text:
    Richard KING, Appellant, v. STATE of Florida, Appellee.
    No. 59464.
    Supreme Court of Florida.
    July 21, 1983.
    Rehearing Denied Sept. 16, 1983.

      Warren H. Edwards, Orlando, for appellant.
    Jim Smith, Atty. Gen., and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal by the appellant, Richard King, from his conviction of first-degree murder and the sentence of death imposed on him by the trial judge in accordance with the jury’s recommendation. We have jurisdiction, article Y, section 3(b)(1), Florida Constitution, and affirm.

The record reflects the following facts. On the morning of August 27, 1979, the victim, Peggy Burnside, was murdered in-the Orlando, Florida, apartment she shared with appellant. She had been struck on the forehead with a blunt instrument and then shot in the head. She died as a result of the gunshot wounds. The appellant, while in Daytona Beach, Florida, on the evening of the crime, called the Daytona Beach police and turned himself in, stating that he had seen news reports of the Burnside homicide on television and believed the police were looking for him. A patrolman was dispatched to meet him.

Appellant, after receiving the appropriate Miranda warnings, was interviewed by Daytona Beach police officers, to whom he gave a statement. In that statement, appellant indicated that he had argued with the victim that morning and had struck her in the head with a blunt object. The Day-tona Beach police contacted the Orlando police department and were advised that the victim had not only been hit with a blunt object but had also been shot in the head. Upon learning that the victim had been shot, the Daytona Beach police officers questioned appellant again. He was advised that the victim had been shot and was asked if he had shot her. Appellant exclaimed, “How would you feel if you just killed someone?” and began crying. He then asked that the interview cease, and his request was honored.

The Orlando police officers thereafter arrived in Daytona Beach. They gave appellant the appropriate Miranda warnings; he told them he wanted a lawyer. One of the Orlando police officers told him that they only wanted to talk about what he had already told the Daytona Beach police detective. Appellant responded with incriminating statements confirming what he had told the Daytona Beach police. He admitted that he had shot the victim twice. Subsequently, the officers attempted to record the conversation, and appellant again requested an attorney. When told that the taping was to be used only as a permanent record of the conversation, appellant continued speaking and made additional incriminating statements.

The evidence at trial established that the victim and the appellant shared a communal living arrangement and that the victim was seeking a divorce from her husband. A .38 caliber revolver and a piece of pipe were found in appellant’s apartment, introduced into evidence, and properly identified as the weapons used in this murder. Evidence was also admitted to show that twenty-three days before this incident, appellant had beaten the victim to the point that she became unconscious. Appellant testified in his own behalf and denied that he had shot the victim. Appellant, prior to trial, was examined by three psychiatrists, each of whom found him to be competent at the time of the offense and competent to stand trial.

After the jury returned a verdict of guilty, the state, in the sentencing hearing, introduced evidence that appellant had been convicted of a prior violent felony, specifically, manslaughter, for killing his common-law wife by striking her three times in the head with an axe. Although appellant took the stand in the sentencing hearing, he asserted a fifth amendment privilege and refused to testify. The jury returned a verdict recommending the imposition of the death penalty. The trial judge refused a request for a pre-sentence investigation report and determined that the death penalty was appropriate, finding the following three aggravating circumstances:

A.That the Defendant was previously convicted of a felony involving the use of violence to the person in that in 1969 in South Carolina he killed a woman by striking her in the head three times with an axe and was convicted of manslaughter for that killing;
B. That the capital felony involved herein was especially heinous, atrocious, or cruel in that the victim was struck forcefully in the face by the Defendant with a heavy steel bar, not rendering the victim unconscious, after which the Defendant went to another room of the house involved and secured a pistol and returned to the victim and shot her in the face and in the back of the head with the pistol, causing her death;
C. That the capital felony involved herein was a homicide and was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification in that after having struck the victim a gre-vious [sic] blow in the face with a heavy steel bar, which did not render the victim unconscious, the Defendant went to another room of the house involved, secured a pistol from its place of concealment, returned to the victim and shot her with the pistol, once in the face and once in the back of the head; that the said acts of the Defendant were precipitated by an argument with the victim; that there is no evidence that the victim, who was female and physically smaller than the Defendant, was threatening the Defendant in any way at the time of his said acts.

The trial judge found no mitigating circumstances.

Trial Phase

Appellant asserts that his conviction should be vacated upon eight grounds: (1) the trial court erred in finding appellant competent to stand trial; (2) the trial court improperly excused for cause certain jurors who stated that they were opposed to the death penalty but who could sit impartially on the issue of guilt or innocence; (3) the trial court improperly admitted appellant’s oral and written statements because they were given after he had exercised his right to counsel; (4) the trial court improperly admitted a photograph of the victim; (5) the trial court erred in allowing the admission of testimony that the victim had been beaten by appellant twenty-three days prior to the killing; (6) the trial court improperly restricted the appellant’s cross-examination of the husband of the victim; (7) the evidence was insufficient to establish premeditation; and (8) section 921.141, Florida Statutes (1979), is facially unconstitutional or, if constitutional, was unconstitutionally applied to the facts of this case.

We find that none of these issues has any merit and that six may be disposed ' of summarily. With regard to the first issue, the competency of the defendant, appellant in effect disagrees with the expert testimony presented to the trial judge. Three psychiatrists examined the appellant and found him sane and competent to communicate, advise, and assist counsel. See Lane v. State, 388 So.2d 1022, 1025 (Fla. 1980). The second issue, the propriety of excusing jurors who stated that they were opposed to the death penalty but that they could sit impartially on the issue of guilt or innocence, has been previously resolved by this Court in King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981), and in Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). We find no impropriety in the trial judge’s excusing the jurors in this case. We also note that no objection was raised by appellant at the time the jurors were excused. We next find that neither the admission of the photograph of the victim nor the asserted restriction on the cross-examination of the victim’s husband was reversible error. Further, the evidence was clearly sufficient to establish premeditation, and section 921.141 is both facially constitutional, as we have previously held, and has been constitutionally applied to the appellant in this case.

The issues pertaining to the confessions of the appellant and to the prior violent episode between appellant and the victim require a more extensive discussion. Confessions

Appellant asserts that his confessions should be suppressed on the grounds that they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). It is important to recognize that appellant made two separate confessions. The first was made to the Daytona Beach police, to whom he turned himself in and who knew nothing of the incident at the time he was taken into custody. In this first interview, appellant admitted hitting the victim in the head with a blunt instrument, and, when asked by the Daytona Beach police officers whether he shot the victim, he broke down and cried, saying, “How would you feel if you had just killed someone?” This confession was clearly admissible since appellant was given his Miranda rights and waived them. There is no real assertion by appellant that this statement should have been suppressed.

The admissions and statements which bring into issue the principles set forth in Edwards v. Arizona are those appellant gave to the Orlando police officers when they came to Daytona Beach to talk to him about this incident. Appellant contends that these statements were erroneously admitted into evidence because appellant made them after asking for counsel. The record is clear that the Orlando officers properly gave appellant his Miranda warnings. One officer testified that, after he gave appellant his constitutional rights, the following exchange occurred:

As I was starting the interview, he said to me, he, “I think I need an attorney.” And at which time I responded, “We’re only here to talk to you about what the detective from Daytona Beach talked to you about.”

Appellant responded by giving a detailed statement of what occurred between him and the victim. The statement was subsequently taped, reduced to writing, and signed by appellant.

We must look at all the circumstances surrounding this second statement to determine its admissibility. The rule, as expressed by Justice White in Edwards, states:

It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461] (1938). See Faretta v. California, 422 U.S. 806, 835 [95 S.Ct. 2525, 2541, 45 L.Ed.2d 562] (1975); North Carolina v. Butler, 441 U.S. 369, 374-375 [99 S.Ct. 1755, 1757-1758, 60 L.Ed.2d 286] (1979); Brewel v. Williams, 430 U.S. 387, 404 [97 S.Ct. 1232, 1242, 51 L.Ed.2d 424] (1977); Fare v. Michael C, 442 U.S. 707, 724-725 [99 S.Ct. 2560, 2571, 61 L.Ed.2d 197] (1979).

451 U.S. at 482, 101 S.Ct. at 1883. (Emphasis added.) There is no “paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case.” Michigan v. Mosely, 423 U.S. 96, 109, 96 S.Ct. 321, 329, 46 L.Ed.2d 313 (White, J., concurring in result). Whether the appellant in this instance chose to continue to talk to police without counsel, knew his rights, and knew that in giving a statement he was waiving the right to counsel, are questions of fact to be determined in light of all the circumstances.

evidence in this case reflects that appellant had been fully advised of his rights on numerous occasions and had signed three waiver forms, one for the Day-Day-Beach police and two for the Orlando police; that he was familiar with the crimi-crimiprocess because he had previously been charged, tried, and convicted for a serious felony; that he had turned himself in and had just previously admitted that he had struck the victim in the head with a blunt object and implied that he had killed the victim. We believe that the response by the officer to appellant’s request for an attorney, that he and his fellow officer were there to ask him to repeat what he had already told the Daytona Beach police officer, was a totally reasonable response under the circumstances and was not intended to induce appellant to further incriminate himself. See Edwards, 451 U.S. 477, 490, 101 S.Ct. 1880, 1887, 68 L.Ed.2d 378 (Powell, J., concurring in result) (police may legitimately inquire whether a suspect has changed his mind about speaking to them).

[9] conclude that appellant gave the statement to the Orlando police officers vol-volwith full knowledge of his rights to counsel, and with knowledge that, by giving the statement under the circum-circumhe was waiving his right to counsel. This was clearly not a situation such as that in Edwards, where the defendant stated, “I want an attorney before making a deal,” and was subsequently advised that he had to talk to the detectives.

We recognize that, given the various interpretations of Edwards, the admissibility of the statements appellant made to the Orlando police officers presents a close question. On the present record, however, we find that even had the trial court excluded these statements, the admissions appellant had made to the Daytona Beach police, combined with the other evidence in the case, clearly established appellant’s guilt. The trial court’s error, if any, was harmless under the principles set forth in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Evidence that Appellant Had Previously Assaulted the Victim

Appellant contends the trial court improperly allowed testimony that he had severely beaten the victim twenty-three days prior to the killing. Appellant asserts that the circumstances of this beating were not similar to those of the killing and that the beating was too remote in time to be relevant to the case. Consequently, he argues, this evidence was admitted in violation of Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), because it was utilized only to show propensity and not to prove an element essential to this offense. We disagree. We believe that the testimony was not remote in time, was proper as evidence of premeditation, and was proper for identification since one of the theories of appellant’s defense was to imply that the victim’s present husband could have been the killer. Under these circumstances, we find the testimony admissible.

Sentencing Phase

Appellant contends that the trial court erred in finding three aggravating circumstances and no mitigating circumstances. First, appellant contends that the testimony concerning the nature of the violent felony of which he was previously convicted, the axe-slaying of his common-law wife, was improperly admitted into evidence and improperly relied on by both the jury and the trial judge. We find this contention incomprehensible. A judge and jury, in imposing sentence, must know the nature of the offense in order to give proper weight to the violent felony conviction. We also disagree with the assertion that the killing in the instant case culminated a series of incidents occurring in the heat of passion, and, that, therefore, this killing was not heinous, atrocious, or cruel.

We do, however, question the finding that this murder was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification, as we have now defined this aggravating factor. The trial judge in this case did not have the benefit of our recent decisions in McCray v. State, 416 So.2d 804 (Fla.1982); 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); and 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). Although premeditation was proven, we do not think the evidence was sufficient to establish that this homicide was committed in a cold and calculated manner. As we have stated, this “aggravating circumstance ordinarily applies in those murders which are-characterized as executions or contract murders, although that description is not intended to be all-inclusive.” McCray, 416 So.2d at 807. We conclude that this was not a proper aggravating circumstance under the facts of this case.

Appellant also argues that the mitigating circumstance of extreme mental or emotional disturbance should have been considered by the trial judge because of appellant’s mental condition. He supports this argument by citing his behavior at trial: He refused to wear civilian clothes at the trial, asserted that he was black when in fact he is Caucasian, and insisted on testifying at the sentencing hearing, only to assert a fifth amendment privilege. In addition, appellant contends that this was a crime of passion occurring between two individuals engaged in an on-going relationship. We find that the total record in this case, including the psychiatric reports, justifies the finding of the trial judge that this mitigating circumstance need not be considered as a factor in imposing sentence in this case.

Our finding that one aggravating circumstance was improper does not require a resentencing where there remain two aggravating and no mitigating circumstances. Enmund v. State, 399 So.2d 1362 (Fla.1981), rev’d on other grounds,-U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); 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). In affirming the imposition of the death penalty on appellant, we note that the facts in this case are similar to those in Harvard v. State, 414 So.2d 1032 (Fla.1982), cert. denied,-U.S.-, 103 S.Ct. 764, 74 L.Ed.2d 979 (1983), where we also affirmed the death penalty. Appellants in both cases killed women with whom they had a relationship, and, in both cases, appellants had previously been convicted of similar violent offenses.

For the reasons expressed, we affirm the conviction and sentence of death.

It is so ordered.

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

ADKINS, J., concurs in the conviction, but concurs in result only in the sentence.


source: Caselaw Access Project

author: ALDERMAN, Chief Justice. BOYD, Justice,

license: Public Domain

text:
    Clyde FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 60549.
    Supreme Court of Florida.
    July 21, 1983.
    Rehearing Denied Sept. 16, 1983.

      Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   ALDERMAN, Chief Justice.

Clyde Foster appeals his two convictions of first-degree felony murder and his sentences of death. We affirm the convictions, but we vacate the death sentences and remand to the trial judge for resentencing.

On Saturday, August 3, 1974, the bodies of C.J. Weimorts and Buddy Grady were found in Weimorts’ automobile in a vacant lot behind an apartment complex in Columbia County. Both men died from gunshot wounds in the back. Their pockets were turned inside out, and their wallets were missing. Also missing were a cigar box containing a .38 caliber pistol and the Friday receipts (cash and checks) from Wei-morts’ gas station. Foster’s fingerprint was found on the inside of the back window of Weimorts’ automobile. The murder weapon, a .22 caliber pistol, was owned by Foster’s girl friend and was recovered from her apartment several days after the murders. Also recovered from the girl friend’s apartment was a pair of men’s tennis shoes which were linked by expert testimony to footprints leading from the automobile toward the apartments. The .38 caliber pistol belonging to Weimorts and kept in the cigar box was recovered from a local pawnshop. ' The pistol had been pawned by a man who testified that he had purchased it from Foster.

Foster was initially indicted for both the felony murders and premeditated murders of C.J. Weimorts and Buddy Grady. Following a jury trial, he was convicted of two counts of first-degree felony murder and two counts of second-degree murder. The trial court imposed the death sentence, and Foster appealed. In Foster v. State, 387 So.2d 344 (Fla.1980), we found that Foster was denied his right to the effective assistance of counsel because both he and his codefendant were jointly represented by the same court-appointed attorney. The charges against the codefendant were dropped after she testified for the state against Foster. We vacated the judgment and sentence and remanded the case for a new trial. Upon remand, the trial court dismissed the two counts of premeditated first-degree murder, and Foster was tried and convicted of the two counts of first-degree felony murder. The jury recommended and the trial court imposed the death sentence for each of the murders.

Foster challenges his convictions of first-degree felony murder on several grounds, none of which we find to be meritorious. Initially, he argues that because of the representation conflict during the first trial, his attorney did not adequately cross-examine Ben Fluellen, a state witness who died before the second trial. Therefore, Foster asserts, it was reversible error to allow Fluellen’s testimony from the first trial to be read to the jury during the second trial. We do not agree. We reversed Foster’s previous convictions solely because of the conflict of interest that was created when the trial court appointed the same attorney to represent both Foster and his codefendant who subsequently became a witness for the state. It does not appear from the record that this conflict of interest in any way impaired or affected the adequacy of Foster’s attorney’s cross-examination of Fluellen.

Foster also contends that he was prejudiced because the trial court erroneously instructed the jury on second-degree felony murder as it was statutorily defined in 1975. The proper instruction for the jury, he argues, would have been on second-degree felony murder as defined in 1974, the year the murders were committed. The record reveals that the trial judge, the prosecutors, and Foster’s two trial attorneys discussed extensively the proposed jury instructions. Although the instruction was erroneously based on a definition of second-degree felony murder not in effect at the time of the murders, Foster’s attorneys did not object. Thus, the issue is not properly before us, and we will not consider it. Fla. R.Crim.P. 3.390(d); see Jones v. State, 411 So.2d 165 (Fla.1982).

We have considered the remaining issues raised by Foster and find them to be without merit. In addition to reviewing the record in light of the errors alleged, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f) and conclude that no new trial is required.

Foster also challenges his death sentences which were imposed by the court following a jury recommendation of death. The trial court found as aggravating circumstances that (1) the capital felonies were committed while Foster was engaged in the crime of robbery, (2) the capital felonies were committed for the purpose of avoiding or preventing lawful arrest, and (3) the capital felonies were committed to disrupt or hinder the lawful exercise of the enforcement of law. As mitigating circumstances, the trial court found that Foster had no significant history of criminal activity and that he was 21 years old at the time of the murders.

Foster argues that the trial court erred in finding that the capital felonies were committed to avoid lawful arrest and to hinder law enforcement. He contends that there was insufficient evidence to support either of these aggravating circumstances. We agree. Although we know from the medical examiner’s testimony that both victims were shot from behind as they sat in the front seat of Weimorts’ automobile, we do not know what events preceded the actual killing. In Menendez v. State, 368 So.2d 1278 (Fla.1979), wherein we found that it was doubtful that the murder was committed to avoid lawful arrest within the contemplation of our statute, we held that the defendant’s motive cannot be assumed and that the burden is on the state to prove it. As to the burden of proof necessary to prove this aggravating circumstance, we stated in Riley v. State, 366 So.2d 19, 22 (Fla.1978), that “the mere fact of a death is not enough to invoke this factor when the victim is not a law enforcement official. Proof of the requisite intent to avoid arrest and detection must be very strong in these cases.” See also Armstrong v. State, 399 So.2d 953 (Fla. 1981). We find here that the state did not prove beyond a reasonable doubt that Foster committed the murders to avoid lawful arrest.

Likewise, we find that the state did not prove beyond a reasonable doubt that the murders were committed to hinder law enforcement.

We have also considered Foster’s death sentences in light of the recent United States Supreme Court decision in Enmund v. Florida,-U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and find that Enmund does not apply. Enmund was convicted and sentenced to death for the felony murder of an elderly couple at the back door at their farmhouse in central Florida. In that case, there was no direct evidence that Enmund was present at the back door when the plan to rob the elderly couple led to their being murdered. The only evidence of the degree of his participation was the jury’s likely inference that he was the person in the get-a-way car by the side of the road waiting to help the robbers escape. We affirmed Enmund’s convictions and death sentences under the felony murder rule. In reversing the death sentences, the United States Supreme Court held that the eighth amendment does not permit the imposition of the death penalty “on one such as En-mund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” Enmund v. Florida, 102 S.Ct. at 3376.

In the present case, Foster, like En-mund, was convicted of two counts of felony murder and was sentenced to death. Unlike Enmund, however, Foster’s convictions were supported by sufficient evidence showing that he was in fact the triggerman responsible for the murders of Weimorts and Grady.

Because there now remain only one properly found aggravating circumstance and two mitigating circumstances in the original sentencing order, the trial court should be given an opportunity to evaluate the relative weight of those circumstances and any others which it may find to have been established by the record in this case. Accordingly, we affirm Foster’s convictions of felony murder in the first degree, vacate his sentences of death, and remand for resen-tencing by the trial judge.

It is so ordered.

OVERTON, MCDONALD and EHRLICH, JJ., concur.

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

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion affirming appellant’s convictions on two counts of first-degree murder. I concur with the majority opinion in approving the finding of the trial court that there were two statutory mitigating circumstances shown: appellant had no significant record of prior criminal activities and his youthful age of twenty-one years was in this instance a proper mitigating factor. The majority is also correct, I believe, in affirming that portion of the trial court’s order which found that the murders were committed in the course of robbery and that both capital felonies were aggravated by this circumstance.

The evidence showed that appellant lived in the immediate community where the murders occurred and near the business Operated by the victims. Weimorts, the owner of the filling station, and Grady, his employee, were seated in the front seat of Weimorts’ automobile when they were killed. The cause of death was multiple gun shots in the backs of the victims. A permissible inference from the evidence is that the killer was in the back seat and shot both victims from close range. There was no evidence of resistance to the robbery, so a further permissible inference is that the killer executed the victims in cold blood in order to rob them or after robbing them. The trial judge heard all of the evidence and concluded that the murders were committed for the purpose of avoiding arrest in that the killer wanted to eliminate the victims as witnesses. My review of the record convinces me that the trial judge was correct in finding this aggravating circumstance.

I therefore conclude that there were two properly found aggravating circumstances. There were also two statutory mitigating circumstances. The jury recommended death. In State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), this Court said that the process of analyzing aggravating and mitigating circumstances is not a counting process but is rather a weighing process. The weighing of the circumstances is not quantitative but qualitative. I believe the trial judge properly struck the balance by following the jury’s recommendation and sentencing appellant to death. The magnitude of appellant’s offense against the victims and against society warrants the penalty of death. I would affirm both the convictions and the sentences of death.

       Foster additionally contends that the trial court erred in allowing Weimorts’ widow to testify about her husband’s business habits, that the court erred in denying his motion for mistrial based on improper closing arguments, that the court erred in denying his motion to dismiss the two felony murder counts based on double jeopardy grounds, that the court erred in denying his motion to seal former testimony and statements because of his attorney’s conflict of interest, that the court erred in denying his motion to disqualify the trial judge, and that the court erred in denying his motion to discharge under the speedy trial rule.


author: PER CURIAM. ALDERMAN, Chief Justice,

text:
    THE FLORIDA BAR. In re RULES OF CRIMINAL PROCEDURE 3.130 (BAIL BOND).
    No. 63018.
    Supreme Court of Florida.
    July 21, 1983.
    Corrected by Order of Dec. 27,1983.
    Abraham Laeser, Chairman, Criminal Procedure Rules Committee, Miami, for petitioner.
   PER CURIAM.

Appended to this order are amended and new rules of the Rules of Criminal Procedure, to comply with the mandate of the 1982 constitutional amendment to article I, section 14, of the Florida Constitution and the action of the legislature in its passage of section 907.041, Florida Statutes (Supp. 1982). The proposed rules were prepared by the Criminal Procedure Rules Committee and submitted by The Florida Bar. The Florida Public Defender Association made suggestions. The portion of the rules which are underscored is new and that portion in brackets was suggested by the Florida Public Defender Association.

These rules shall cover all proceedings within their scope after 12:01 A.M. on October 1, 1983. All conflicting rules and statutes are hereby superseded; statutes not superseded shall remain in effect as rules promulgated by the Supreme Court. The committee note appended to the rules is not adopted by the Court.

It is so ordered.

ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

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

RULES OF CRIMINAL PROCEDURE BAIL

RULE 3.130 — FIRST APPEARANCE

(a) Prompt First Appearance.

Except when he has been previously released in a lawful manner, every arrested person shall be taken before a judicial officer within twenty-four (24) hours of his arrest. The chief judge of the circuit for each county within the circuit shall designate one or more judicial officers from the circuit court, or county court, to be available for first appearance and proceedings.

(b) Advice to Defendant.

Upon the defendant’s first appearance the magistrate shall immediately inform him of the charge and provide him with a copy of the complaint. The magistrate shall also adequately advise the defendant as follows:

(1) That he is not required to say anything, and that anything he says may be used against him.

(2) If he is as yet unrepresented, that he has a right to counsel, and, if he is financially unable to afford counsel, that counsel forthwith will be appointed.

(3) That he has a right to communicate with his counsel, his family, or his friends, and that, if necessary, reasonable means will be provided to enable him to do so.

(c) Counsel for Defendant.

(1) Appointed counsel. Where practicable, the magistrate should determine prior to the first appearance whether the defendant is financially able to afford counsel and whether he desires representation. When the magistrate determines that the defendant is entitled to court-appointed counsel and desires counsel, he shall immediately appoint counsel. This determination must be made and, where required, counsel appointed no later than the time of the first appearance, and prior to any other proceedings at the first appearance. If necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance or at subsequent proceedings before the magistrate.

(21 Retained counsel. Where the defendant has employed, or is financially able and desires to employ, counsel to represent him at first appearance, the magistrate shall allow the defendant a reasonable time to send for counsel and shall, if necessary, postpone the first appearance hearing for such purpose. The magistrate shall also, upon request of the defendant, require an officer to communicate a message to such counsel as the defendant may name. The officer shall with diligence, and without cost to the defendant if the counsel is within the county, perform the duty. If the postponement will likely result in the continued incarceration of the defendant beyond a 24-hour period, at the request of the defendant the magistrate may appoint counsel to represent the defendant for the first appearance hearing.

(3) No further steps in the proceedings should be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel.

(41 Waiver of counsel. The defendant may waive his right to counsel at first appearance and if he does so, such waiver, containing an explanation of his right to counsel, shall be in writing and signed and dated by the defendant. This written waiver of counsel shall, in addition, contain a statement that it is limited to first appearance only and shall in no way be construed to be a waiver of counsel for subsequent proceedings.

(dl Pretrial Release.

The judicial officer shall proceed to determine conditions of release pursuant to Rule 3.131.

RULE 3.131 PRETRIAL RELEASE

(a) Right to Pretrial Release.

Unless charged with a capital offense or an offense punishable bv life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or countv ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial. Tori assure the integrity of judicial process, the accused may be detained.

(b) Hearing at First Appearance — Conditions of Release.

(11 Unless the State has filed a motion for pretrial detention pursuant to Rule 3.132. the court shall conduct a hearing to determine pretrial release. For the purpose of this rule, bail is defined as anv of the forms of release stated below. There is a presumption in favor of release on non-monetary conditions for anv person who is granted pretrial release. The judicial officer shall impose the first of the following conditions of release which will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial. Tori assure the integrity of the judicial process: or. if no single condition gives that assurance, anv combination of the following conditions:

(1) Personal recognizance of the defendant;

(HI Execution of an unsecured appearance bond in an amount specified by the judge;

(HD Placing restrictions on the travel, association, or place of abode of the defendant during the period of release;

(iv) Placing the defendant in custody of a designated person or organization agreeing to supervise him;

(v) Requiring the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that anv criminal defendant who is required to meet monetary bail or bail with anv monetary component may satisfy said bail bv providing an appearance bond.

(vi) Imposing any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.

(2) The judge shall at the defendant’s first appearance consider all available relevant factors to determine what form of release is necessary to assure the defendant’s appearance. If a monetary bail is required, then the judge shall determine the amount.

(31 In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be. the court mav consider the nature and circumstance of the offense charged and the penalty provided bv law, the weight of the evidence against the defendant, the defendant’s family ties, length of residence in the community, employment history, financial resources, and mental condition; the defendant’s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings, the nature and probability of danger which the defendant’s release poses to the community, the source of funds used to post bail: whether the defendant is already on release pending resolution of another criminal proceeding, or on probation, parole, or other release pending completion of sentence, and any other facts the court considers relevant.

(41 All information provided bv a defendant in connection with any application for or attempt to secure bail, to any court. court personnel, or individual soliciting or recording such information for the purpose of evaluating eligibility for or securing bail for the defendant, under circumstances such that the defendant knew or should have known that the information was to be used in connection with an application for bail, shall be accurate, truthful, and complete. without omissions to the best knowledge of the defendant. Failure to comply with the provisions of this subsection mav result in the revocation or modification of bail fHowever. no defendant shall be compelled to provide information regarding his criminal record.!

(5) Information stated in, or offered in connection with, any order entered pursuant to this rule need not strictly conform to the rules of evidence.

(cl Consequences of Failure to Appear.

(11 Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in Section 903.26 of the Florida Statutes, and who voluntarily appears or surrenders, shall not be eligible for a recognizance bond.

(21 Any defendant who willfully and knowingly fails to appear and breaches a bond as specified in Section 903.26 of the Florida Statutes, and who is arrested at any time following forfeiture, shall not be eligible for a recognizance bond or any form of bond which does not require a monetary undertaking or commitment equal to or greater than $2.000 or twice the value of the monetary commitment or undertaking of the original bond, whichever is greater. (d) Subsequent Application for Setting or Modification of Bail.

(1) When a judicial officer not possessing trial jurisdiction orders a defendant held to answer before a court having jurisdiction to try the defendant, and bail has been denied or sought to be modified, application by motion may be made to the court having jurisdiction to try the defendant, or in the absence of the judge of said trial court, to the circuit court. Such motion shall be determined promptly. No judge or a court of equal or inferior jurisdiction mav modify or set a condition of release, unless such judge either:

ffl Imposed the conditions of bail or set the amount of bond required: or

(ii) Is the chief judge of the circuit in which the defendant is to be tried: or

(iii) Has been assigned to preside over the criminal trial of the defendant: or

(iv) Is the first appearance judge and was authorized bv the judge initially setting or denying bail to modify or set conditions of release.

(2) Applications bv the defendant for modification of bail on any felony charge must be heard bv a court in person at a hearing, with the defendant present and with at least three (31 hours notice to the state attorney and county attorneyf. if bond forfeiture proceedings are handled bv the county attorney. The state mav apply for modification of bail by showing good cause and with at least three (31 hours notice to the attorney for defendant.!

(3) In the event any trial court fixes bail and refuses its reduction before trial, the defendant may institute habeas corpus proceedings seeking reduction of bail. If application is made to the supreme court, or district court of appeal, notice and a copy of such application shall be given to the attorney general and the state attorney. Such proceedings shall be determined promptly.

(e) Bail Before Conviction; Condition of Undertaking.

(1) If a person is admitted to bail for his appearance for a preliminary hearing, or on a charge that a magistrate is empowered to try, the condition of the undertaking shall be that he will appear for such hearing, or to answer the charge, and will submit himself to the orders and process of the magistrate trying the same, and will not depart without leave.

(2) If he is admitted to bail after he has been held to answer by a magistrate, or after an indictment or information on which he is to be tried has been filed against him, the condition of the undertaking shall be that he will appear to answer the charges before the court in which he may be prosecuted and submit to the orders and process of the court, and will not depart without leave.

(f) Revocation of Bail.

The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit him to the custody or the proper official to abide the judgment, sentence and any further order of the court.

(e) Arrest and Commitment by Court.

The court in which the cause is pending may direct the arrest and commitment of the defendant who is at large on bail in the following cases:

(1) When there has been a breach of the undertaking;

(2) When it appears that his sureties or any of them are dead or cannot be found or are insufficient or have ceased to be residents of the state;

(3)When the court is satisfied that the bail should be increased or new or additional security, required;

The order for the commitment of the defendant shall recite generally the facts upon which it is based, and shall direct that the defendant be arrested by any official authorized to make arrests, and that the defendant be committed to the official in whose custody he would be had he not been given bail, to be detained by such official until legally discharged. The defendant shall be arrested pursuant to such order upon a certified copy thereof, in any county, in the same manner as upon a warrant of arrest. If the order provided for is made because of the failure of the defendant to appear for judgment, the defendant shall be committed. If the order is made for any other cause, the court may determine the conditions of release, if any.

(h) Bail After Recommitment.

If the defendant applies to be admitted to bail after recommitment, the court which recommitted him shall determine conditions of release, if any, subject to the limitations of (c) above.

(i) Qualifications of Surety After Order of Recommitment.

If the defendant offers bail after recom-mitment, each surety shall possess the qualifications and sufficiency, and the bail shall be furnished in all respects in the manner, prescribed for admission to bail before re-commitment.

(j) Issuance of Capias; Bail Specified.

Upon the filing of either an indictment or information charging the commission of a crime, if the person named therein is not in custody or at large on bail for the offense charged, the judge shall issue or shall direct the clerk to issue, either immediately, or when so directed by the prosecuting attorney, a capias for the arrest for such person. Upon filing of the indictment or information, the judge shall endorse the amount of bail, if any, and may authorize the setting or modification of bail by the judge presiding over the defendant’s first appearance hearing. This endorsement shall be made on the capias and signed by the judge.

(k) Summons Upon Misdemeanor Charge.

When a complaint is filed charging the commission of a misdemeanor only and the magistrate deems that process should issue as a result, or when an indictment or information on which the defendant is to be tried charging the commission of a misdemeanor only, and the person named in it is not in custody or at large on bail for the offense charged, the magistrate or judge shall direct the clerk to issue a summons instead of a capias unless the magistrate or judge has reasonable ground to believe that the person will not appear in response to a summons in which event an arrest warrant or a capias shall be issued with the amount of bail endorsed on it. The summons shall state substantially the nature of the offense and shall command the person against whom the complaint was made to appear before the judge issuing the summons or the judge having jurisdiction of the offense at a time and place stated in it.

(l) Summons When Defendant is Corporation.

Upon the filing of an indictment or information or complaint charging a corporation with the commission of a crime, whether felony or misdemeanor, the judge shall direct the clerk to issue or shall issue a summons to secure its appearance to answer the charge. If, after being summoned, the corporation does not appear, a plea of not guilty shall be entered and trial and judgment shall follow without further process. RULE 3.132 PRETRIAL DETENTION

Cal Motion Filed at First Appearance.

A person arrested for an offense for which detention mav be ordered under Section 907.041 of the Florida Statutes shall be taken before a judicial officer for a first appearance within twenty-four (241 hours of arrest. The State mav file with the judicial officer at first appearance a motion seeking pretrial detention, signed bv the State Attorney or his assistant setting forth with particularity the grounds and the essential facts on which pretrial detention is sought, and certifying that he has received testimony under oath' supporting the grounds and the essential facts alleged in the motion. If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of Rule 3.131(b¥D. If the motion for pretrial detention is facially sufficient, the judicial officer shall proceed to determine whether there is probable cause that the person committed the offense. If probable cause is found, the person mav be detained in custody pending a final hearing on pretrial detention. If probable cause is established after first appearance pursuant to the provisions of Rule 3.133. and the person has been released from custody, he mav be recommitted to custody pending a final hearing on pretrial detention.

(b) Motion Filed After First Appearance.

A motion for pretrial detention mav be filed at any time prior to trial. Such motion shall be made to the court with trial jurisdiction. Upon receipt of a facially sufficient motion and a determination of probable cause, unless otherwise previously established. that an offense eligible for pretrial detention has been committed, the following shall occur:

(1) In the event of exigent circumstances. the court shall issue a warrant for the arrest of the named person, if such person has been released from custody. The person mav be detained in custody pending a final hearing on pretrial detention.

(2) In the absence of exigent circumstances. the court shall order a hearing on such motion as provided in (c) below.

(cl Final Order.

ID Hearing required.

A final order of pretrial detention shall be entered only after a hearing in the court of trial jurisdiction. The hearing shall be held within five (5) davs of the filing of the motion, or the date of taking the person in custody pursuant to a motion for pretrial detention, whichever is later. The State Attorney has the burden of showing fbe-vond a reasonable doubtl the need for pretrial detention pursuant to the criteria in Section 907.041 of the Florida Statutes. The defendant may request a continuance. The State shall be entitled to one continuance for good cause. No continuance shall exceed five (SI davs unless there are extenuating circumstances. The defendant may be detained pending the hearing, but in no case shall he be detained in excess of ten (10) davs. unless such delay is sought by the defendant. The person sought to be detained is entitled to representation by counsel. to present witnesses and evidence, and to cross-examine witnesses. The court may admit relevant evidence and testimony under oath without complying with the rules of evidence, but evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible. A final order of pretrial detention shall not be based exclusively on hearsay evidence. No testimony by the defendant shall be admissible to prove the guilt of the defendant at any other judicial proceeding, but may be admitted in an action for perjury based upon the defendant’s statements made at the pretrial detention hearing, or for impeachment.

(2) Findings and Conclusions to be Recorded.

The court’s pretrial detention order shall be based solely on evidence produced at the hearing, and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within twenty-four (24) hours of the pretrial detention hearing.

(3) Dissolution of Order.

The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the basis for detention.

(4) Further Proceedings on Order.

In the event any trial court enters a final order of pretrial detention, the defendant may obtain review by motion to the appropriate appellate court. If motion for review is taken to the supreme court or the district court of appeal, notice and copy of such motion shall be served upon the attorney general and the state attorney: if review is taken to the circuit court, service shall be upon the state attorney,

(d) Length of Detention.

If ordered detained pending trial pursuant to sub-paragraph (4)(b) of Section 907.-041 of the Florida Statutes, the defendant may not be held more than ninety (90) davs. Failure of the state to bring the defendant to trial within that time shall result in his release from detention subject to any conditions of release, unless the trial delay was requested or caused by the defendant or his counsel.

RULE 3.133 PRETRIAL PROBABLE CAUSE DETERMINATIONS AND ADVERSARY PRELIMINARY HEARINGS

(renumbered only)

1982 Committee Note: Rule 3.131(d) is intended to replace former Rule 3.130(f). and therefore contemplates all subsequent modifications of bail: including all increases or reductions of monetary bail, or any other changes sought by the State or by the defendant.

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

I agree with these rule changes except that portion of new Criminal Procedure Rule 3.132(c)(1) which provides that the state attorney has the burden of showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida Statutes (Supp. 1982). This is a revision of the rule pror posed by the Criminal Procedure Rules Committee and is contrary to the express provisions of section 907.041.

The committee’s proposed rule, which is consistent with chapter 907, provides that the state attorney has the burden of showing by a substantial probability the need for pretrial detention, pursuant to the criteria in section 907.041. I would approve the rule as proposed by the committee. Substantial probability is the test established by the legislature in section 907.041(4)(b) and is the appropriate test.

I do not agree with the Public Defender Association’s rationale for suggesting that the appropriate burden of proof that the state must meet to show the need for pretrial detention is beyond a reasonable doubt. The state should not have to meet the same degree of proof to establish the need for pretrial detention as it is required to meet to convict a defendant. Moreover, even if I did agree, we should not adopt a standard of proof different from that already established by section 907.041.

Accordingly, I would adopt rule 3.132(c)(1) as proposed by the Criminal Procedure Rules Committee.

BOYD, J., concurs.


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Nathaniel WATERS, Respondent.
    No. 61036.
    Supreme Court of Florida.
    July 28, 1983.

      Jim Smith, Atty. Gen., and Laura R. Morrison and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court upon the state’s petition for review of the decision of the district court of appeal, reported as Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981). The district court held that the evidence was insufficient to support respondent Nathaniel Waters’ conviction of attempted burglary. In reaching the question of the sufficiency of the evidence, however, the district court passed upon other questions which it has certified as being of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent was charged with attempted second-degree burglary in violation of sections 810.02 and 777.04(1), Florida Statutes (1979). The information alleged that respondent had attempted to unlawfully enter the dwelling of John Rush with intent to commit the offense of theft therein. The case was tried to the court sitting without a jury. The occupant of the dwelling, John Rush, testified that he caught respondent in the act of trying to break into his rented room which was locked with a padlock on the outside. Investigating officers testified that they observed evidence of the attempted breaking in the form of indentations and a bent padlock hasp on the door to Rush’s room. John Rush testified that his clothes, stereo phonograph, and television set were inside the room. After hearing all of the testimony, including respondent’s claim of innocence, the trial judge found respondent guilty of attempted burglary.

On appeal, the district court held that the evidence failed to prove the element of intent to commit theft. This element could only have been proved by circumstantial evidence, the court reasoned, and the circumstances shown were not inconsistent with every reasonable hypothesis other than the hypothesis of an intent to commit theft. The court directed that judgment be entered adjudicating respondent guilty of attempted trespass.

Although the information alleged that at the time of the attempted unlawful entry the accused intended to commit theft inside the dwelling, the state argued to the district court that pleading and proof of intent to commit a specific offense were unnecessary. The state also argued that section 810.07, Florida Statutes (1979), could be relied upon to establish proof of the requisite criminal intent. So, the district court certified the following questions of great public importance:

1. In a prosecution for burglary under section 810.02, Florida Statutes (1979), is it necessary for the state to allege an intent to commit a specific offense?
2. Is the statutory rebuttable presumption contained in section 810.07, Florida Statutes (1979), sufficient to prove a prima facie case of intent to commit the specific offense of theft?

401 So.2d at 1133.

With regard to the first certified question, our answer is that an indictment or information charging burglary need not specify the offense the accused is alleged to have intended to commit, although it must allege the essential element of intent to commit an offense. The traditional practice, as respondent correctly points out, has been to require allegation of intent to commit a specified offense and to require proof of such intent. See, e.g., Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Jalbert v. State, 95 So.2d 589 (Fla.1957); Turknett v. State, 116 Fla. 562, 156 So. 538 (1934); Walker v. State, 44 Fla. 466, 32 So. 954 (1902); Clifton v. State, 26 Fla. 523, 7 So. 863 (1890); Charles v. State, 36 Fla. 691, 18 So. 369 (1895); Jackson v. State, 300 So.2d 47 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 753 (Fla.1975); Turner v. State, 267 So.2d 882 (Fla. 2d DCA 1972); Dobry v. State, 211 So.2d 603 (Fla. 3d DCA 1968); Bonamy v. State, 205 So.2d 707 (Fla. 3d DCA 1968); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA), cert. denied, 207 So.2d 452 (Fla.1967).

Although there may be exceptions where the statutory language is so generic that an accusation in the language of the statute would not be sufficiently definite, State v. Dilworth, 397 So.2d 292 (Fla.1981), in general an indictment or information framed substantially in the language of the statute is sufficient. State v. Covington, 392 So.2d 1321 (Fla.1981); Martinez v. State, 368 So.2d 338 (Fla.1978). We therefore hold that an indictment or information charging burglary is not required to specify the offense which the accused is alleged to have intended to commit. If all the essential statutory elements of the offense are alleged, the accusatory document will generally be deemed sufficient. Where an indictment or information framed substantially in the language of the statute is nevertheless “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense,” Fla.R.Crim.P. 3.140(o), it will still be the duty of the trial judge to dismiss the indictment or information upon motion of the defendant.

The early cases establishing the requirement of detailed specificity in indictments and informations were decided long before this Court adopted broad reciprocal discovery procedures. Our present discovery rules provide defendants with a much better means for avoiding surprise or embarrassment in the preparation of a defense than just the terms utilized in a charging document. Further, trial courts have the authority to remedy a lack of definiteness by granting a defendant’s motion for a statement of particulars. Fla.R. Crim.P. 3.140(n). In this decision, we merely hold that in a burglary charge it is not per se required that the particular offense which the accused allegedly intended to commit in the premises be specified. This specificity will have to be furnished by the prosecution before the case goes to trial if timely requested by the defendant. Although the better practice is to provide specificity in the charging document, it is not fundamental error to use the general phraseology of the statute on which the charge is based. There clearly has been no showing of prejudice in this cause.

The essential elements of burglary as defined in section 810.02 are (1) entering or remaining in, (2) a structure or conveyance, (3) with intent to commit an offense therein. Since the element of specific criminal intent may generally be alleged in the language of the statute, the indictment or information sufficiently alleges this element if it sets forth that the accused acted “with the intent to commit an offense therein.” § 810.02(1), Fla.Stat. (1981). Of course, such intent, along with the other elements, must then be proved beyond a reasonable doubt in order for a verdict of guilt and judgment thereon to be proper. As a practical matter, where the state has evidence of the intent element, such evidence will generally show intent to commit a specific offense. In general, therefore, it will not be difficult for the state to specify the offense in the indictment or information. For this reason we expect that the traditional practice of specifying the offense will continue. We merely hold that specification of the offense intended is not so essential a part of the intent element as to require that it always be set out in the charging document.

The second certified question pertains to the operation and effect of section 810.07, Florida Statutes (1979), which provides:

In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.

In framing the certified question, the district court was mindful of the fact that in this case the information alleged intent to commit theft. Thus the court was focusing on the facts of this case when it asked us whether section 810.07 is “sufficient to prove a prima facie case of intent to commit the specific offense of theft[.]” In this case, however, section 810.07 is inapplicable on its face because here the charge was attempted burglary rather than burglary and because here there was no proof of entering, but only of an attempt to break and enter. It is elementary that penal statutes are to be strictly construed. We therefore decline to expand the scope of section 810.07 beyond the clearly expressed legislative intent.

In order to provide guidance to the courts, however, we will attempt to respond to the certified question, which we modify to read as follows: “In a trial on a charge of burglary, is proof of the factual elements set out in section 810.07 sufficient to establish a prima facie case of intent to commit an offense?”

The predecessor of section 810.07 was first enacted in 1895. Ch. 4405, § 5, Laws of Fla. (1895). However, the statute has been the subject of surprisingly little judicial treatment at the appellate level until recently. Looking at the plain language of the statute, we can see that it sets out three factual elements: entry, stealth, and lack of consent. If proved, the statute provides, the facts thus shown “shall be prima facie evidence of entering with intent to commit an offense.” That is, proof of the three elements will always be deemed to be a sufficient showing to allow , a case of burglary to go to the jury even if there is no other evidence of the defendant’s state of mind at the time of the unlawful entering, and will be legally sufficient proof of intent to support a verdict. Thus section 810.07 provides the state with an alternative method of proving a charge of burglary when it is unable to adduce any evidence of the defendant’s criminal intent when unlawfully entering a structure or conveyance.

In State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980), the court concluded that section 810.07 provided an alternative means of alleging the crime of burglary. The court was proceeding on the assumption, however, that a charge under section 810.02 requires specification of the offense intended. Since in the present decision we abrogate the rule that the allegation of intent in a charge of burglary must always specify the offense intended, the basis of the Fields court’s suggestion is now removed. All indictments and informations charging burglary must allege the essential element of intent as set forth in the statutory definition. See Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981). Section 810.07 only comes into operation as an alternative means of proving the element of intent. As modified, the second certified question is answered in the affirmative.

The remaining issue before us is the state’s contention that the district court improperly substituted its judgment for that of the trier of fact on the issue of whether the evidence was sufficient to show that respondent had the intent to commit theft when he attempted to break into the room of John Rush. The district court proceeded under the traditional rule requiring pleading and proof of intent to commit a specific offense. Intent to commit the specific offense of theft was alleged in this case.

The testimony at trial was that the occupant of the room emerged from a bathroom, into the hallway and found respondent trying to break into the padlocked room with a pair of pliers. The occupant of the room summoned the police who saw evidence of the attempted breaking. The occupant of the room testified that he had a television, a stereo, and clothes in the room, and that he had not given respondent permission to enter his room or tamper with his lock.

The element of intent, being a state of mind, often can only be proved by circumstantial evidence. See, e.g., Scott v. State, 137 So.2d 625 (Fla. 2d DCA 1962). The district court reasoned that the special rule pertaining to the sufficiency of circumstantial evidence applied: the circumstances must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Mayo v. State, 71 So.2d 899 (Fla. 1954). The court held that under such rule the evidence here was legally insufficient:

The state contends that it is obvious from the circumstances of the attempted entry that Waters had some unlawful act in mind once he gained entry to the apartment and that it is probable that Waters intended to commit theft once inside. Although we agree that the circumstances of the attempted entry may give rise to an inference that Waters intended to commit some offense while inside, we cannot agree that such circumstances, standing alone, were sufficient to establish his intent to commit the specific offense of theft. That Mr. Waters intended to commit theft may be one logical inference drawn from the circumstances presented here. However, another logical inference might be that Mr. Waters intended to commit some other offense. Simpson, supra. [Simpson v. State, 81 Fla. 292, 87 So. 920 (1921).] That being the case, his conviction for attempted burglary with the intent to commit the specific offense of theft cannot stand.

401 So.2d at 1133 (footnote omitted).

In Simpson v. State, 81 Fla. 292, 87 So. 920 (1921), relied upon by the district court below, the prosecution was for breaking and entering with intent to commit rape. The evidence showed that a woman and her children were provided with temporary quarters in a shanty near a turpentine camp where her husband was employed. The defendant had previously resided in the same shanty. On the night in question the woman was awakened by the sound of the defendant opening the window. She struck a light, saw the defendant’s face in the window, and screamed. The man immediately receded from the opening and left the premises. The Court held that the state had failed to produce sufficient evidence to prove the specific intent to commit the crime of rape under the circumstantial evidence rule. The Court explained:

Certain circumstances, unexplained, might tend to prove the intent, such as laying hold of a woman, or running after her in an attempt to do so, to establish intent to commit rape; the possession of a murderous weapon, ready for use, with other circumstances to establish the intent to kill; the possession of highly explosive material, to establish intent to commit arson; or the unexplained taking or attempting to take personal property, as evidence of intent to commit larceny. Some courts have held that from the mere breaking and entry the intent to commit larceny may be inferred. State v. Worthen, 111 Iowa 267, 82 N.W. 910; Moseley v. State, 92 Miss. 250, 45 South. 833. If such a presumption is warranted, which we do not hold, it is such a presumption as would prevent a conviction of intent to commit any other felony, in the absence of facts rebutting that presumption, and raising the presumption of intent to commit a different offense.
It is a well-settled rule that, in order to convict on circumstantial evidence, the facts must be such as to exclude every reasonable hypothesis except that of the guilt of the accused of the offense charged. In this case the accused was charged with an intent to commit a specific act. Only the breaking and entering, and the presence of a woman and children in the room, were proven. This does not exclude the hypothesis that he intended to commit murder, larceny, arson, or any other felony.
The circumstantial evidence in this case falls short of the essential of excluding every other hypothesis but that of the prisoner’s guilt of the offense charged.

Id. at 297-98, 87 So. at 922.

In the present case, the evidence showed that the door through which respondent was attempting to break and enter was padlocked from the outside. From this fact it may be inferred that respondent knew that there was no one inside the room, thus negating any intent to commit a crime against a person such as murder, robbery, rape, assault, or battery. The evidence showed that respondent carried a pair of pliers, but no explosive or flammable materials, thus negating any intent to commit the offense of arson inside the room. The circumstances shown are inconsistent with any hypothesis of intent to commit these or any other crimes except theft. But they are not inconsistent with the hypothesis that respondent intended to commit theft.

In Turknett v. State, 116 Fla. 562,156 So. 538 (1934), the defendant was charged with attempted breaking and entering of a building with intent to steal goods of a value of $50 or more. At the time the statutes made a distinction between burglary with intent to commit grand larceny, a felony, and burglary with intent to commit petit larceny, a misdemeanor. The degree of seriousness of the burglary charge depended on which level of offense was intended, so the value of the goods to be stolen was an important matter of proof. The breaking and entering was unsuccessful and no goods were actually stolen. There was no evidence of what property, if any, was in the building, so there was nothing from which to infer what the accused intended to steal. The Court said:

If the evidence had shown that there was property of value in the building, the subject of larceny, then the jury might have assumed that the accused was attempting to break into the building for the purpose of committing larceny. But, without some evidence as to what property the accused was interested in taking, the jury could not assume that the intent was evident to commit the higher of the two offenses denounced by the statutes.

Id. at 564, 156 So. at 538.

In Bonamy v. State, 205 So.2d 707 (Fla. 3d DCA 1968), the prosecution was for breaking and entering of a building with intent to commit grand larceny. In reversing the conviction the court said, “The evidence failed to show that any actual grand larceny was committed, or that the appellants had any specific intent to commit grand larceny, or what items, or goods, of value, if any, were within the confines of the building.” Id. at 707. The opinion therefore strongly suggested that a showing of the presence of goods available to be stolen would have been sufficient to support an inference of intent. In the present case, the occupant of the room testified that his television, stereo, and clothing were in the room.

There are numerous other cases in which the accused burglar did not succeed in actually stealing anything, but where the specific intent to steal was held to have been proved by the circumstances, including the presence of property or goods available to be stolen. See, e.g., Rebjebian v. State, 44 So.2d 81 (Fla.1949); Walker v. State, 44 Fla. 466, 32 So. 954 (1902); Clifton v. State, 26 Fla. 523, 7 So. 863 (1890); R.A. v. State, 400 So.2d 1059 (Fla. 3d DCA), rev. denied, 407 So.2d 1105 (Fla.1981); Eaton v. State, 307 So.2d 915 (Fla. 3d DCA), cert. denied, 316 So.2d 286 (Fla.1975); Jackson v. State, 300 So.2d 47 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 753 (Fla.1975); Turner v. State, 267 So.2d 882 (Fla. 2d DCA 1972); Roundtree v. State, 236 So.2d 140 (Fla. 3d DCA 1970); Dobry v. State, 211 So.2d 603 (Fla. 3d DCA 1968); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA), cert. denied, 207 So.2d 452 (Fla.1967); Jones v. State, 192 So.2d 285 (Fla. 3d DCA 1966). The question of the defendant’s intent to steal is a question of fact to be determined by the trier of fact based upon all of the circumstances shown by the evidence. Dobry v. State, 211 So.2d 603 (Fla. 3d DCA 1968); Jones v. State, 192 So.2d 285 (Fla. 3d DCA 1966).

In the present case, we believe that the circumstances shown by the evidence were such that the trier of fact was properly able to conclude that at the time respondent attempted to unlawfully enter the room, he intended to commit the crime of theft once he gained entry. Therefore the district court of appeal erred by improperly substituting its judgment for that of the trier of fact on this evidentiary issue.

We now reiterate our conclusions. Indictments and informations charging the crime of burglary or attempted burglary must allege that the accused committed the unlawful act with the intent to commit an offense but need not always specify the offense. Proof of the elements set out in section 810.07 is sufficient to establish pri-ma facie evidence of such intent in a trial on a charge of burglary. In the present case, in which intent to commit a specified offense was alleged, there was circumstantial evidence from which the trier of fact could properly conclude that the defendant here attempted to enter with the intent to commit theft.

The decision of the district court of appeal is quashed and remanded with directions to reinstate the judgment of the trial court.

It is so ordered.

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

      . Section 810.02 provides:
      (1) “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
      (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
      (a) Makes an assault upon any person.
      (b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.
      (3)If the offender does not make an assault or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

      . Section 777.04(1) provides:
      (1) Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration or is intercepted or prevented in the execution of the same, commits the offense of criminal attempt and shall, when no express provision is made by law for the punishment of such attempt, be punished as provided in subsection (4).

      . In State v. Hicks, 421 So.2d 510 (Fla.1982), this Court held that the statutory provision pertaining to the lack of consent of the owners or occupiers of the structure or conveyance is not an essential element of the crime but creates a defense that must be raised affirmatively.

      . The establishment of such a prima facie case of intent, however, does not take away the defendant’s presumption of innocence. The presumption of innocence still exists even after the state has made out a prima facie case of intent. The circumstances shown by evidence offered by the state or by the defendant and aided by the presumption of innocence may operate to rebut or impair the prima facie case made out by the state, thus rendering a conviction based thereon improper. McNair v. State, 61 Fla. 35, 55 So. 401 (1911). See Fitzgerald v. State, 339 So.2d 209 (Fla.1976).


text:
    STATE of Florida, Petitioner, v. Michael Todd ROZIER, Respondent. STATE of Florida, Petitioner, v. Joe YOUNG, Respondent.
    Nos. 61139, 61167.
    Supreme Court of Florida.
    July 28, 1983.
    Jim Smith, Atty. Gen. and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondents.
   BOYD, Justice.

These cases are before the Court on the state’s petitions for review of two decisions of the District Court of Appeal, Fifth District, reported as Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981), and Young v. State, 403 So.2d 3 (Fla. 5th DCA 1981). The decisions are in conflict with State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980), and Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

These cases have to do with the construction and application of sections 810.02 and 810.07, Florida Statutes (1979), pertaining to the definition and proof of the crime of burglary. Michael Todd Rozier was charged with burglary in a two-count indictment although clearly there was only one factual event upon which the allegations were based. The two counts charged the crime upon alternative theories of criminal liability and proof. The first count alleged that respondent had entered or remained in a structure (a dwelling) with intent to commit the offense of theft therein. The second count alleged that he had entered or remained in the dwelling stealthily and without the consent of the owner. The jury returned verdicts finding respondent not guilty on the first count but guilty on the second count. The main question on appeal was whether allegations of the elements of section 810.07 were a sufficient substitute for an allegation of intent to commit an offense. The district court held that they were not and that count two of the information was deficient for failure to allege that the defendant entered the dwelling with the intent to commit an offense therein. On the ground that count two thus failed to allege an essential element of the offense, the district court set aside the judgment and ordered respondent adjudicated guilty of trespass.

In State v. Waters, 436 So.2d 66 (Fla.1983), we have held that an information charging burglary need not always specify the offense the defendant is alleged to have intended, but must always allege intent to commit an offense. Since count two of the information did not contain an allegation of intent to commit an offense, and since such intent is an essential element of the offense, the information was insufficient to support the verdict.

The state argues that even if count two of the information was defective for failure to allege the element of intent, the defect need not result in reversal since it was waived when Rozier went to trial on the information without moving to dismiss count two. Under the circumstances of this case, however, we are unable to conclude that the defect did not affect the fundamental fairness of the trial. Under count two of the information, the jury may have been under the impression that proof of stealthy entry and lack of consent pursuant to section 810.07 constituted conclusive proof of guilt of burglary. Proof of the elements of section 810.07 does not, however, prove the crime but only constitutes prima facie evidence of intent to commit an offense. See Fitzgerald v. State, 339 So.2d 209 (Fla.1976); McNair v. State, 61 Fla. 35, 55 So. 401 (1911). Thus proof of the section 810.07 elements is a sufficient evidentiary basis for a finding of the intent element but the intent element, before being thus proved, must be placed in issue by being alleged in the charging document. State v. Waters, 66 So.2d 436 (Fla.1983). We therefore conclude that the district court was correct in holding that the information upon which the verdict of guilt of burglary was based was insufficient to support such verdict.

The information in the Young case similarly attempted to make stealth and lack of consent into an allegational substitute for the element of intent to commit an offense. Therefore the information failed to allege all the essential elements of burglary. The jury therefore may not have understood that the element of intent to commit an offense needed to be proved beyond a reasonable doubt and that evidence of entry, stealth, and lack of consent was relevant to but not conclusive of the issue of intent. State v. Waters, 436 So.2d 66 (Fla.1983). The district court was therefore correct in reversing the conviction.

The result of both decisions of the district court of appeal are approved.

It is so ordered.

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

      . Section 810.02 provides:
      (1) “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
      (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
      (a) Makes an assault upon any person.
      (b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.
      (3) If the offender does not make an assault or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the offense and the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

      . Section 810.07 provides:
      In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.


author: BOYD, Justice. ADKINS, Justice,

text:
    Sylvia SCHOEN and David Schoen, Petitioners, v. Robert GILBERT and Highland Insurance Company, Respondents.
    No. 61331.
    Supreme Court of Florida.
    July 28, 1983.

      Jay M. Levy of Silver, Levy & Hershoff, Miami, for petitioners.
    Henry H. Harnage of Worley & Harnage, and Worley & Gautier, Miami, for respondents.
   BOYD, Justice.

We have for review a decision of the Third District Court of Appeal, Schoen v. Gilbert, 404 So.2d 128 (Fla. 3d DCA 1981), which conflicts with Ellis v. McCaskill, 382 So.2d 808 (Fla. 2d DCA), review denied, 389 So.2d 1112 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner Sylvia Schoen (plaintiff in the trial court) was a social guest of Robert Gilbert in his home, which was constructed with a six-inch drop between the foyer and the living room. While seated in the kitchen Gilbert invited Ms. Schoen to look around, but did not accompany her. Because of poor lighting Ms. Schoen did not see the step separating the foyer and living room. As a result she fell while entering the living room. She sued Gilbert for damages resulting from her injuries, claiming he was negligent in failing to warn her of the step. The trial court granted a summary judgment in Gilbert’s favor, and the district court of appeal affirmed.

We approve the district court’s decision. The law is well settled “that a difference in floor levels does not of itself constitute failure to use due care for the safety of a person invited to the premises and there is no duty to issue warning of such condition when it is obvious and not inherently dangerous.” Hoag v. Moeller, 82 So.2d 138, 139 (Fla.1955). See also General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975); Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964). Petitioner argues that because of the poor lighting the step was not obvious and was therefore rendered inherently dangerous. We cannot agree with such reasoning. The amount of interior lighting cannot transform a difference in floor levels into an inherently dangerous condition. “That type of construction is common and no one entering a home can assume that the floors of all rooms in the same story have the same level, blindly travel on the presumption, disregard his own safety, stumble, fall, and recover.” Hoag v. Moeller, 82 So.2d at 139.

Next petitioner argues that whether a homeowner has the duty to warn a guest of a difference in floor levels is “a factual question not susceptible to determination by summary judgment.” Ellis v. McCaskill, 382 So.2d at 810. We disagree. Because a difference in floor levels is not an inherently dangerous condition, even in dim lighting, a homeowner has no duty to warn of such condition as a matter of law. We find that the trial court correctly granted summary judgment in respondent’s favor. We therefore approve the decision of the district court of appeal and disapprove Ellis v. McCaskill.

It is so ordered.

ALDERMAN, C.J., and OVERTON and McDONALD, JJ., concur.

ADKINS, J., dissents with an opinion.

EHRLICH, J., dissents.

ADKINS, Justice,

dissenting.

Petitioner, Sylvia Schoen, (plaintiff in the trial court) was a social guest of Robert Gilbert in his home, which was constructed with a six-inch drop between the foyer and the living room. Gilbert invited her to see the living room, but did not accompany her. Plaintiff, unaware of this condition, fell while entering the living room, which was “shrouded in semi darkness at the time.” She sued Gilbert for her injuries resulting from his negligence and failure to warn her of this step. The trial court entered a summary judgment in favor of defendant, Gilbert. The final summary judgment was affirmed upon appeal and this petition for review resulted. In my opinion there are sufficient facts to give rise to a triable issue as to whether the condition complained of was so concealed or hidden as reasonably to require a warning or other protectable measures.

Negligence is the failure to observe, for the protection of another’s interest, such care and precaution as circumstances demand, or the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances. Seaboard Coastline Railroad Co. v. Griffis, 381 So.2d 1063 (Fla. 1st DCA), cert. denied, 376 So.2d 72 (Fla.1979).

Insofar as the landowner’s duty is concerned, there is no distinction in this state between invitees and social guests, so the principles enunciated in the majority opinion are applicable to places of business. Wood v. Camp, 284 So.2d 691 (Fla.1973). It is the duty of a landowner to warn his invitees of latent perils which are known or should be known to the owner but which are not known to the invitee or which, by the existence of due care, would not be known to him. Rice v. Florida Power and Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979).

A difference in floor level, particularly in the living room area of a private room, is not in itself an obstacle or dangerous condition requiring warning by the home owner. General Development Corporation v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975); Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964). However, circumstances could arise which impose a duty upon the homeowner to warn a guest.

In Ellis v. McCaskill plaintiff had never been in the defendant’s home before the accident, which occurred during a tour of the house. The garage area of the house had a stepdown of approximately six inches to eight inches. Plaintiff, accompanied by the defendant, proceeded into the garage area. The plaintiff fell when she neither saw nor had been told of the stepdown. Reversing a final judgment summary, the court said:

Whether or not the step-down in the garage of the defendant’s home was a condition that required plaintiff to be forewarned of it seems to be, under the circumstances of this case, a factual question not susceptible to determination by summary judgment.

382 So.2d at 809-10.

When plaintiff in the case sub judice proceeded through the house into an area “shrouded in semi darkness”, she had the right reasonably to expect that the route ahead was free of the particular physical impediment which caused her injury. It was for the jury to determine, whether under the circumstances, the dangerous condition required a warning. See Brant v. Van Zandt, 77 So.2d 858 (Fla.1954).

The critical question to be determined in this case is whether the lighting condition was such that a reasonable and prudent person would ordinarily have given a warning. Defendant says it was a bright and sunny day; the plaintiff said the room was dark; the district court of appeal in its opinion said the room was “shrouded in semi-darkness”. This is an obvious factual dispute as to a critical element.

Any defense based on the invitee’s negligence is no longer a complete bar to recovery in a negligence action. The doctrine of comparative negligence applies when this defense is raised. The plaintiff would be barred from recovering damages for loss or injury caused by negligence of another only when her negligence is shown to be the sole legal cause of the damage. Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Zambito v. South Land Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA 1980).

I would adopt the dissent authored by Judge Daniel S. Pearson.

The decision of the district court of appeal should be quashed.