction proceedings are not intended to afford defendant a second appeal of matters that were or could have been raised on direct appeal, and a defendant cannot argue on appeal the relevancy of evidence on one ground and then by collateral attack again argue the relevancy of that evidence on a different ground.

Accordingly, the trial court’s denial of postconviction relief is affirmed.

It is so ordered.

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

OVERTON and McDONALD, JJ., concur in conviction, but dissent from sentence.

       We incidentally note that the trial court did in fact allow some testimony relevant to nonstatu-tory mitigating factors.


source: Caselaw Access Project

author: PER CURIAM. McDONALD, Justice,

license: Public Domain

text:
    Ernest FITZPATRICK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 60097.
    Supreme Court of Florida.
    July 21, 1983.
    Rehearing Denied Oct. 13, 1983.

      P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr. and Gregory C. Smith, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant Ernest Fitzpatrick was convicted of first-degree murder, two counts of attempted first-degree murder, and three counts of kidnapping. The trial judge imposed a death sentence for the crime of first-degree murder, concurrent sentences of life imprisonment for each attempted murder, and concurrent sentences of thirty years imprisonment for each of the kidnapping offenses. We have jurisdiction to review this case under article V, section 3(b)(1), of the Florida Constitution. We affirm the convictions, the separate kidnapping sentences, and the sentence of death.

On April 29, 1980, appellant entered a realty office with a .38 caliber revolver taped to his hand. He accosted a secretary named Mary Blake and told her he wanted to use her as a shield and take her to a bank located a block away. When she resisted and screamed, he threatened to shoot her in the leg. He took her down a hallway toward the back of the building and rounded a corner. A delivery boy, Eric Shaw, entered the front door and walked down the same hallway, looking for someone to sign a receipt. When he turned the corner appellant pointed the revolver at him and told him not to run or else he would shoot him. Holding Blake around the waist and alternately pointing the pistol at her and at Shaw, appellant forced his two hostages back down the hallway in order to lock the front door. Shaw went to the front door but could not lock it because he did not have a key. He then re-joined appellant and Blake in the hallway.

Meanwhile, David Parks, who was in a nearby office when appellant entered the building, called the sheriff. Emerging from his office and trying to keep his voice as calm as possible, Parks asked Mary Blake what was wrong and if he could help her. Appellant pointed the gun at Parks and told him not to come any closer. Parks offered appellant the keys to his car and some money. Appellant refused, saying he wanted Blake to go with him. Appellant then marched his three hostages into the main office adjoining the reception area. Appellant sat on a desk chair next to the window in a partition between the main office and the reception area and forced Blake to sit on his lap. He told Shaw to lock the office door and ordered him and Parks to sit down at opposite walls. Appellant said that he would have to shoot the police when they arrived and then shoot his hostages and himself.

Within ten minutes of Parks’ phone call, two sheriff’s deputies arrived and entered through the front door. The senior one, Deputy Smith, saw Shaw through the open partition and motioned to him to be quiet. Deputy Smith crept down the hallway and tried turning the handle to the office door. Upon finding it was locked he bumped the door a couple of times and announced that he was from the sheriff’s department. He heard several voices shout and shots fired. One bullet passed through the wall near his head.

At about the time Deputy Smith stopped knocking, Deputy Heist pointed his gun through the partition and ordered appellant to freeze. Appellant swung around in the chair and shot Deputy Heist in the head, killing him. Shaw unlocked the office door and ran out while Parks jumped appellant, attempting to wrestle the gun away from him. As they fell to the floor struggling, Mary Blake escaped from the office. Appellant fired more shots, hitting Parks in the head. Then he pushed Parks away, stood up, and tried to fire his gun again, but the revolver was empty. Deputy Smith, who had entered the office, fired two shots, hitting appellant in the shoulder.

Appellant was charged with and convicted of the first-degree murder of Deputy Heist, the attempted first-degree murders of Deputy Smith and David Parks, and the kidnappings of Parks, Mary Blake, and Eric Shaw. In accordance with the jury’s recommendation the trial judge imposed a sentence of death.

As his first point on appeal appellant argues that he was denied a fair trial in violation of the sixth amendment to the United States Constitution when the trial court refused to excuse four veniremen for cause and refused to grant him additional peremptory challenges. He claims that he was forced to use four of his ten peremptory challenges to excuse veniremen who were biased in favor of the death penalty. During voir dire two of the veniremen stated that the death sentence was appropriate for anyone who committed murder, a third felt death was appropriate if there were eyewitnesses to the murder, and the fourth felt that the death sentence should be imposed anytime a police officer is shot in the line of duty. These statements were made in response to defense counsel’s questioning the prospective jurors about their general feelings concerning the death penalty. When the prosecuting attorney explained that under Florida law the death penalty is not automatic under any situation and asked if they would be able to follow the court’s instructions and weigh the aggravating circumstances against the mitigating circumstances in making their recommendation, they all said they could.

This case is unlike Thomas v. State, 403 So.2d 371 (Fla.1981), where we reversed a defendant’s conviction because the trial judge refused to excuse for cause a venireman who conceded that he could not recommend any kind of mercy under any circumstances if the defendant were found guilty of murder. In this ease none of the four veniremen ever indicated that he was unalterably opposed to recommending life sentences for convicted murderers. Their statements only indicated a tendency toward being in favor of the death penalty. “A man who opposes the death penalty, no less than the one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968) (emphasis added). Witherspoon requires that veniremen who oppose the death penalty be excused for cause only when irrevocably committed before the trial to voting against the death penalty under any circumstances or where their views on capital punishment would interfere with finding the accused guilty. We find that the same standard should be applied when excusing for cause a venireman who is in favor of the death penalty. A judge need not excuse such a person unless he or she is irrevocably committed to voting for the death penalty if the defendant is found guilty of murder and is therefore unable to follow the judge’s instructions to weigh the aggravating circumstances against the mitigating circumstances.

Appellant’s argument that he had an insufficient number of peremptory challenges is premised on the assumption that he unnecessarily used four of them to excuse the above-mentioned veniremen. At oral argument appellant’s counsel conceded that there is nothing in the record to show that if appellant had been given more he would have used them. Since we find that the trial judge did not abuse his discretion in declining to excuse for cause the four veniremen, there is no basis for holding that appellant had an insufficient number of peremptory challenges. We therefore hold that appellant’s right to a fair trial by an impartial jury under the sixth amendment was not violated.

Appellant’s next point on appeal is that the court erred in entering judgments and sentences for the three counts of kidnapping. Appellant argues that Florida’s kidnapping statute does not apply where the victim is moved an insignificant distance in a short period of time. See Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980). He contends that the emerging trend is to narrowly construe kidnapping statutes so that they do not apply where the kidnapping is inherent in or “merely incidental” to the commission of another crime. See, e.g., People v. Daniels, 71 Cal.2d 1119, 80 Cal. Rptr. 897, 459 P.2d 225 (1969); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. denied, '381 U.S. 938, 85 S.Ct. 1770,14 L.Ed.2d 701 (1965); State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979).

We recently analyzed these and other cases and concluded that “the ‘merely incidental’ rule does not apply in situations where the purpose in confining or moving another person is to use that person as a hostage.” Mobley v. State, 409 So.2d 1031, 1036 (Fla.1982) (footnote omitted). In Mob-ley we affirmed the kidnapping convictions of three prisoners who held two guards and an attorney as hostages during an attempted escape. We noted that although the prisoners “were not charged with confining the victims with the intent of using them as hostages, evidence that they did use them as hostages is relevant and sufficient proof that the kidnappings were not incidental to the attempted escape.” Id. at 1037. Unlike in Mobley, appellant in this case was charged under that portion of the statute that defines kidnapping as the unlawful confining of another person against his will with the intent of holding him as a shield or hostage. See § 787.01(l)(a)l, Fla.Stat. (1979). Since there is sufficient evidence to show that appellant confined the victims against their will with the intent to use them as shields or hostages, he committed a kidnapping regardless of the distance the victims were moved or the time they were held. Furthermore the kidnappings in this case were not “merely incidental” to the commission of another crime. See Faison v. State, 426 So.2d 963 (Fla.1983). We therefore find there was no error in entering separate judgments and sentences for the three counts of kidnapping.

Next appellant asserts that there was insufficient proof of premeditation to support his convictions for first-degree murder and attempted first-degree murder. This assertion is belied by appellant’s statements to the three hostages that he was going to shoot them after shooting the police. The record shows that he did indeed begin shooting after the police had announced their presence. We thus find there was sufficient evidence of premeditation to support these convictions.

We now turn to the sentencing phase of the trial. Appellant first argues that the jury was unduly influenced by the judge’s instructing them that two of the statutory aggravating circumstances did not apply. He contends that this instruction implied that the judge felt that all the other aggravating circumstances were applicable.

We do not find any error. The aggravating circumstances which the judge instructed the jury not to consider were whether appellant was under sentence of imprisonment and whether he had previously been convicted of a felony involving the use or threat of violence to another person. Unlike some of the other aggravating circumstances which require some finding be made as to a defendant’s subjective intentions for committing a murder, these two aggravating circumstances depend upon factors which can be objectively determined. Since at the time of the sentencing hearing appellant had not been convicted of a prior felony nor was he under sentence of imprisonment, the trial judge correctly concluded that these two aggravating circumstances did not exist as a matter of law at the time the jury was to consider its recommendation. More important, the judge instructed the jury that an aggravating circumstance had to be established beyond a reasonable doubt and that if any aggravating circumstances were found to exist they would have to be weighed against the mitigating circumstances. These additional instructions dispensed with any possible implication that the judge felt all the remaining aggravating circumstances were applicable.

After the jury returned with its advisory recommendation of a death sentence, the trial judge issued his written findings of fact. The judge found that the aggravating circumstance in section 921.141(5)(b), Florida Statutes (1979), was proven. That aggravating circumstance is, “The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” Id. The judge grounded this finding on the two attempted murder convictions and three kidnapping convictions in this case. The judge also found that, “The defendant knowingly created a great risk of death to many persons.” § 921.141(5)(c), Fla.Stat. (1979). The judge based this on the defendant’s shooting at not only the murder victim but also at two other men, along with his holding others hostage at gunpoint, causing numerous armed deputies to proceed to his location. The judge also found that the murder was committed while the defendant was engaged in commission of the felony of kidnapping, id., § 921.141(5)(d), based on the proven facts of the case. The judge found further that the murder was committed for the purpose of avoiding or preventing his arrest by Deputy Heist. Id., § 921.-141(5)(e). The judge found that section 921.141(5)(f), that “the capital felony was committed for pecuniary gain” applied in that the entire incident grew out of appellant’s attempt to use hostages to aid him in the robbery of a bank.

Regarding the statutory mitigating circumstances of section 921.141(6), Florida Statutes (1979), the judge found that none of them had been shown. Statutory mitigating circumstance (6)(a), lack of a significant history of criminal activity, was negated, the judge found, by appellant’s serious acts of delinquency while a juvenile. The judge found that there was no extreme mental or emotional disturbance under section 921.141(6)(b), and found that testimony showed the defendant to have been in complete control of his behavior. The judge found that there was no consent or participation by the victim, id., § 921.141(6)(c), no major participation or domination by an accomplice, id., § 921.141(6)(d), (e), and no impairment of appellant’s capacity to appreciate the criminality of his acts or to conform his conduct to the requirements of the law. Id., § 921.141(6)(f). Finally, the judge found that appellant’s age of twenty years at the time of the crime was not a mitigating factor because he was mature enough to have been on his own for several years.

Regarding possible nonstatutory mitigating circumstances, the judge found that there were none, rejecting arguments based on appellant’s unfavorable background and the failure of state rehabilitation authorities to intervene.

Even though the trial judge did not instruct the jury on the aggravating circumstance of whether appellant had previously been convicted of a felony involving the threat or use of violence to another person, he himself found it to be an aggravating circumstance. He did so on the basis of the contemporaneous convictions for kidnapping and attempted first-degree murder. This was proper. See Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981); Lucas v. State, 376 So.2d 1149 (Fla.1979).

The judge also properly found that appellant knowingly created a great risk of death to many persons. See Lucas v. State; Raulerson v. State, 358 So.2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978). The murder occurred during a raging gun battle with the police with three hostages present.

There is no question that the murder was committed while appellant was engaged in the commission of a felony, in this case kidnapping, and that it was committed for the purpose of avoiding or preventing a lawful arrest. The finding that the murder was committed for pecuniary gain is supported by the trial court’s finding that appellant had planned a bank robbery for several months and had proceeded as far as the hostage stage before he was interrupted. The fact that the robbery was never completed is irrelevant so long as there was an attempt. See Mikenas v. State, 367 So.2d 606 (Fla.1978).

Appellant next challenges the judge’s refusal to find any of the statutory mitigating factors present. He claims that he had no significant history of prior criminal activity as an adult. However, he had attempted an armed robbery and a bombing of a school when he was minor. Since the purpose of this mitigating factor is to help ascertain a defendant’s character, we do not believe that a trial judge should be limited to looking at a defendant’s adult criminal activity. A defendant’s juvenile record can be just as relevant in determining the defendant’s character. Because appellant’s prior criminal activity as a minor was significant, the judge properly found this not to be a mitigating factor.

Appellant also argues that his emotional condition should have been considered as a mitigating circumstance under subsections 921.141(6)(b), (e), and (f), Florida Statutes (1979). There was lay testimony that appellant had mental problems. This was corroborated by a clinical psychologist’s testimony that appellant was someone of dull-normal intelligence with grandiose feelings and by a psychiatrist’s testimony that appellant had a schizoid personality. All of this testimony was considered and rejected by both the jury and the judge. That decision was theirs and not ours to make. Since there was nothing in the record to indicate that their conclusions or the methods followed in reaching them were improper, we accept their conclusions. Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984,102 S.Ct. 2260, 72 L.Ed.2d 864 (1982); Lucas v. State; Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Appellant argues that the court erred in not finding his age, twenty years, to be a mitigating circumstance. “There is no per se rule which pinpoints a particular age as an automatic factor in mitigation.” Peek v. State, 395 So.2d 492, 498 (Fla.), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). In this case the record supports the judge’s decision not to consider appellant’s age as a mitigating circumstance.

Finally appellant argues that his right against double jeopardy was violated by the judge’s imposing separate sentences for the three counts of kidnapping. He relies on State v. Pinder, 375 So.2d 836 (Fla.1979), where this Court held that in a felony-murder prosecution, the double jeopardy clause bars separate conviction and sentence for the underlying felony. In State v. Hegstrom, 401 So.2d 1343 (Fla.1981), we receded from Pinder’s holding that separate convictions could not be entered, but held that section 775.021(4), Florida Statutes (1979), prevented the imposition of a separate sentence for the underlying felony in a felony-murder prosecution. That principle does not apply in this case, however, since there was sufficient proof of premeditation. See Tafero v. State, 403 So.2d 355 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982).

We therefore affirm appellant’s convictions, the separate sentences for kidnapping, and the sentence of death.

It is so ordered.

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

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

McDONALD, Justice,

concurring in part/dissenting in part.

I concur in the judgment of conviction but am unable to do so in the sentence of death. The trial judge erred in finding that Fitzpatrick’s killing of the deputy sheriff was for pecuniary gain. While it is true that the deputy interrupted Fitzpatrick’s grandiose and bizarre plan to rob a bank, that factor does not convert his slaying into one for pecuniary gain, directly or indirectly. No robbery was in progress when this took place.

I also feel that the trial judge erred when he failed to find both statutory and non-statutory mitigating circumstances. The evidence was not in dispute on the character and background of Fitzpatrick. It clearly demonstrated a strong personality disorder. His juvenile record reflected a continuing inability to adapt to living in conformity with rules. He thought himself a “genius” and was constantly “inventing” things and seeking patents on them, only to find them constantly rejected. This dull normal black boy, the eighth of thirteen children, was himself rejected by his mother. As stated by the psychologist, “his thinking was indeed impaired and that impairment, according to a degree, was relatively severe, not so severe that he did not understand the consequences of his actions, but severe enough that in my opinion they played a part in his acting very impulsively without proper forethought and setting himself up again for failure and punishment.” The testimony is replete with episodes clearly indicating that he suffered from stress and acted under compulsion and with gross impaired thinking. As a juvenile he had been placed in a mental hospital and had attempted suicide.

Fitzpatrick is dangerous. In all likelihood he should never be on the streets again. Nevertheless, I do think there are mitigating circumstances in his case, and that, together with an improperly found aggravating circumstance dictates a remand for reconsideration of the sentence.

OVERTON, J., concurs.


author: BOYD, Justice.

text:
    Dan FORBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 62302.
    Supreme Court of Florida.
    July 28, 1983.
    Rehearing Denied Oct. 10, 1983.

      Alan H. Schreiber, Public Defender and T. Don Tenbrook, Asst. Public Defender, Seventeenth Judicial Circuit, Fort Lauder-dale, for petitioner.
    Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

This case is before the Court for review of the decision in Forbert v. State, 415 So.2d 96 (Fla. 4th DCA 1982). The district court certified four questions passed upon by the decision as being of great public importance. We have jurisdiction. Art. Y, § 3(b)(4), Fla. Const.

Forbert pled guilty to a charge of robbery in exchange for a “split sentence” of five years imprisonment and three years’ probation. He subsequently filed a motion pro se to correct his sentence on the authority of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). The attorney appointed to represent For-bert at the hearing on the motion argued that resentencing Forbert to any term of imprisonment longer than five years would be a violation of Forbert’s constitutional rights to be free from double jeopardy and of due process and would also be outside the limit on incarceration contemplated in the original plea agreement. Nevertheless the court resentenced Forbert to eight years in prison with credit for time served. On appeal the district court of appeal affirmed, certifying the following questions to be of great public importance:

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of [North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)]?
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce?
4. If the original sentence was imposed pursuant to and as part of a negotiated plea, in resentencing a defendant upon a Villery motion to correct an illegal sentence can the trial court impose a longer sentence of imprisonment than originally imposed without giving the defendant an opportunity to withdraw his negotiated plea?

415 So.2d at 97-98.

The first three questions are identical to those answered by this Court in Beech v. State, 436 So.2d 82 (Fla.1983), wherein we held that a judge in correcting a sentence rendered illegal by our decision in Villery may resentence the defendant to serve a term of imprisonment not longer than the combined terms of imprisonment and probation originally imposed without having to comply with the requirements of Pearce. As for the fourth question, we answer in the negative.

It is a well-established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea. Brown v. State, 245 So.2d 41 (Fla.1971); Rubenstein v. State, 50 So.2d 708 (Fla.1951). Hence when a defendant pleads guilty with the understanding that the sentence he or she receives in exchange is legal, when in fact the sentence is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the legality of the sentence. Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981); Britt v. State, 352 So.2d 148 (Fla. 2d DCA 1977). In Cleveland and Britt the defendants agreed to serve sentences exceeding the maximum sentences authorized for the crimes to which they pled guilty. Reasoning that the defendants had negotiated with a misunderstanding of the appropriate penalties, the courts ruled that the defendants were to be allowed to withdraw their pleas of guilty when challenging the illegal sentences. Cleveland went a step further and stated that the state could “exercise its option to accept the plea with the sentence reduced to a legal term.” 394 So.2d at 230. See also Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). Jolly reasoned that since the state may not have witnesses or other evidence available in cases where a defendant moves to withdraw his plea months or years after entering it, the state should have the option of either agreeing that the judgment and sentence should both be vacated or holding the defendant to his plea of guilty and vacating only the excessive portion of the sentence.

We agree with the reasoning of these decisions. In this case Forbert pled guilty with the understanding that the sentence he was to receive in exchange, five years’ imprisonment followed by three years of probation, was statutorily authorized. Because “split sentences” of this type were declared illegal by our decision in Vil-lery, Forbert had the right to have his sentence corrected so that it conformed to the law. When the judge indicated that he would resentence Forbert to eight years in prison, Forbert sought to withdraw his plea of guilty since such a sentence was not what he had bargained for. The court should then have either allowed Forbert to withdraw his plea, reinstating the charges originally filed against him, or should have resentenced him within the parameters of the plea agreement. He could have performed the latter by changing the term of incarceration exceeding one year to probation or by vacating the probation portion of the original sentence. Since Forbert, by moving to withdraw his plea of guilty, has indicated a desire to be no longer bound by the original plea agreement, if he renews his motion the state will also be released from its obligations under that agreement. Therefore if the court allows withdrawal of the plea the state can insist that the original charges be reinstated against Forbert. Peak v. State, 399 So.2d 1043 (Fla. 5th DCA 1981).

The trial court erred by denying For-bert’s motion to withdraw his plea of guilty. We therefore remand this case with instructions that Forbert be allowed the opportunity to renew his motion to withdraw his plea of guilty. If the judge declines to conform the sentence of imprisonment to the limits of the original plea agreement, then the motion to withdraw plea should be granted.

It is so ordered.

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

McDONALD, j., concurs in result only.


text:
    Roy Allen HARICH, Appellant, v. STATE of Florida, Appellee.
    No. 62366.
    Supreme Court of Florida.
    Aug. 25, 1983.
    Rehearing Denied Oct. 12, 1983.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen. and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The appellant, Roy Allen Harich, was convicted of first-degree murder, attempted first-degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. The trial judge imposed the death sentence in accordance with the jury’s advisory sentence recommendation for the first-degree murder conviction. The trial judge also sentenced appellant to a term of thirty years for attempted first-degree murder, fifteen years for the use of a firearm in the commission of a felony, and thirty years for each of the two kidnapping charges. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm the convictions, the imposition of the death sentence, and the sentences for the other offenses.

This cause concerns the brutal murder of one teenage girl, Carlene Kelley, and the attempted murder of a second teenage girl, Deborah Miller. Deborah, the surviving victim, testified at trial and stated that she and Carlene met the 22-year-old appellant at a filling station in Daytona Beach. The girls were in the process of walking to the pier when they stopped at the filling station, and they accepted appellant’s offer of a ride to their destination. Rather than going to the beach, however, Deborah stated that the group drove around town in appellant’s van and smoked a pipe of marijuana belonging to the girls. They later decided to go to the woods where appellant was growing several marijuana plants to obtain some more marijuana. On the way, they stopped at a convenience store and purchased a six-pack of beer. When they arrived at appellant’s marijuana patch, they found that the marijuana leaves were damp so they placed the leaves on the van’s engine cover to dry. They waited and talked for about an hour while trying to dry the leaves. Deborah then asked if they could leave, and they got into the van and departed,

Deborah testified that appellant drove only a few yards down the deserted road before he stopped the van, held a gun on the girls, and ordered them to undress. He forced Carlene Kelley to perform fellatio on him. Deborah further testified that, though she did not actually see the act, she heard sounds which indicated that appellant also had sexual intercourse with Carlene. Appellant then told the girls to get dressed, which they did. As they started to walk away, appellant said that it was a long walk through the woods and that he would give them a ride, promising not to do anything more to them. The girls acquiesced and got back into the van.

Appellant drove them about a quarter of a mile before Carlene said she needed to use the bathroom. Appellant stopped the van and told Deborah and Carlene that they could walk the short distance to the road, but they should lie down behind the van while he drove away. They complied with this direction and lay down on their stomachs. Deborah stated that Carlene began to cry and beg appellant not to shoot her. Deborah looked up and saw that appellant had wrapped a towel around the barrel of his gun. Appellant told Carlene he would not shoot her if she was quiet, but immediately shot her in the back of the head. He also shot Deborah in the back of the head. Deborah further testified that Carlene was still alive after the shooting and that both she and Carlene were crying softly when she saw the appellant return carrying a knife. Deborah described how he stood behind her, lifted her head by her chin, and began cutting her neck with the knife; she tried to protect herself with her hands. Appellant left Deborah and cut Carlene’s throat, severing her spinal cord and causing instantaneous death.

Deborah did not lose consciousness, and after concluding that Carlene was dead, she crawled and dragged herself out of the woods onto the side of the highway where she was found by a passing motorist. Medical testimony reflected that Deborah had a bullet wound in the back of her head and a severe laceration that extended across her neck, all the way through the neck in the posterior area, almost to the backbone, and all the way through the musculature in the anterior of the neck, down to the midline where the windpipe was severed. The emergency room doctor observed that, when Deborah arrived at the hospital, she was literally holding her head on with her hands. He testified that, in his opinion, it was almost unbelievable that Deborah could sustain this severe an injury and survive. At the hospital, Deborah was able to tell the police that her attacker was named Roy, and she provided a physical description of both the man and his van. She was the primary witness for the state and was able to identify appellant at trial.

Appellant testified in his own behalf, stating that he had consumed a substantial amount of beer and smoked marijuana that evening. He admitted picking up the girls at the filling station and driving them to a deserted area in the woods to pick marijuana. He testified that they waited in the woods for more than an hour while trying to dry the marijuana leaves, and that, when Deborah Miller asked if they could leave, they got into the van and departed. Appellant denied the sexual battery of Carlene Kelley, her murder, and the attempted murder of Deborah Miller. He stated that he drove the girls out of the woods and dropped them off at a nearby convenience store so they could call a friend for a ride home.

The jury found appellant guilty of the first-degree murder of Carlene Kelley; the attempted first-degree murder of Deborah Miller; the use of a firearm in the commission of a felony; and two counts of kidnapping.

In the penalty phase, appellant presented a clinical psychologist who testified that, though appellant was competent at the time of the offense, he was operating at that time under the influence of extreme mental or emotional disturbance because of his consumption of substantial amounts of drugs and alcohol. Appellant called character witnesses who testified that appellant worked very effectively as a volunteer fireman and that he had been a model prisoner while confined in jail before his trial.

The state presented as evidence in the penalty phase the testimony of two law enforcement officers, Sergeants Vail and Burnsed, concerning statements appellant had made during interrogation; these statements had been suppressed during the guilt phase of.the trial. The trial judge decided to admit these statements into evidence under the more liberal evidentiary standard of the penalty phase established in section 921.141(1), Florida Statutes (1981). At the conclusion of the penalty phase, the jury voted nine-to-three to recommend imposition of the death penalty.

The trial judge agreed with the jury and imposed the death penalty, finding as aggravating circumstances (1) that appellant murdered Carlene Kelley while he was committing or attempting to commit the crimes of sexual battery and kidnapping; (2) that he killed Carlene Kelley for the purpose of avoiding and preventing his lawful arrest; (3) that the killing of Carlene Kelley was especially heinous, atrocious, and cruel; and (4) that the capital felony was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification. The trial court found one mitigating circumstance, specifically, that appellant had no significant prior history of criminal activity.

Regarding the guilt phase of the trial, appellant asserts (1) that the evidence was insufficient as a matter of law to establish premeditation; (2) that the trial court committed reversible error in allowing testimony of five rebuttal witnesses over defense objection; and (3) that the prosecutor improperly commented on defense trial tactics in his final argument. We find the testimony of Deborah Miller clearly establishes premeditation, that there was no error in admitting the rebuttal testimony, and that the argument of the prosecutor, although possibly bordering on the improper, was not prejudicial, nor did it constitute reversible error. We affirm all of appellant’s convictions.

With regard to the sentencing phase of the trial, appellant contends (1) that the trial judge improperly allowed the state to present evidence of appellant’s statements which had previously been suppressed by the trial judge; (2) that the prosecutor engaged in improper argument during the penalty phase; (3) that the standard jury instruction used in the penalty phase is improperly worded to require seven votes to recommend the imposition of a life sentence; (4) that the trial judge erred in applying the four aggravating factors to this murder; (5) that it was reversible error for the trial judge to refuse to order a presentence investigation report; and (6) that our capital sentencing statute is unconstitutional.

In regard to appellant’s first contention, we find no reversible error. The trial judge, in allowing certain previously-suppressed statements of appellant to be introduced during the penalty phase through the testimony of Sergeants Vail and Burnsed, acted under the authority of section 921.-141(1). This section provides in part that, during the penalty phase,

evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances .... Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida.

(Emphasis added.) It is clear that whenever evidence is suppressed because it was secured in violation of the fourth or fifth amendment, this statute prohibits its introduction during the penalty phase unless there is an appropriate exception as in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). We find that the court erred by admitting these statements into evidence after previously suppressing them, but we also find that the admission was not reversible error because substantially all of the information contained in those statements had already been presented to the jury in testimony relating to unsuppressed statements of appellant and in appellant’s own testimony.

The only new information contained in the state’s penalty-phase testimony was appellant’s statement that he had thrown his gun into the canal. Given all the other testimony and evidence in this cause, including the graphic testimony of the surviving victim, this one additional item concerning the gun was not critical or substantial and did not prejudice appellant in the sentencing phase. In considering the argument that this information was prejudicial to appellant, it should be remembered that the jury in the penalty phase was the same jury that found appellant guilty of murder and rejected appellant’s testimony that he left the two girls alive at the convenience store.

The second point that merits discussion concerns the assertion by appellant that the instruction in the penalty phase deprived him of the life recommendation benefit in a tie vote situation. The trial judge in this instance instructed the jury in accordance with the Florida Standard Jury Instructions (Criminal) Penalty Proceedings-Capital Cases, F.S. 921.141 (rev. June, 1981):

If a majority of the jury determine that the defendant should be sentenced to death, your advisory sentence will be:

A majority of the jury by a vote of - advise and recommend to the court that it impose the death penalty upon the defendant.
On the other hand, if by six or more votes the jury determines that the defendant should not be sentenced to death, your advisory sentence will be:
The jury advises and recommends to the court that it impose a sentence of life imprisonment upon the defendant without possibility of parole for twenty-five years.
You will now retire to consider your recommendation. When seven or more of you are in agreement as to what sentence should be recommended to the court, that form of recommendation should be signed by your foreman and returned to the court.

We recognize that the concluding sentence of the last paragraph of the instruction is inconsistent with the directions contained in the body of the instruction. The concluding sentence should read:

When seven or more of you are in agreement to recommend the imposition of the death sentence or when six or more of you are in agreement to recommend life imprisonment without the possibility of parole for twenty-five years, then the appropriate form of recommendation should be signed by your foreman and returned to the court.

The body of the instruction is correct, and in this case there was neither an objection nor a suggested modification of the last sentence of the instruction by appellant’s counsel. The jury returned a death recommendation by a nine-to-three vote, and there is nothing in this record to show that the jury was confused by the instruction. In view of the jury’s vote, we find no prejudice.

We have fully considered appellant’s contentions that the prosecutor’s argument was improper, that the aggravating factors should not have been applied, that the trial judge should have ordered a pre-sentence investigation report, and that our death penalty statute was unconstitutionally applied in this case. We find that these arguments have no merit and that they do not require discussion.

For the reasons expressed, we affirm appellant’s conviction for each of the offenses and expressly find that the death penalty is an appropriate punishment in this case.

It is so ordered.

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

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

McDONALD, Justice,

concurring in part and dissenting in part.

This appellant was properly convicted. I disagree, however, on the imposition of the death penalty.

I believe an improper aggravating circumstance was found in that the evidence is insufficient to prove beyond a reasonable doubt that Harich killed for the purpose of avoiding and preventing lawful arrest. The trial judge correctly found that Harich had no significant history of prior criminal activity. The testimony of the psychologist who testified that when Harich committed his crimes he was under the influence of extreme mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct or to confirm his conduct to the requirements of law was substantially impaired, was not contradicted or substantially impeached. I feel that Harich should have been given the benefit of these mitigating circumstances. The appellant also presented nonstatutory mitigating evidence. The trial judge made no reference to this; hence, I cannot tell whether he found this evidence to have no probative value, felt it to have no weight, or simply ignored it.

The acts of this appellant were indeed egregious. Nevertheless, when considering the fact that he had no criminal record, had a temporary mental or emotional disturbance, temporarily lacked the capacity to conform to the requirements of law (even though legally sane) and was a person who was not only regularly employed but was a voluntary fire fighter, the death penalty is disproportionate to his circumstances. I would vacate his sentence of death with instructions to impose a life sentence.


text:
    James Roger HUFF, Appellant, v. STATE of Florida, Appellee.
    No. 59989.
    Supreme Court of Florida.
    Sept. 1, 1983.

      Robert Q. Williams and Christopher J. Smith of Williams & Smith, Tavares, for appellant.
    Jim Smith, Atty. Gen. and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of the trial court imposing two sentences of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and we reverse.

On April 21,1980 Norman and Genevieve Huff were found shot to death in a remote area of Sumter County, near Wildwood, Florida. The victims’ son, James Roger Huff (the appellant), was the first person to report the killing of his parents to a nearby resident. Appellant told the resident that some men had run their car off the road, knocked him unconscious, robbed and then murdered his parents. At the time, appellant appeared upset and had sand on his forearms but no blood was visible on his person. Appellant was taken into custody at the crime scene and transported to the Sumter County jail. On the drive to the jail, the deputy sheriff observed Huff rubbing his hands but saw nothing unusual about these actions. A gunshot residue test was administered at the jail but was inconclusive.

No murder weapon was ever found. Cause of death of Mr. Huff was a gunshot wound to the left side of the head, in addition to other bullet wounds to the left eye and right hand. Cause of death of Mrs. Huff was a combination of blunt trauma injury to the back of the head and a bullet wound in the neck, in addition to two other bullet wounds to the head.

Huff was indicted for the first-degree murder of his parents on June 2, 1980. Trial began on October 2,1980 and the jury found appellant guilty on both counts. The jury recommended death on both counts. The trial judge sentenced appellant to death on both counts.

Appellant asserts five grounds for error in the trial phase. He first claims that the trial court erred in not granting his motion for directed judgment of acquittal where the only evidence of guilt was circumstantial and where he says the circumstantial proof adduced at trial did not exclude every reasonable hypothesis of innocence. There is no merit in this contention. Circumstantial evidence alone is sufficient to convict in a capital case in the absence of a reasonable alternative theory. McArthur v. State, 351 So.2d 972 (Fla.1977); Davis v. State, 90 So.2d 629 (Fla.1956). The state’s evidence was clearly sufficient to have the case taken to the jury. The evidence that appellant was seen in the back seat of the death car with his parents an hour and a half before the murders were reported, the evidence that the killer had to be positioned in the back seat, the evidence that this car had been moved sometime subsequent to the murders, and the testimony of witness Joyner that he saw appellant alone driving a car immediately after the time of the murders, is evidence inconsistent with appellant’s story and inconsistent with any reasonable hypothesis of innocence. In light of the state’s evidence, the jury could properly have found appellant’s story to be unreasonable beyond and to the exclusion of a reasonable doubt. The trial court correctly denied appellant’s motion for acquittal.

Appellant’s second issue likewise lacks merit. He claims that the trial court erred by prohibiting him from introducing character evidence of his lack of propensity for violence. At trial, appellant proffered the testimony of witness Spence who was to testify concerning appellant’s character by the use of negative testimony. While it is permissible to develop this line of evidence by the use of negative testimony, see Herring v. State, 114 Fla. 156, 154 So. 187 (1934), in this instance appellant failed to do this properly. His proffered testimony was not directed at a pertinent trait of his character, as required by section 90.404(l)(a), Florida Statutes (1979), but was instead directed to appellant’s general character. At no time during the proffered testimony was the witness questioned about appellant’s specific character trait of propensity or lack of propensity for violence. It was thus not error for the judge to rule the proffered testimony inadmissible.

Appellant’s third point is the basis for this Court’s reversal of the murder convictions. Appellant claims and we agree that the trial court erred by denying a motion for mistrial when the state attorney implied in his closing argument that appellant had forged his deceased father’s name to a guarantee agreement, where the state had offered no evidence at trial regarding the forgery of documents. Within the confines of this trial, this was reversible error.

The facts surrounding the raising of this issue are somewhat lengthy and a recitation of same is necessary. The State’s Response to the Defendant’s Discovery Demand listed “Handwriting Analyst, FDLE Crime Laboratory.” That document also indicated that a handwriting analysis report was to be mailed to appellant upon receipt by the state attorney’s office. In September 1980, appellant served upon the state a Motion to Strike wherein it was alleged that the state had failed to provide appellant with the handwriting analysis referred to in the State’s Response to Discovery. During a hearing on the motion, the state attorney told the court that he did not believe that the crime lab in Tallahassee would be able to perform the handwriting analysis prior to trial. The state attorney also mentioned that if the analysis were not done, then the state couldn’t introduce it as evidence. In October 1980, appellant served upon the state a Motion to Compel wherein it was requested that the court compel the state to produce the handwriting analysis referred to in the previous document. At a hearing on this motion, the state informed the court that it had not sent handwriting samples to the crime lab to be analyzed. Defense counsel then stated to the court that it believed that the state intended to call an Orlando attorney named Foster to testify that appellant had told Foster that he, appellant, had forged his deceased father’s signature to a guarantee agreement. To dispute this claim, defense counsel volunteered to have appellant give handwriting samples to the state for purposes of analysis. Defense counsel requested the court prohibit Foster from testifying if the state did not want to analyze appellant’s handwriting. Since the conversation was an admission against interest, the court refused.

During the trial, and after the jury was sworn, appellant successfully renewed his motion in limine in relation to witness Mid-dlebrooks to suppress any testimony tending to indicate that appellant had forged his father’s signature to a guarantee agreement. The basis for this motion was that an attack on appellant’s character could not be made by proof of bad acts unless the defendant placed his character in issue.

The state countered that the testimony would show the serious financial position that appellant was in at the time of the murders, which would go directly to the motive that the state said it intended to prove. Following this, the state called witness Middlebrooks during its case in chief. Before this witness was sworn, defense counsel reminded the court of its prior ruling granting the motion in limine. The state attorney again argued in opposition to the motion but the court reconfirmed that the motion had been granted. Following Middlebrooks’ testimony, the state introduced as Exhibit 55 a copy of a civil complaint filed by Westinghouse which included the guarantee agreement.

Notwithstanding the above, in his summation to the jury the state attorney made the following comments:

I would ask you to do one other thing. Ladies and gentlemen, I submit that the testimony shows that state exhibit 55 was introduced into evidence and state exhibit 55 is that complaint, and the complaint is against the business, the defendant in this case, and Norman Huff. The defendant’s murdered father. And ladies and gentlemen, I think the evidence shows that that suit was filed back on April 14th, and I think we can reasonably assume it took a few days for the papers to be served, and when this complaint was served upon Norman Huff, and he looked at it, I submit, ladies and gentlemen, that he looked at a page which I am going to invite you to look at when you go back into the jury room, and that is the first, second, third, ... fourth page. Guarantee agreement. And ladies and gentlemen I submit that that guarantee agreement is, as I look at it, bears the signature purported to be that of N.R. Huff, guaranteeing to make good the defendant’s debt under this contract. And, ladies and gentlemen, I will ask you to take state’s exhibit sixty-two, back into the jury room with you, the Last Will and Testament of Norman Huff, and to look at it, very carefully, and specifically to the page number ....

Defense counsel objected to the state’s inference that the guarantee agreement had been forged. The court allowed the state to continue:

MR. BROWN (continuing) Ladies and gentlemen, I invite you to take state exhibit fifty-five, introduced into evidence, that suit against the defendant, and against his father, of Westinghouse, to look at that fourth page, that Guarantee Agreement, and look at that signature which appears says ‘N.R. Huff’, and ladies and gentlemen when you go back to the jury room, I also invite you to take a look at that will, state exhibit number sixty-two, that John Williams testified here to yesterday, that he witnessed the signature of Norman Huff when he affixed it to that will, and ladies and gentlemen, I ask you to look at the third page in that will and to look at the signature of Norman Huff, Norman R. Huff that was placed there, in John Williams’ presence, and I ask you to compare them, compare those signature, ladies and gentlemen, when you get back to the jury room.

The defense’s motion for a mistrial was denied.

For three separate but interrelated reasons, the denial of the mistrial motion was error. First, a jury is not competent to make a handwriting comparison without the aid of expert testimony. In Clark v. State, 114 So.2d 197 (Fla. 1st DCA 1959), it was stated that “the comparison of hand-writings is an art which can be judicially practiced only by expert or skilled witnesses. To allow a jury to assume the role of expert or skilled practitioners in the field of handwriting with no guide or format from which to base a considered opinion, is placing upon them a responsibility that transcends the average experience and common knowledge of a juryman.” 114 So.2d at 203. Second, the state attorney is prohibited from commenting on matters unsupported by the evidence produced at trial. Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979). The trial record is totally devoid of any evidence to substantiate that the signature of N.R. Huff which appeared on the guarantee agreement had been forged. The trial court had earlier denied appellant’s motion to suppress the testimony of attorney Foster on the question of forgery but the state declined to call this witness to produce evidence on the topic. There thus was no proof whatsoever in the record of forgery by appellant. The state’s injection of this important element into its closing argument to intimate appellant’s motive for the murders violates the rule that argument of counsel be channeled by the evidence produced at trial. Third, given the somewhat-lengthy procedural background of this case on the forgery question, the damage to appellant by introduction of the state’s intimations of forgery that were so highly improper clearly denied appellant a fair trial. As the trial judge himself stated, the evidence of appellant’s guilt presented by the state wasn’t the strongest. The state’s case was totally circumstantial. The state concedes in its brief that the prosecutor’s remarks were both improper and foolish. Since the jury found the appellant guilty, it is impossible to measure what impact the prosecutor’s negative innu-endoes had upon the jurors’ deliberations. Since defense counsel could not rebut these prejudicial prosecutorial comments, it is apparent that appellant has been denied a fair trial.

Appellant raises another point on this appeal which we address because of retrial. He claims that the trial court erred by excluding from evidence a photograph depicting the presence in the immediate crime scene of one or more unauthorized individuals. This also was error. The photograph had been properly authenticated by both witnesses Thompson and Hawton and should have been admitted.

For the above-mentioned reasons, we reverse appellant’s conviction and remand for a new trial.

It is so ordered.

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


author: SHAW, Justice.

text:
    Robert C. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 61924.
    Supreme Court of Florida.
    Sept. 1, 1983.

      Steven L. Bolotin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   SHAW, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of first-degree murder and a sentence of death. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const. We affirm the conviction but vacate the death sentence and remand for resentenc-ing.

Appellant Robert C. Richardson was charged by indictment with first-degree murder and burglary. A trial was held on August 18-21, 1981, before Circuit Judge Charles E. Miner. The jury was unable to reach a verdict and a mistrial was declared. On October 13, 1981, a second trial was commenced before Judge George L. Harper, and the jury returned verdicts of guilty on both counts. Subsequent to the guilty verdicts, it was discovered and disclosed to the judge that one juror was a distant relative of appellant’s ex-wife and that two of the jurors had gone to the scene where the crimes occurred following the conclusion of the guilt trial. A new jury was impaneled, without objection, to hear the penalty phase of the trial. After hearing testimony and argument, the jury returned a recommendation that appellant be sentenced to life imprisonment, without the possibility of parole for twenty-five years. The trial judge adjudicated the appellant guilty of first-degree murder and burglary, overrode the jury’s recommendation of life imprisonment, and sentenced the appellant to death for murder with a consecutive life sentence for the burglary.

The following facts bear on the issues before us. Willie Gary, Jr., testified that he had known appellant for a number of years. Gary testified that he was helping Shack Gardner at the latter’s garage on the morning of the murder when he saw appellant talking with the murder victim in the victim’s yard. Gardner’s garage is across the street, approximately forty yards, from the murder scene. Four other witnesses testified they were at a home adjacent to the murder homesite and saw and talked with appellant there on the morning of the murder. They also corroborated Gary’s testimony that appellant and the victim were talking together the morning of the murder and that appellant was wearing a work uniform comprised of dark blue pants and a light blue shirt.

Later in the morning Gary heard loud noises coming from the victim’s home, which he mentioned to Gardner. Gardner attributed the noise to someone moving furniture and left the garage on an errand. Gary testified he heard more loud “bam-ming” noises coming from the house and saw appellant leave the house, carrying a yellow blanket covered with blood. Gary testified that appellant returned to the house after five to ten minutes and reentered, carrying what appeared to be two wooden objects, that there were more loud “bamming” noises, and that appellant left the scene covered with blood.

There was testimony from crime scene investigators that there was evidence of a forced entry into the house and a great deal of blood splattered on the walls and floor. The medical examiner testified that the victim died from massive head injuries with multiple fractures caused by a large instrument wielded with great force. Also present were wounds probably caused by a cutting instrument of some kind. The victim’s grandson, who lived in the house, testified that various items of value were missing from the house and that the house had been in order when he left that morning. A fence-post type of object was found in the house; the medical examiner testified that an object of that type could have been used to cause some of the injuries and the grandson testified that object was not in the home when he left that morning.

Appellant first urges that his conviction should be reversed because of the admission of irrelevant and highly prejudicial testimony by one of the four witnesses who testified to appellant’s presence adjacent to and on the murder scene during the morning of the murder. The testimony from Mamie Franklin, an elderly woman, was as follows:

Q All right. Now, what happened when he came up to Ruby’s house? What was that about?
A Yes. He sat on the steps and Ruby and I were planting some flowers, putting them in the pot. And I had a flower in the pot and I was standing up and he was sitting on the steps. And he asked me could he carry my flower home. And I told him no, I didn’t want him to carry my flower home,.I could take it.
So, he said again, “Aw, Ms. Mamie, let me carry your flower home.”
I say, “Stop being hard-headed. I can carry my flower home.” I said, “When anybody tell you no, they mean no.” That’s the way I spoke it to him.
So, after then, he jumped up on the steps and he turned towards me and he shook his private at me. So, I told Ruby then, I said, “Ruby, I’m going home.” I don’t know what happened here, because this is the first time he ever did anything like that, got out of his place with me. All he did was spoke to me and went on.
Q Now, my question to you then was that behavior — was Robert Clarence Richardson acting different that morning than he has acted when you have seen him in the past?
MS. COCHEU: Objection, Your Honor. May we approach the bench? • (Whereupon, the following bench conference was had with the court reporter present.)
MS. COCHEU: Your Honor, I think Mr. Meggs is going to try and get Ms. Franklin to say something that is very irrelevant and inflammatory concerning something Mr. Richardson might have said and done. And I don’t think it’s appropriate. And I think it’s only intended to inflame the jury. And I would object to this being said in front of the jury.
MR. MEGGS: Judge, I’m just asking was he acting any different before.
THE COURT: Well, that question can be allowed. I don’t know what you’re talking about.
MR. RICHMOND: Acting any different is too general.
MR. MEGGS: I can’t hear you, Hal, I’m sorry.
MR. RICHMOND: Just asking a question, was he acting any different, his common bad character or otherwise, it’s an improper comment at this time. His character has not been proven an issue before this jury. Now, we can go ahead and let it—
MR. MEGGS: I’m not asking how he — I was just asking was he different that morning.
MR. RICHMOND: He has already asked and gotten in through the witness the fact that he shook his private at her, which I move to strike that as being highly prejudicial and having nothing to do — it’s not within the res gestae of this crime and it’s just done to show prejudice against this Defendant.
THE COURT: I will let you ask this one question you asked, but don’t get into anything of a nature that would be prejudicial and bring out matters of his character, because they’re not in issue at the time.
MR. MEGGS: Yes, sir. I need to instruct the witness that the question that I asked, was he acting any different than she knew him in the past. And I think her answer to that question would be yes and that would be all I would ask her.
THE COURT: Okay.
MR. RICHMOND: I object to that question as to form.
THE COURT: Objection overruled.
(Whereupon, the following proceedings were had in the presence of the jury.) BY MR. MEGGS:
Q Ms. Franklin, I will repeat my question to you. Was Robert Clarence Richardson acting any different on that morning of March 9th when you saw him than he normally did?
A Yes, he was.

MR. MEGGS: No further questions.

Appellant claims that the trial court committed reversible error in permitting the testimony that appellant shook his “private” at Franklin since this tended to show bad character and was irrelevant. We agree that appellant’s character was not at issue but note the absence of a timely objection. The only objection registered was a move to strike the testimony after the three attorneys went to sidebar on a later separate objection. We note also that appellant did not pursue his motion to strike even though the judge did not rule on the motion. Under these circumstances, appellant has not preserved the issue for appeal. Steinhorst v. State, 412 So.2d 332 (Fla.1982); Castor v. State, 365 So.2d 701 (Fla.1978). In any event, we are not persuaded that it was harmful error. The comment was part of a somewhat rambling answer which served to establish that the witness firmly recalled seeing appellant at the scene on the morning of the murder.

Appellant next urges that the trial judge erred in overriding the jury’s recommendation of life imprisonment based on a finding of six aggravating and no mitigating circumstances. Although appellant has not challenged these findings on appeal, we review them nonetheless and comment in order to provide guidance on remand: two of the enumerated aggravating circumstances are that the murder was committed while engaged in the crime of burglary and that the murder was committed for financial gain. The facts supporting these two circumstances are the same and cannot be used to support two separate aggravating circumstances. Vaught v. State, 410 So.2d 147 (Fla.1982); Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). We note also that the evidence does not support a finding that the murder was committed in a cold, calculated and premeditated manner. The facts and circumstances show that the victim discovered appellant, a person known to him, committing a burglary and that the murder was extemporaneously committed for the purpose of avoiding a lawful arrest. The evidence does not show beyond a reasonable doubt that there was any heightened degree of premeditation, calculation, or planning. Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983); Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982).

Appellant’s persuasive argument focuses on the judge’s prefatory comments in overriding the jury recommendation of life imprisonment. In his order imposing the death sentence, the judge supported the jury override by stating that:

The Penalty Phase jury did not have the benefit of all of the evidence due to the unusual developments in the trial process. The convicting jury was disqualified due to unforeseen circumstances not attributed to the Defendant or the State. Due to these unusual circumstances this Court is of the view that the Penalty Phase jury’s recommendation was not based on all available facts and evidence.

Even though we recognize the unusual procedural history of this case, we cannot countenance the denigration of the jury’s role implicit in these comments. It is well-settled that a jury’s advisory opinion is entitled to great weight, reflecting as it does the conscience of the community, and should not be overruled unless no reasonable basis exists for the opinion. McCampbell v. State, 421 So.2d 1072 (Fla.1982); McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981); Tedder v. State, 322 So.2d 908 (Fla.1975). Because of the unusual circumstances (the penalty phase jury had not heard the evidence of guilt), counsel for both parties argued, and the trial court ruled, that the jury should be given a full presentation of the evidence. So far as the record and the briefs show, neither party was constrained in its presentation. It is a defendant’s right to have a jury advisory opinion, and absent a voluntary and intelligent waiver of that right, a judge may not frustrate this important jury function. La-madline v. State, 303 So.2d 17 (Fla.1974). We cannot condone a proceeding which, even subtly, detracts from comprehensive consideration of the aggravating and mitigating factors after all parties have agreed on the appropriate evidence to be considered.

Finally, appellant urges that the jury override provision of Florida’s death penalty statute is unconstitutional. The Florida death penalty statute has been repeatedly upheld as constitutional, but this issue is obviated by our remand on other grounds.

We affirm the conviction but vacate the death sentence and remand for imposition of a life sentence.

It is so ordered.

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

ADKINS, J., concurs with conviction, but dissents from the sentence.


author: SHAW, Justice. OVERTON, Justice,

text:
    STATE of Florida, Petitioner, v. Paul BOWMAN, et al, Respondents. STATE of Florida, Petitioner, v. Linda ALMOS, Respondent.
    Nos. 62175, 62177.
    Supreme Court of Florida.
    Sept. 1, 1983.

      Jim Smith, Atty. Gen., and Raymond L. Marky and Carolyn M. Snurkowski, Asst. Attys. Gen., Tallahassee, for petitioner.
    John H. McCormick and W. Arvel Drury of McCormick & Drury, Jasper, for respondent Hamilton County. Richard B. Davis, Jr., Jasper, for respondent Linda Almos.
   SHAW, Justice.

The First District Court of Appeal denied the attorney general’s motions to substitute parties. In re Forfeiture of Four Thousand, Four Hundred Eighteen and 65/100 Dollars v. State, 415 So.2d 45 (Fla. 1st DCA 1982) (Bowman case); In re Forfeiture of the Following Described Property: 1978 Ford Van VIN E14HHBH5097, No. AH-74 (Fla. 1st DCA May 10, 1982) (Almos case). These decisions of the district court expressly affect a class of constitutional officers, providing this Court with jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Following the Hamilton County Sheriff’s Department’s seizure of instruments used for trafficking in contraband, the State Attorney for the Third Judicial Circuit initiated proceedings for the forfeiture of the seized instruments under section 943.44(1), Florida Statutes (Supp.1980). In each case the forfeiture was ordered and then appealed to the First District Court of Appeal. After being served with briefs as appellee, the attorney general moved for substitution of parties, claiming the state was not properly a party, because the value of the forfeited items inured to the benefit of Hamilton County, not the state. The district court denied the motion in the Bowman case, finding that the state’s interest in the proceedings was “in ensuring that the operating tools of crime are removed from the hands of criminals.” 415 So.2d at 47. The district court also denied the motion in the Almos case, citing the Bowman case. We approve the First District Court’s decisions and adopt its opinion in the Bowman case as our own.

The State of Florida has an interest in these proceedings, as the district court correctly concluded. Once the state’s interest is established, it is the legislature’s intent that the attorney general

[s]hall appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested, in the Supreme Court and district courts of appeal of this state.

§ 16.01(4), Fla.Stat. (1981) (emphasis supplied). As it so happens, the state also was a party in these cases in the trial court, since the forfeiture actions were brought in the name of the state by the state attorney. It therefore is apparent that it is the attorney general’s duty to appear in behalf of the state in these appeals.

The decisions of the district court are approved.

It is so ordered.

ADKINS, BOYD, McDONALD and EHRLICH, JJ., concur.

ALDERMAN, C.J., concurs in result only.

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

To avoid problems of conflict with various governmental agencies or subdivisions, I would require the governmental agency which initiates the forfeiture proceeding to proceed with the cause on appeal. It appears only fair that the agency that receives the fruit of the forfeiture should also bear the expense of the legal proceedings.


author: ADKINS, Justice.

text:
    Anthony DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 62192.
    Supreme Court of Florida.
    Sept. 1, 1983.
    Thomas S. (Tam) Wilson, Jr., Specially Appointed Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for respondent.
   ADKINS, Justice.

The Court, after accepting jurisdiction, read the briefs on the merits and arguments contained therein. After further considering the matter, we have determined that the Court is without jurisdiction. Therefore the petition for review is denied.

No motion for rehearing will be entertained by the Court. Fla.R.App.P. 9.330(d).

It is so ordered.

ALDERMAN, C.J., and McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD and OVERTON, JJ., dissent.


text:
    Samuel Isaiah GENTRY, Petitioner, v. STATE of Florida, Respondent.
    No. 62973.
    Supreme Court of Florida.
    Sept. 1, 1983.

      Jerry Hill, Public Defender and Michael E. Raiden, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for petitioner.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Tampa, and C. Andrew Thomas, Tallahassee, Asst. Attys. Gen., for respondent.
   SHAW, Justice.

The petitioner seeks review of a district court of appeal opinion holding that voluntary intoxication is not a defense to the charge of attempted second-degree murder. Gentry v. State, 422 So.2d 1072 (Fla. 2d DCA 1982). The case was certified to this Court as being in direct conflict with Worthey v. State, 395 So.2d 1210 (Fla. 3d DCA 1981), which states by way of a footnote that all attempts are necessarily specific intent crimes regardless of whether the specific intent is a necessary element of the completed offense. We exercise discretionary jurisdiction pursuant to article Y, section 3(b)(4) of the Florida Constitution.

In its well-reasoned opinion, the Second District Court of Appeal analyzed Worthey and other Florida cases which imply that all attempts are specific intent crimes and found that such statements either were obi-ter dicta or were made in cases where the underlying offense itself required proof of specific intent. Adams v. Murphy, 394 So.2d 411 (Fla.1981); Worthey; Littles v. State, 384 So.2d 744 (Fla. 1st DCA 1980); Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967).

Within recent months the district courts of appeal have grappled with this issue and extremely able judges have reached diametrically opposed positions. One school of thought rejects the notion that there can ever be an attempt without a specific intent, reasoning that one cannot attempt to do something without first forming the specific intent to accomplish that particular act. This position is consistent with our commonly-accepted definition of attempt: a specific intent to commit the crime and an overt act, beyond mere preparation, done towards the commission. The intent and the act must be such that they would have resulted in the completed crime except for the interference of some cause preventing the carrying out of the intent. Adams; Turner v. State, 100 Fla. 1078, 130 So. 617 (Fla.1930); Gustine v. State, 86 Fla. 24, 97 So. 207 (Fla.1923). The opposing school of thought emphasizes the illogie of requiring the state to prove an intent for successful prosecution of an attempt to commit a crime when no such degree of proof is necessary for successful prosecution of the completed crime.

The question then is whether these two seemingly opposing concepts can be harmonized and brought into conformity with some recognizable legislative intent. We have previously determined that despite the broad language of our attempt statute, there are certain crimes of which it can be said that the attempt thereof simply does not exist as an offense. Adams; State v. Thomas, 362 So.2d 1348 (Fla.1978). See also King v. State, 317 So.2d 852 (Fla. 1st DCA 1975). We now hold that there are offenses that may be successfully prosecuted as an attempt without proof of a specific intent to commit the relevant completed offense. The key to recognizing these crimes is to first determine whether the completed offense is a crime requiring specific intent or general intent. If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime. We believe there is logic in this approach and that it comports with legislative intent. Second-degree and third-degree murder under our statutes are crimes requiring only general intent.

In the instant case, the appellant, while allegedly in a drunken state, swore at his father, choked him, snapped a pistol several times to his head and when the weapon failed to fire, struck the father in the head with the gun. Had a homicide occurred, there can be no doubt that the appellant could have been successfully prosecuted for second-degree murder without the state adducing proof of a specific intent to kill. The fact that the father survived was not the result of any design on the part of the appellant not to effect death but was simply fortuitous. We can think of no good reason to reward the appellant for such fortuity by imposing upon the state the added burden of showing a specific intent to kill in order to successfully prosecute the attempted offense.

It is universally recognized that voluntary intoxication is never an excuse for the perpetration of a criminal act and may be used only to negate essential elements of the crime. In this instance voluntary intoxication could only be used to show that the intoxication was so extensive as to suspend the power of reasoning, rendering the appellant incapable of entertaining the requisite specific intent. In conformity with our conclusion that proof of specific intent is unnecessary to prosecute the offense of attempted second-degree murder, a charge relative to voluntary intoxication was properly refused.

The district court opinion is approved. It is so ordered.

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

       Worthey cites as authority Gustine v. State, 86 Fla. 24, 97 So. 207 (Fla.1923); Hogan v. State, 50 Fla. 86, 39 So. 464 (Fla.1905); Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967), cert. denied, 207 So.2d 452 (Fla.1967); § 777.04, Fla.Stat. (1979); R. Anderson, 1 Wharton’s Criminal Law and Procedure, § 73 (1957).