text:
    Linda Gail BURGESS and Kenneth Clay v. STATE.
    8 Div. 151.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
    Fulton S. Hamilton of Simpson, Hamilton & Ryan, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

This is an appeal from a judgment of delinquency against two juveniles. In a petition in the juvenile court, fourteen-year-old Linda Gail Burgess was charged with aiding and abetting seventeen-year-old Edward Cowan, Jr. in the offense of rape. In. a separate petition, sixteen-year-old Kenneth Clay was charged with first degree rape. Cowan was also charged with first degree rape. Although tried together, the juveniles were represented by separate counsel in the juvenile court. Clay and Cowan were declared delinquent for having committed the offense of sexual misconduct. Alabama Code 1975, § 13A-6-65. Burgess was declared delinquent for having aided and abetted in that same sexual misconduct. Clay had prior adjudications of delinquency and was committed to the Alabama Department of Youth Services. Cowan and Burgess were placed on probation conditioned upon the service of 60 days in the detention home. This appeal involves only Burgess and Clay. Although three issues are presented, we address only one because that issue is dispositive of this cause.

The trial judge erred in finding the juveniles guilty of sexual misconduct.

The sixteen-year-old victim in this case, Burgess, Clay and Cowan were mentally retarded students in special education classes at Bob Jones High School in Madison, Alabama. During school hours on March 7, 1984, the four students got out of class and slipped off to the gym. They went into the boys restroom where Burgess and Cowan engaged in sexual intercourse. Both Cowan and Clay had intercourse with the victim. These facts are undisputed.

The State’s evidence tended to show that the victim was an unwilling participant in the venture, too scared to resist. The defense painted the victim as willingly engaging in the sexual activities and offering no resistance.

The State failed to prove that the defendants were guilty of rape in the first degree because there was no evidence of forcible compulsion. Alabama Code 1975, § 13A-6-61. The State argued that the victim offered all the resistance she could with her diminished mental capacity. However, the trial court found: “I will just say this from my own observation of [the victim]. It is my opinion that she had the capacity to consent.”

At the conclusion of all the evidence, the trial court also found no proof of forcible compulsion:

“THE COURT: The Court is not convinced beyond a reasonable doubt that the acts which have been testified about were forcible compulsion. However, the Court is convinced beyond a reasonable doubt that those same acts were without the consent of Angie Lamb, and, therefore, finds Kenneth Clay and Edward Cowan, Jr., delinquent for having violated the conditions of Alabama’s Code titled Section 13A-6-65 prohibiting sexual misconduct.
“The Court similarly finds that Linda Gail Burgess is delinquent for having aided or abetted Edward Cowan, Jr., in committing the offense of sexual misconduct pursuant to Section 13A-6-65.”

A person commits the crime of sexual misconduct if “being a male, engages in sexual intercourse with a female without her consent, under circumstances other than those covered by sections 13A-6-61 [rape in the first degree] and 13A-6-62 [rape in the second degree].” Alabama Code 1975, § 13A-6-65(a)(l).

An element of the offenses of rape, first and second degree, and sexual misconduct is “that the sexual act was committed without consent of the victim.”

“§ 13A-6-70. Lack of consent.
“(a) Whether or not specifically stated, it is an element of every offense defined in this article, with the exception of subdivision (a)(3) of section 13A-6-65, that the sexual act was committed without consent of the victim.
“(b) Lack of consent results from:
(1) Forcible compulsion; or
(2) Incapacity to consent; or
(3) If the offense charged is sexual abuse, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.
“(c) A person is deemed incapable of consent if he is:
(1) Less than 16 years old; or
(2) Mentally defective; or
(3) Mentally incapacitated; or
(4) Physically helpless.”
Alabama Code 1975, § 13A-6-70 (emphasis added).

The trial judge found there was no evidence of forcible compulsion. The record supports his finding. There was nothing to show the existence of forcible compulsion as defined by § 13A-6-60(8): “Physical force that overcomes earnest re-sistence or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

The trial court’s finding that the sixteen-year-old victim had the capacity to consent precludes our finding that she was incapable of consenting under § 13A-6-70(b)(2) or that sections 13A-6-70(c)(2) or (3)apply.

Since there is a total failure of any testimony that the sexual act was committed without the victim’s consent as defined by § 13A-6-70(b), the convictions of sexual misconduct were unjustified. Under our Criminal Code, lack of consent is specifically defined and results from either forcible compulsion as defined by § 13A-6-60(8) or incapacity to consent as defined by § 13A-6-70(c).

“Where there is insufficient proof of forcible compulsion, an acquittal of the charge of rape in the first degree precludes a conviction of sexual misconduct by forcible compulsion upon the same evidence.” People v. Wells, 48 A.D.2d 934, 369 N.Y. S.2d 538, 539 (1975). The element of forcible compulsion for both first degree rape and sexual misconduct is identical. People v. Dailey, 94 Misc.2d 941, 405 N.Y.S.2d 986, 987 (1978). “The defendant’s acquittal of the charge of rape in the first degree, upon the trial court’s finding that there was insufficient proof of forcible compulsion ..., precluded a conviction of sexual misconduct by forcible compulsion upon the same evidence.” People v. McEaddy, 30 N.Y.2d 519, 330 N.Y.S.2d 65, 280 N.E.2d 891 (1972).

The judgment of the circuit court is reversed and the cause rendered.

REVERSED AND RENDERED.

All Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Billy Wayne TAYLOR v. STATE.
    8 Div. 167.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.

      Patrick A. Jones, of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Billy Wayne Taylor was indicted and convicted for the possession of a forged instrument in the second degree in violation of Alabama Code 1975, § 13A-9-6. He was sentenced as a habitual offender to thirty years’ imprisonment. Three issues are raised on appeal.

I

Taylor contends that the trial court abused its discretion when it refused to grant a continuance to allow the defense to secure the presence of an absent and allegedly material and essential witness. We find no error because the alleged testimony of this witness, the defendant’s ex-wife, was fabricated and false.

Defense counsel stated that Ms. Moon would testify that she was with the defendant during the time in question and that she and the defendant did not go to the grocery store where the forged check was cashed.

At the sentencing hearing, the defendant made a statement before sentence was pronounced. He admitted being in the store and claimed that another man “just sidestepped me and dropped the check down” and he took his hand and pushed it across the counter “and that's how my fingerprints got upon it.” The trial judge noticed that this statement conflicted with the defendant’s trial testimony: “Well, of course, what you’ve just told me was different from your account of how this incident occurred that you gave to the jury during the trial.” The defendant replied that “I liked to got beat to death up there [apparently, meaning prison] that last time I was up there and that’s the reason that I didn’t tell it.” '

To find error in this case would be to sanction perjury and fraud. The defendant admitted that he was present in the very store where Ms. Moon would allegedly have testified that he was not present. An accused cannot be permitted to take advantage of his own deceit or the fabrications of his witnesses and maintain that he was denied a fair trial.

II

The State established a proper chain of custody for the forged check, despite the defendant’s argument that “the State should have been required to show that the defendant did not touch the check subsequent to the occurrence of the alleged offense.” Appellant’s Brief, p. 15.

Royer Clarke identified the check and testified that he noticed his checkbook was missing on November 19, 1983. Geraldine Echols testified that on December 9, 1983, the defendant presented the $40 check to her to pay for some merchandise in her store.

At the suppression hearing, Sheriff’s Deputy Charles Richard Franklin testified that he arrested the defendant on December 14th and questioned him about the check. He showed the check to the defendant but did not allow him to touch it. At that time the check was “enclosed inside this plastic case.” The defendant testified that he had his “hands on the check twice” during his arrest and interrogation.

Before the jury, Deputy Franklin testified that he placed the check inside the plastic case “prior to even the arrest of the defendant” and the check “never left the plastic at the time the defendant was in the vicinity of the check.” He specifically denied that the defendant was “actually allowed to put his hands on the check itself.” He sent the check to the FBI laboratories in Washington and received it back.

At trial, the objection was “improper foundation of where that came from.” The record shows that this objection was properly overruled. In the presence of the conflicting testimony of whether or’ not the defendant touched the check, the admission of the check was within the discretion of the trial court after weighing the credibility of the witnesses.

Ill

The defendant argues that his thirty-year sentence is so excessive as to constitute cruel and unusual punishment. We disagree.

The defendant was sentenced as a habitual offender, Alabama Code 1975, § 13A-5 — 9(c)(1), with four prior felony convictions: false pretense (1975), falsely obtaining a controlled substance (1974), and two forgery convictions (1970).

The judge’s comments at the sentencing hearing explain the sentence:

“[Yjou’ve got four prior felonies, and they’re essentially crimes of the same nature as the one we’re dealing with here, and, as I was saying, I agree with your attorney that $40 is not a great deal of money, and, if this was a first offense and involving a crime in that amount, I’d deal with it a whole lot differently, but, as you know, because of the Alabama Habitual Felony Offender Act, the minimum sentence in your circumstances starts at fifteen years.
“THE DEFENDANT: Yes, sir.
“THE COURT: It does appear from what’s been made available to me that there have been no crimes committed by you for a number of years [9]—
“THE DEFENDANT: Yes, sir.
“THE COURT: —but then again I come back to the fact that the four felonies that are offered against you are essentially the same type of offense, and I just feel I have to deal with the case differently than I would if this were a first time offense.”

For the same reasons expressed by the trial judge, we find that the sentence is not disproportionate and does not constitute cruel and unusual punishment. Even applying the principles of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), which involved a sentence of life without parole, the punishment in this case is not offensive.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: ADKINS, Justice.

text:
    Mildred MEISTER, et al., Petitioners, v. Paul FISHER, et al., Respondents.
    No. 64223.
    Supreme Court of Florida.
    Dec. 20, 1984.
    Rehearing Denied Feb. 26, 1985.
    Sams, Gerstein & Ward, P.A., and Sam Daniels and Mark Hicks of Daniels & Hicks, Miami, for petitioners.
    Gordon James, III and Joseph S. Kashi of Conrad, Scherer & James, Fort Lauder-dale, for respondents.
    Larry Klein, West Palm Beach, amicus curiae for The Academy of Florida Trial Lawyers.
    Robert D. Peltz and. Rossman & Baum-berger, P.A., Miami, amicus curiae for Mary Kurtz.
   ADKINS, Justice.

The Fourth District Court of Appeal certified the following question to this Court as one of great public importance:

Should golf carts be included within the dangerous instrumentality doctrine enunciated in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), and as expanded in Reid v. Associated Engineering of Osceola, Inc., 295 So.2d 125 (Fla. 4th DCA 1974)?

Meister v. Fisher, 435 So.2d 981, 983 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the affirmative and hold that a golf cart that is being operated on a golf course is included within the dangerous instrumentality doctrine.

The facts of the case are not disputed. Petitioners Mildred Meister and her husband and respondent Paul Fisher were playing golf at the Emerald Hills Country Club. Petitioners and respondent, Paul Fisher, had each rented golf carts from the country club. When they approached the seventh hole, Mr. Meister turned their cart toward the restroom area to get a drink of water. The Fishers were following the Meisters. When Mrs. Meister got out of the golf cart, after it stopped moving, the cart driven by Fisher struck the Meisters’ cart in the rear. As a result, Mrs. Meister suffered personal injuries. She and her husband sued Fisher, Emerald Hills Country Club, and their respective insurers. The Meisters based their sole theory of liability against Emerald Hills on the dangerous-instrumentality doctrine. The trial court found, as a matter of law, that a golf cart is not a dangerous instrumentality. The district court affirmed, finding insufficient policy reasons in the record to apply the theory to golf carts.

This Court applied the dangerous-instrumentality doctrine to automobiles in Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917).

In that case we held that:

This form of vicarious liability is not based on respondent superior or an agency conception, but on the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent. Southern Cotton Oil v. Anderson, 80 Fla. 441, 86 So. 629 (1920).

Jordan v. Kelson, 299 So.2d 109, 111 (Fla. 4th DCA 1974).

There is no question that vehicles other than automobiles can qualify as such instrumentalities, and indeed, the doctrine in Florida has not been so limited. In later years it has been applied to trucks, buses, tow-motors and other motorized vehicles. See, e.g., Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551 (Fla. 3d DCA 1962). And although we have found no cases from other jurisdictions dealing with the precise issue involved here, those states which have enacted legislation in this area have not limited liability to the owner of an automobile. Instead, all of the statutes speak in terms of the owner of a motor vehicle. E.g., Cal.Veh.Code Ann. § 17150 (Deering 1972); Idaho Code § 49-1404 (1980); Iowa Code § 321.493 (1983); Michigan Stat.Ann. § 9.2101 (Callaghan 1981) [M.C.L.A. § 257.401]; N.Y.Veh. & Traf.Law § 388 (Consol. 1976).

A golf cart is clearly a motor vehicle. The legislature has recently specifically so defined it in section 316.003(68), Florida Statutes (1983), which states:

(68) GOLF CART. — A motor vehicle designed and manufactured for operation on a golf course for sporting or recreational purposes.

The same definition of golf cart is also set forth in section 320.01(22), Florida Statutes (1983). Coincidentally the legislature has also enacted section 316.212, Florida Statutes (1983), which prohibits the use of golf carts on public streets unless designated by a city or county as a permissible road for golf carts and only within a one-mile radius of a residence and the golf course. Other restrictions are also placed upon the use of golf carts on the public roads, such as the presence of adequate brakes, steering apparatus, safe tires, a rear view mirror and red reflectors on the front and rear. In a later appeal of the Southern Cotton Oil case, this Court discussed similar restrictions placed upon the operation of automobiles by the legislature. The Court then stated:

It is idle to say that the Legislature imposed all these restraints, regulations, and restrictions upon the use of automobiles, if they were not dangerous agencies which the Legislature felt it was its duty to regulate and restrain for the protection of the public.

80 Fla. at 456, 86 So. at 634. This observation applies with equal force to the restrictions that the legislature has now placed upon the operation of golf carts.

That the vehicle is being operated on the public highways of this state is likewise not required before the dangerous instrumentality doctrine can come into play. It is true that most of the Florida decisions applying this doctrine have made reference to the fact that the vehicle was being operated on the public highways. Some of the earlier cases even limited the doctrine to those vehicles operated on the public highways. See Crenshaw Brothers Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947). However, we believe that it was never the intention of this Court to so limit the doctrine. See Reid v. Associated Engineering of Osceola, Inc., 295 So.2d 125 (Fla. 4th DCA 1974).

We see neither reason nor logic in the view that a motor vehicle in operation, which is a dangerous instrumentality while being operated upon the public highway, somehow ceases to be a dangerous instrumentality the instant the driver causes it to turn off the public street or highway and onto a private drive or other private property. Although it is most probable that a motor vehicle being operated on private property would be moving at a slower speed than one being operated upon the public street or highway, common sense tells us that in all other respects such vehicle while in motion is equally dangerous to persons and property no matter where it is operated, and to make the owner’s liability for his permittee’s negligence in the operation of such vehicle depend upon whether the vehicle is on or off the public highway simply leads to absurd results.

Id. at 129.

Similarly, a golf cart when negligently operated on a golf course, has the same ability to cause serious injury as does any motor vehicle operated on a public highway.

Despite concluding, as we have today, that a golf cart on a golf course fulfills all the requirements of the dangerous instrumentality doctrine, the district court still refused to expand the doctrine because it was unable to tell from the record whether golf carts pose a sufficient danger to the public to impose vicarious liability. We have no difficulty in determining that they do. As the district court itself noted, Florida’s tremendous tourist and retirement communities make golf carts and golf courses extremely prevalent in this state. And there is evidence in this record from an expert who stated he has investigated numerous accidents involving golf carts that “the types of accidents caused by the operation of the carts are due to the particular design features of the carts and are identical to those involving other motor vehicle accidents.” (Emphasis supplied.) Furthermore, as we discussed earlier in the opinion, the recent legislation concerning golf carts indicates the legislature’s concern about the dangers of golf carts to the public.

Accordingly, we hold that the dangerous-instrumentality doctrine, which imposes liability upon the owner of a dangerous agency, when he intrusts it to someone who negligently operates it, applies to golf carts. In the instant case, the country club had rented the golf cart to Fisher. However, this factor does not call for a different result, since in Florida the doctrine clearly extends to and encompasses the bailment relationship. See Lynch v. Walker, 139 Fla. 188, 31 So.2d 268 (1947).

Therefore, we quash the decision of the Fourth District Court of Appeal in this case and we answer the certified question in the affirmative.

It is so ordered.

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

OVERTON, McDonald and SHAW, JJ., dissent.


author: PER CURIAM.

text:
    Bennie DEMPS, Appellant, v. STATE of Florida, Appellee.
    No. 64787.
    Supreme Court of Florida.
    Dec. 20, 1984.
    Rehearing Denied Feb. 27, 1985.
    John L. Carroll of Mandell and Boyd, Montgomery, Ala., for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Demps appeals the denial of his rule 3.850 motion following an evidentiary hearing on his claim that the state interfered with a defense witness. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and we affirm the trial court.

Demps was convicted of first degree murder and sentenced to death for killing Alfred Sturgis, a fellow inmate at Florida State Prison. We affirmed the conviction and sentence. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). The Governor signed his death warrant, and his execution was scheduled for June 29, 1982. Demps filed a motion for post-conviction relief, which was denied without hearing by the trial court. He appealed that denial and sought a stay of execution here. We affirmed the trial court’s denial of relief on all of Demps’ claims except the claim that the state interfered with a defense witness. We reversed and remanded to the trial court for an evidentiary hearing on that issue. We granted a stay of execution pending disposition of the issue. Demps v. State, 416 So.2d 808 (Fla.1982).

Demps sought to demonstrate at the hearing that the state, through Department of Corrections Investigator Bill Beardsley, induced Michael Squires not to testify that the state’s central witness, Larry Hathaway, had told Squires that he was pressured to testify and that he did not know who killed Sturgis. The defense put on numerous witnesses, including Squires. Larry Hathaway testified for the state that his testimony at trial had been truthful and that he had not told Squires that he knew nothing about the Demps case or that he was pressured by the state. The trial court denied the defense motion, stating:

Having heard the testimony of the witnesses and having observed the demean- or of each witness while testifying, and further having examined all exhibits filed in evidence, this court, with full and conscious realization of the significance and magnitude of the issues raised herein, finds that the Defendant has failed to prove his claim by any believable evidence.

The trial court’s order is supported by competent substantial evidence, and this Court will not “substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.” Goldfarb v. Robertson, 82 So.2d 504, 506 (Fla.1955) (citation omitted).

Demps claims that the trial court erred in sustaining the prosecution’s objection to the testimony of a witness regarding a prior consistent statement of Squires. The general rule regarding prior consistent statements, or bolstering testimony, is that such evidence is inadmissible absent impeachment based on an attempt to show a recent fabrication or other reason for the witness’s lack of credibility. See Van Gallon v. State, 50 So.2d 882 (Fla.1951); Allison v. State, 162 So.2d 922 (Fla. 1st DCA 1964). The trial court held that the state attorney had not impeached Squires on cross examination in light of the consistency of his testimony. The court allowed the defense to proffer the witness’s excluded testimony. The court then stated, “[h]av-ing made the proffer, the objection is still sustained.” We do not find that reversible error has been demonstrated under the circumstances.

The order of the trial court is affirmed. The stay of execution is vacated.

It is so ordered.

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


text:
    John MILLS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 63092.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Rehearing Denied Feb. 28, 1985.

      Roosevelt Randolph of Knowles & Randolph, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

John Mills, Jr., appeals from his conviction of and sentences for first-degree murder, kidnapping, armed burglary of a dwelling, first-degree arson, and grand theft. The trial court sentenced Mills to death for murder and to consecutive sentences of ninety-nine years for kidnapping, ninety-nine years for burglary, thirty years for arson, and five years for grand theft, with retention of jurisdiction over one-half of the kidnapping, burglary, and arson sentences. We have jurisdiction under article Y, section 3(b)(1) of the Florida Constitution and affirm Mills’ convictions and sentences.

The charges against Mills and co-defendant Michael Fredrick arose out of the disappearance of Les Lawhon and the burning of the Lawhon trailer in Wakulla County. A search for Lawhon proved futile. Subsequently, the police confronted Fredrick with a copy of his sales receipt from a precious metals dealer for a ring stolen from the Lawhon trailer. Fredrick eventually admitted his part in the criminal episode, implicated Mills, and led police to the skeletal remains of Les Lawhon in a deserted area of Wakulla County. A grand jury indicted Fredrick and Mills for the crimes set out above, plus a later severed charge for possession of a firearm by a convicted felon.

Fredrick pleaded guilty to second-degree murder and became the main witness against Mills at trial. Fredrick testified that he and Mills came upon the Lawhon trailer while driving in Mills’ truck looking for a place to burglarize. Mills gained entry to the trailer by asking Les Lawhon if he could use the telephone. Once Mills and Fredrick were inside Mills held a knife to Lawhon’s throat, took a shotgun from the trailer, and forced Lawhon outside and into Mills’ truck. Fredrick drove while Mills kept the shotgun aimed at Lawhon. Mills made several comments to Lawhon clearly implying that he would be killed when they reached their destination. They stopped in a deserted area where Mills tied Lawhon’s hands behind his back and hit him on the back of the head with a tire iron. As Fredrick and Mills were about to leave, Lawhon jumped up and ran away. Mills chased after Lawhon and killed him with a shotgun blast at close range. Fredrick and Mills then returned to the Law-hon trailer and removed most of the valuable personal property.

Mills testified in his own defense that Fredrick owed him money and had borrowed his truck on the day of the murder. Fredrick returned the truck full of property to repay the debt to Mills. Mills denied any involvement in the crimes. The defense suggested that Fredrick and another person had killed Lawhon.

The jury found Mills guilty as charged on all counts and recommended the death penalty. The trial court sentenced Mills to death after finding insufficient mitigating circumstances to outweigh the aggravating circumstances. The trial court also sentenced Mills for the other crimes as set out above.

Mills contends first that the trial court erred in denying his motion for change of venue because of extensive pretrial publicity and community prejudice against him. The trial court’s decision on a motion for change of venue will generally be upheld, absent the showing of a palpable abuse of discretion. Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). Mills argues that the trial court clearly abused its discretion under the circumstances of this case. He relies upon Manning v. State, 378 So.2d 274 (Fla.1979), where we ordered a new trial in a different county based upon the intensive pretrial publicity and strong community sentiment against Manning. As we stated in Manning:

A trial judge is bound to grant a motion for a change of venue when the evidence presented reflects that the community is so pervasively exposed to the circumstances of the incident that prejudice, bias, and preconceived opinions are the natural result.

Id. at 276.

In the case at bar, as in Manning, a black defendant stood accused of killing a white victim in a rural county, with the killing possibly receiving more publicity than if it had occurred in an urban area. The similarities, however, end there. The accused and the victim here were both from Wakulla County, while Manning was an outsider charged with killing two well-liked local sheriff’s deputies. All of Manning’s prospective jurors had ex parte knowledge of- evidence against him and would have been hard-pressed to stand against the strong community hostility toward him. On the other hand, the trial judge in this case heard conflicting evidence on whether Mills could receive a fair trial in Wakulla County. He denied the change of venue motion after a pretrial hearing, with reconsideration possible at the voir dire of potential jurors. A few potential jurors had extensive knowledge or expressed bias or preconceived opinions, but the trial judge conducted individual voir dire with three potential jurors at a time, striking for cause any juror who expressed partiality or who had detailed knowledge of the case. The court also allowed extra peremptory challenges.

Our review of the voir dire convinces us that the jury as selected was not biased or prejudiced against Mills. Straight; Manning. In fact most of the challenges for cause were based upon death penalty grounds rather than bias, prejudice, or preconceived opinions. The procedures used by the trial court effectively produced an impartial jury that gave Mills a fair trial. None of the incidents of bad feeling that Mills argues took place during the trial were of such magnitude as to render the impartiality of the jury suspect. Adoption of Mills’ broad interpretation of Manning would require almost every first-degree murder occurring in a rural county to be tried in another county. We decline to so restrict the discretion of the trial court over change of venue motions. We find no abuse of discretion in the trial court’s refusal to grant a change of venue in the circumstances of the present case.

On this same issue we find no error in the refusal to tax costs for a public opinion survey of the community feeling about this case in Wakulla County. The trial court was concerned with his inability to control the taking of the survey and the possibility that the survey itself would contaminate the potential jurors. These were valid grounds to deny the petition. In addition this Court has held such surveys inadmissible in change of venue proceedings on the grounds of hearsay and unreliability. Irvin v. State, 66 So.2d 288 (Fla.1953), cert. denied, 346 U.S. 927, 74 S.Ct. 316, 98 L.Ed. 419 (1954).

In his second point Mills contends that the trial court erred in failing to excuse a potential juror for cause. Mills claims prejudice because he had to use his last peremptory challenge to remove this person from the jury and later expressed his dissatisfaction with the jury selected. The competency of a juror challenged for cause presents a mixed question of law and fact to be determined by the trial court. Manifest error must be shown to overturn the trial court’s finding. Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). The trial court determined that the challenged juror here could “lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038, 1041 (Fla.), cert. denied, — U.S. -, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

We agree with the trial court’s determination of competency. During individual voir dire, this prospective juror stated that he could be impartial and denied expressing an opinion about Mills’ guilt during a conversation with Mills’ brother-in-law. Mills’ counsel then represented to the trial court his independent information that this man had said Mills was guilty. The trial court subsequently allowed Mills’ counsel an opportunity to present further evidence of the alleged statement, but counsel could only repeat his representations that the incident did occur. The trial court had to weigh the prospective juror’s denial, under oath, that he made the statement against representations that someone, who apparently refused to come forward and give testimony, heard him make the statement. The trial court did not abuse its discretion in refusing to strike this person for cause in view of the lack of support presented for the charges of partiality. The prospective juror’s distant relationship to the victim’s family and his acquaintance with Mills and his family did not negate his declarations of impartiality. Accordingly, we find no merit in this issue.

Mills claims in his third point that the trial court erred in denying his motion for a mistrial based upon the prosecutor’s cross-examination concerning his prior convictions. See § 90.610(1), Fla.Stat. (1981). We find no error in allowing the prosecutor to ask the specific impeachment questions, which are similar to the questions Mills asked Fredrick on cross-examination.

Mills next argues that the trial court erred in allowing the victim’s father to identify certain property that belonged to the victim. His reliance upon Welty v. State, 402 So.2d 1159 (Fla.1981), is misplaced. Welty addressed the propriety of allowing a relative to identify the victim. The concern expressed in Welty as to assuring the defendant a dispassionate trial has less force in this case because property identification by a relative has far less potential for creating sympathy or prejudice in the minds of the jurors. The fact that Mills stipulated to the ownership and value of the property does not render the testimony of the victim’s father irrelevant. The victim’s father was the only person who could identify specific items of property that belonged to the victim. His testimony corroborated the testimony of co-defendant Fredrick relating to that property. The record does not indicate that this testimony had the underlying purpose of gaining the sympathy of the jury or of prejudicing it against Mills. We find no error in allowing the victim’s father to identify the stolen property.

In his last challenge to the guilt phase of the trial Mills contends that the trial court erred in admitting a photograph of the skeletal remains of the victim. Mills acknowledges that even gruesome or inflammatory photographs may be admitted if they are relevant. See Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982); Straight v. State. He argues that the photograph was objectionable because it was irrelevant to any disputed issue in this case, was merely cumulative, and served to prejudice the jury. We disagree. The photograph in question was taken at the scene shortly after discovery of the victim’s body and helped establish how long the victim had been dead. The photograph also helped explain the lack of medical evidence that the victim had received a blow to the skull by Mills, as Fredrick had testified. We find the photograph relevant and that its admission did not constitute error.

Mills does not challenge the sufficiency of the evidence supporting his convictions. We have examined the record, however, and find sufficient evidence to support the convictions on all counts.

Mills also complains that the trial court erred in retaining jurisdiction over one-half of his kidnapping, burglary, and arson sentences. He relies on Williams v. State, 414 So.2d 509 (Fla.1982), in arguing that chapter 82-171, section 9, Laws of Florida, which increased the maximum retention period from one-third to one-half of the sentence for certain crimes, constitutes an illegal ex post facto law as applied because the crimes here occurred before the effective date of chapter 82-171. Mills, however, unlike Williams, stood subject to the existing retention of jurisdiction statute at the time the crimes were committed. § 947.16(3), Fla.Stat. (1981). Therefore, the legal consequences of retained jurisdiction had already attached under the existing statute. The quantum of punishment has not increased. The increase in the period of retention alone does not constitute an ex post facto law in this case because Mills was convicted and sentenced after the effective date of the statute increasing the retention period. We disapprove any conflicting holding in Reid v. State, 440 So.2d 651 (Fla. 2d DCA 1983).

The trial court found five aggravating circumstances applicable—committed by person under sentence of imprisonment, during a kidnapping, for pecuniary gain, in a cold, calculated, and premeditated manner, and heinous, atrocious, or cruel. Mills now challenges his death sentence on three grounds. He argues that the trial court erred in finding the aggravating circumstances that the capital felony was heinous, atrocious, or cruel and was committed in a cold, calculated, and premeditated manner. § 921.141(5)(h), (i), Fla.Stat. (1981). He also argues that the trial court improperly doubled those two aggravating circumstances. He argues finally that the trial court erred in not finding several applicable mitigating circumstances. We find no error in any of these points.

The evidence supports the trial court’s finding that the capital felony was especially heinous, atrocious, or cruel. The victim here must have suffered great mental anguish as he considered Mills’ comments and actions during the abduction, which the victim could only have interpreted to mean that he would be killed once they reached their destination. He begged for his life to no avail. He later attempted to escape his captors even after being bound and then struck on the head with a tire iron. The fact that the victim died almost immediately after an “execution” style shotgun blast to the face does not negate the mental anguish he suffered beforehand. Francois v. State, 407 So.2d 885 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982).

We also find the evidence established the aggravating circumstance that the capital felony “was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” § 921.141(5)(i). Not content to permit the bound and injured victim to escape into the woods, Mills took a shotgun and stalked the victim through the underbrush until he found and executed him. Mills’ actions demonstrate the kind of heightened premeditation necessary to qualify for the aggravating circumstance of committed in a cold, calculated, and premeditated manner. Card v. State, 453 So.2d 17 (Fla.), cert. denied, — U.S. -, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984); 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).

We also find no improper doubling of aggravating circumstances. Mills argues that the trial court relied upon the same facts to find the capital felony both heinous, atrocious, or cruel and cold, calculated, and premeditated. The trial court may consider both these aggravating circumstances together as long as the findings in support of the death sentence contain sufficient, distinct proof of each aggravating factor. Squires v. State, 450 So.2d 208 (Fla.), cert. denied, — U.S. -, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984); Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983). The findings of fact set out the proof necessary to establish the victim’s mental anguish for the aggravating circumstance of heinous, atrocious, or cruel, while also containing sufficient, distinct facts to demonstrate that Mills committed the murder in a cold, calculated, and premeditated manner. The trial court did not err in finding both aggravating circumstances.

In the penalty phase Mills presented evidence of his low intelligence and his potential for rehabilitation. The trial court, however, found nothing in mitigation. Mills now contends that the trial court erred in not finding the following mitigating circumstances: his lack of a significant prior criminal history, subsection 921.-141(6)(a); his age at the time of the crime, subsection 921.141(6)(g); and the nonstatu-tory mitigating circumstances of his low intelligence and his potential for rehabilitation. The trial court must determine whether a mitigating circumstance has been proven and how much weight it should carry in the sentencing decision. 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). We agree with the trial court’s refusal to find the mitigating circumstances asserted by Mills.

Mills admits his four prior convictions for burglary, but argues that because he was convicted of all four burglaries at the same time the trial court should have considered them as one conviction and should have found no significant criminal history as a mitigating circumstance. This Court has held that the commission of several burglaries, even without convictions for those crimes, will justify the rejection of the lack of a significant history of prior criminal activity as a mitigating circumstance. 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). The trial court did not err in refusing to find that Mills had no significant criminal history. Likewise, Mills’ age of twenty-six at the time of the crime was not a mitigating circumstance. Id.

Finally, the trial court did not err in failing to find any nonstatutory mitigating circumstances in the testimony of Dr. Akbar concerning Mills’ low intelligence and his potential for rehabilitation. The trial court need not consider low intelligence alone as a mitigating circumstance. Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). The trial court was also justified in rejecting the testimony on Mills’ potential for rehabilitation, because Mills had been on parole only a few months before he committed the murder and other crimes in this case. The trial court did not err in finding that the aggravating circumstances far outweighed any possible mitigating circumstances.

Mills has failed to demonstrate reversible error in his convictions or sentences. Accordingly, we affirm the convictions and sentences imposed on Mills.

It is so ordered.

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

      The legislature later reduced the maximum retained jurisdiction period to one-third of the sentence for certain crimes, but provided that ch. 82-171 would still apply to persons convicted during its effective period. § 947.16(3), (5), Fla.Stat.^1983).


author: McDonald, justice.

text:
    STATE of Florida, Petitioner, v. Boyce E. GLOSSON, Matthew A. Bronza, Robert C. Brooke, James P. Sheridan, Howard T. Smith, and Frances L. Gonzalez, Respondents.
    No. 64688.
    Supreme Court of Florida.
    Jan. 17, 1985.
    Rehearing Denied Feb. 28, 1985.

      Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for petitioner.
    Robert G. Duval, North Miami, for Boyce E. Glosson.
    Harvey Robbins, North Miami, for Robert L. Brooke, Matthew A. Brozyna and James P. Sheridan.
    Harvie S. DuVal of Greenfield & DuVal, North Miami, for Harold T. Smith and Frances Lorraine Gonzalez.
    Everett F. Jones, Tallahassee, amicus curiae, for the Florida Sheriffs Assn.
   McDonald, justice.

This case is before us to review State v. Glosson, 441 So.2d 1178 (Fla. 1st DCA 1983), which expressly construes a constitutional provision. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The issue on review is whether the district court properly affirmed the dismissal of criminal charges because the payment of a contingent fee to an informant conditioned on his cooperation and testimony in criminal prosecutions violated the respondents’ constitutional due process right. For the reasons expressed below, we approve the district court’s decision.

The state charged Boyce E. Glosson and the five other respondents with trafficking in over 100 but less than 2,000 pounds of cannabis and with conspiring to traffic in over 100 pounds of cannabis. These charges resulted from a “reverse-sting” operation run by the Levy County Sheriff’s Department through a paid informant, Nor-wood Lee Wilson. Wilson traveled to Dade County, where he agreed to sell several hundred pounds of cannabis to the respondents in Levy County. The respondents came to Levy County, took possession of the cannabis controlled by the sheriff, and were arrested soon afterward. As a result of the arrests, the sheriff seized several vehicles and over $80,000 in cash subject to civil forfeiture under sections 932.701-.704, Florida Statutes (1983).

The respondents filed motions to dismiss the information because of entrapment and prosecutorial misconduct. These motions relied primarily upon the agreement between the sheriff and Wilson whereby Wilson would receive ten percent of all civil forfeitures arising out of successful criminal investigations he completed in Levy County. The trial court held hearings on this issue and denied the motions to dismiss. The respondents filed further motions to dismiss which alleged that specific unethical conduct by the prosecutor had deprived them of their due process right. These charges included permitting the payment of a contingent fee to Wilson, a vital witness in a criminal prosecution, and failing to supervise Wilson properly after sending him out to make cases using government-controlled cannabis. A further hearing on these motions resulted in a stipulated set of facts for the trial court to dispose of the due process issue on a Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss rather than go to the expense of a trial and possibly have a directed judgment of acquittal on the same facts. The parties stipulated that each defendant had asserted an entrapment defense; that Wilson had an oral agreement with the sheriff, which agreement the state attorney’s office knew about and even supervised Wilson’s investigations; that Wilson would receive ten percent of all civil forfeiture proceedings resulting from the criminal investigations initiated and participated in by him; that the contingent fee would be paid out of civil forfeitures received by the sheriff; that Wilson must testify and cooperate in criminal prosecutions resulting from his investigations in order to collect the contingent fee; that this is one of those criminal prosecutions; and that Wilson must testify and cooperate in this case for there to be a successful prosecution. The trial court dismissed the information after finding that prosecutorial misconduct in this case had deprived the respondents of their right to due process.

The district court affirmed the dismissal, finding the constitutional due process issue to be a question of law for the trial court and holding that the contingent fee arrangement with Wilson violated the respondents’ due process right. The district court relied on Williamson v. United States, 311 F.2d 441 (5th Cir.1962), in holding the respondents had been denied due process because Wilson’s contingent arrangement seemed to manufacture, rather than detect, crime. The district court recognized that United States v. Joseph, 533 F.2d 282 (5th Cir.1976), cert. denied, 431 U.S. 905, 97 S.Ct. 1698, 52 L.Ed.2d 389 (1977), limited Williamson to those cases where contingent fees are paid for evidence against particular persons. Nevertheless, the district court found that the pervasive informant activity in this case came closer to the facts in Williamson than to the limited informant activity approved in Joseph.

The state contends that the district court erred in affirming the trial court’s order dismissing the information. The state argues that the respondents’ due process defense is both procedurally and substantively inapplicable in this case. We disagree with both arguments.

Two reasons require us to reject the state’s argument that the due process defense in this case presents a credibility issue for the jury rather than a question of law which the trial court may decide on a rule 3.190(c)(4) motion to dismiss. The due process defense based upon governmental misconduct is an objective question of law for the trial court, as opposed to the subjective predisposition question submitted to the jury in the usual entrapment defense. United States v. Graves, 556 F.2d 1319 (5th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978); United States v. Quinn, 543 F.2d 640 (8th Cir.1976). The trial court had sufficient undisputed facts in the stipulation to determine as a matter of law that Wilson’s contingent fee arrangement with the sheriff violated the respondents’ due process right, compelling the dismissal of the information. The state’s argument must also fail because the prosecutor agreed to the pretrial disposition of the due process issue to avoid a possible adverse ruling during a lengthy trial. The state may not now claim procedural error in a ruling it invited the trial court to make.

The state further contends that the district court should not have affirmed the application of the due process defense in this case, which did not involve acts or threats of violence by government agents. We disagree and hold that the agreement in this case to pay an informant a contingent fee conditioned on his cooperation and testimony in criminal prosecutions violates constitutional due process.

The United States Supreme Court first recognized the entrapment defense, with its emphasis on the predisposition of the defendant to commit a crime, in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). In dicta from United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Court appeared to recognize the due process defense, regardless of the defendant’s predisposition, where “the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-32, 93 S.Ct. at 1642-43. Only three justices agreed with the later plurality opinion in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), holding that the due process defense is unavailable to a predisposed defendant.

We cannot agree with the state’s position that Hampton forecloses the due process defense from admittedly predisposed defendants. However, it appears that since Hampton the due process defense has been raised successfully in only one federal circuit court. United States v. Twigg, 588 F.2d 373 (3d Cir.1978) (due process violated where government supplied equipment and location for illegal drug factory while paid informant supplied required expertise). Indeed, a recent federal circuit court stated that nothing short of “the infliction of pain or physical or psychological coercion” will establish the due process defense. United States v. Kelly, 707 F.2d 1460, 1477 (D.C.Cir.), cert. denied, — U.S. -, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983).

The due process defense appears to fare better when used by predisposed defendants in state court proceedings. Courts in two states have recognized and relied upon the due process defense to overturn criminal convictions. State v. Hohensee, 650 S.W.2d 268 (Mo.Ct.App.1982) (conviction based on burglary sponsored and operated by the police violated due process right of predisposed defendant who acted as lookout during burglary); People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978) (police misconduct and trickery used to secure drug sales by predisposed defendant within state violated defendant’s due process right, requiring dismissal of case).

We reject the narrow application of the due process defense found in the federal cases. Based upon the due process provision of article I, section 9 of the Florida Constitution, we agree with Hohensee and Isaacson that governmental misconduct which violates the constitutional due process right of a defendant, regardless of that defendant’s predisposition, requires the dismissal of criminal charges.

Our examination of this case convinces us that the contingent fee agreement with the informant and vital state witness, Wilson, violated the respondents’ due process right under our state constitution. According to the stipulated facts, the state attorney’s office knew about Wilson’s contingent fee agreement and supervised his criminal investigations. Wilson had to testify and cooperate in criminal prosecutions in order to receive his contingent fee from the connected civil forfeitures, and criminal convictions could not be obtained in this case without his testimony. We can imagine few situations with more potential for abuse of a defendant’s due process right. The informant here had an enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee. The due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions.

Accordingly, we hold that a trial court may properly dismiss criminal charges for constitutional due process violations in cases where an informant stands to gain a contingent fee conditioned on cooperation and testimony in the criminal prosecution when that testimony is critical to a successful prosecution. We approve the district court decision under review.

It is so ordered.

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

ALDERMAN, J., dissents.


text:
    James David RAULERSON, Appellant, v. STATE of Florida, Appellee.
    No. 66419.
    Supreme Court of Florida.
    Jan. 21, 1985.

      Stephen B. Bright and Palmer Singleton, Atlanta, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

We have before us an appeal from the denial of appellant's third motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

In August of 1975, appellant was convicted of first-degree murder and sentenced to death. The facts underlying appellant’s conviction are set out in Raulerson v. State, 358 So.2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978), where we affirmed the conviction and sentence to death. Appellant then filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. That court found that appellant had been denied the opportunity to rebut the contents of his presentence report in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and ordered a new sentencing hearing. Raulerson v. Wainwright, 508 F.Supp. 381, 383-85 (M.D.Fla.1980). Following a second sentencing hearing, appellant was again sentenced to death. This Court consolidated the appeals from the denial of post-conviction relief and reimposition of the death penalty and affirmed both judgments. Raulerson v. State, 420 So.2d 567 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 3572, 77 L.Ed.2d 1412 (1983).

On August 22, 1983, appellant filed a second motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, but the trial court denied the motion. This Court again affirmed. Raulerson v. State, 437 So.2d 1105 (Fla.1983).

On September 2, 1983, appellant filed a second habeas corpus petition in the United States District Court for the Middle District of Florida. Ultimately, the district court denied the writ and the Eleventh Circuit Court of Appeals affirmed. Rau-lerson v. Wainwright, 732 F.2d 803 (11th Cir.), cert. denied, — U.S.-, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984).

Appellant filed a third motion for post-conviction relief on January 17, 1985. The trial court denied the motion, without an evidentiary hearing; on January 18, 1985.

Appellant’s 3.850 motion raises six claims for relief: 1) pretrial publicity and community bias; 2) concealment of material facts on voir dire; 3) breaches of sequestration order; 4) the unguided use of unadjudieated crimes evidence; 5) other crimes evidence was obtained and used in an unconstitutional manner; 6) ineffective assistance of counsel. All but appellant’s sixth contention were or could have been raised on direct appeal and thus are precluded from our consideration. Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla.1980); Adams v. State, 380 So.2d 423-24 (Fla.1980). Moreover, as to appellant’s second contention, we agree with the findings of the trial court in its order denying appellant’s motion for post-conviction relief:

Furthermore, the Defendant has had the benefit of two prior post conviction proceedings. In neither proceeding was this ground raised. There is no factual basis set forth in the motion that this ground was not available to the Defendant at these three prior stages of this case. The Defendant has failed to show that he is entitled to relief on this ground. Meeks v. State, 382 So.2d 673 (Fla.1980). Even assuming that this ground is properly before the Court, the Defendant is not entitled to relief. Questions of whether prospective jurors had heard about the case is not, standing alone, sufficiently material. The real issue is whether a juror has knowledge about the case which would influence the juror in returning a verdict. The fact that juror Weston (sic) and juror Allen may have had knowledge about the case, standing alone, is an insufficient basis to warrant this Court to grant the relief sought by the Defendant.

Appellant’s sixth and final contention in support of his motion is that of ineffective assistance of counsel. The issue has been thoroughly reviewed by this Court in two prior post-conviction proceedings, Raulerson v. State, 420 So.2d 567 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 3572, 77 L.Ed.2d 1412 (1983); Raulerson v. State, 437 So.2d 1105 (Fla.1983), and has been rejected by all other reviewing courts as well. We adhere to our prior judgments and find appellant’s claim to be without merit.

Accordingly, the trial court’s order denying appellant’s third 3.850 motion is hereby affirmed.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Charles E. BARTLETT, Respondent.
    No. 63294.
    Supreme Court of Florida.
    Jan. 24, 1985.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Charles E. Bartlett, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of a referee. Pursuant to article XI, rule 11.06(9)(b) of the Integration Rule, the referee’s report and record were duly filed with this Court. No petition for review pursuant to article XI, rule 11.09(1) of the Integration Rule has been filed.

Having considered the pleadings and evidence, the referee found as follows:

1. The Respondent maintained an account at the Barnett Bank of Orange Park, hereinafter referred to as “Attorney Account.”
2. He maintained an account in Southeast Bank of Orange Park hereinafter referred to as “Client Account.”
3. Both accounts were trust accounts.
4. The Respondent deposited on August 21, 1981, in the “Attorney Account” monies belonging to one, Carver Cook. Also, in this account Respondent deposited personal funds. Monies were paid out of said account on behalf of Mr. Cook, but a ledger card was not maintained reflecting monies entrusted by Mr. Cook, nor disbursed on his behalf. There was a mixing of personal and client’s funds.
5. On December 11, 1981, a client of Respondent, Richard McPherson, deposited with him $375.00 to defray the cost [of] surveying services of Joseph G. Knapp performed on behalf of McPherson.
6. On March 30, 1982, Respondent drew on his client account a check payable to Mr. Knapp in partial payment of the bill for said services.
7. On last said date Respondent’s client account had a balance of $102.11. Hence, the check to surveyor Knapp was not paid until April 12, 1982, and then, against funds not related to McPherson.
8. Respondent failed to prepare or keep a ledger card reflecting receipt or payment of this client’s money. In this account personal and client’s monies were co-mingled.
9. On November 4, 1981 Respondent’s client account and attorney account contained $1,550.70 less than his trust obligation to a client.
10. On February 16, 1982 the Respondent issued two checks drawn on the client account for a total sum of $97.00 resulting in an overdraft of $199.09. Previously, the client account had a minus balance from November 20, 1981 to January 22, 1982.
11.From June 1981 to August of 1982 Respondent did not prepare and keep ledger cards or equivalent records reflecting deposits and disbursement of money entrusted to him by clients, and for June 1981, did not keep cancelled checks from his attorney account. Further, he failed to adequately identify in both accounts deposits and disbursements, and did not maintain quarterly reconciliations of either.

The referee recommends that Bartlett be found guilty of violating rule 11.02(4) of the Integration Rule and disciplinary rule 9-102(A) and (B) of the Code of Professional Responsibility. He further recommends that Bartlett be suspended from the practice of law for a period of thirty days and that he be required to attend a complete seminar on trust accounting with a certificate of compliance therewith being filed with the clerk of the Supreme Court of Florida. Finally, the referee recommends that failure without good cause to attend such seminar within twelve months should re-open the judgment.

Having carefully reviewed the record, we approve the findings and recommendations of the referee. Accordingly, Charles E. Bartlett is hereby suspended from the practice of law for a period of thirty days effective February 25, 1985, thereby giving him thirty days to close out his practice and take the necessary steps to protect his clients. Bartlett is to accept no new clients from the date of this opinion. He is further directed to attend a complete seminar on trust accounting with a certificate of compliance therewith to be filed with the clerk of this Court.

Judgment for costs in the amount of $1,751.88 is hereby entered against Charles E. Bartlett, for which let execution issue.

It is so ordered.

ADKINS, A.C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Emmett A. MORAN, Respondent.
    No. 63759.
    Supreme Court of Florida.
    Jan. 24, 1985.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Frank J. McKeown of MeKeown & Gam-ot, Palm Beach, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of The Florida Bar and the report of the referee recommending that respondent, Emmett A. Moran, he found guilty of professional misconduct and suspended for a period of four months with proof of rehabilitation required. The referee further recommends that respondent obtain substance abuse counseling. The Florida Bar asks that we adopt the referee’s findings and recommendations. Respondent argues that there is no evidence to support the referee’s finding that respondent “was under extreme mental and physical pressures due to health difficulties and self induced indulgences that prohibited him from exercising sound judgment” and, consequently, no basis for the recommendation that respondent obtain substance abuse counseling.

The referee recommended in pertinent part as follows:

I recommend that the Respondent be found Guilty and specifically that he be found Guilty of violating the following Integration Rules of The Florida Bar and/or Disciplinary Rules of the Code of Professional Responsibility, to-wit:
Florida Bar Integration Rule Article XI, Rule 11.02(3)(a)
Code of Professional Responsibility Disciplinary Rule, 1-102(A)(5), for conduct prejudicial to the administration of justice and
Disciplinary Rule 7-102(A)(5) for knowingly making a false statement of law or fact to the Court.
4. I recommend that the Respondent be suspended for a period of four (4) months and thereafter until he shall prove his rehabilitation as provided in Rule 11.10(4). I further recommend that the Respondent obtain substance abuse counseling.

Examination of the record shows that there is only one reference to substance abuse by respondent. During cross examination of Judge Salfi on respondent’s misrepresentation to his court, the following exchange occurred:

Q And the only issue, then, is the fact that in Mr. Moran’s Motion For Hearing, he had either misstated or misrepresented the fact that he had previously, some 10 to almost 11 years before, had represented this client. Is that correct?
A Okay, that is — that’s one of the things, and that is correct.
There was another thing, I think, with regard to his demeanor at the time, and the odor of alcohol on his breath, on that particular hearing that caused me some concern.
Q That’s not before us today, so I would respectfully request you stay within the bounds of the hearing today. (Emphasis supplied.)

On redirect, there was no attempt to further explore the underlined testimony nor was there any charge or evidence before the referee that respondent had abused alcohol or other substances. We reject the Bar’s argument that we should defer to the referee, as the finder of fact, because the referee made the disputed finding based on direct observation of respondent’s demean- or and testimony. On the record before us we are constrained to agree with the respondent that there is simply an absence of evidence to support the referee’s recommendation on this issue. In the absence of any evidence or findings that would support the recommendations, we decline to require that respondent obtain substance abuse counseling.

We approve the referee’s recommendation that respondent be found guilty of violating Florida Integration Rule, article XI, Rule 11.02(3)(a) (commission of an act contrary to honesty); Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(5) (conduct prejudicial to the administration of justice), and 7-102(A)(5) (knowingly making a false statement of law or fact to a court). We also approve the portion of the referee’s recommendation that respondent be suspended for a period of four months with proof of rehabilitation required as provided in Rule 11.10(4). The suspension will take effect on February 25, 1985.

Judgment for costs in the amount of $842.42 is hereby entered against respondent, for which let execution issue.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Michael E. SWEETING, Respondent.
    No. 63889.
    Supreme Court of Florida.
    Jan. 24, 1985.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Stephen Rushing, Bar Counsel, Tampa, for complainant.
    Gerald C. Surfus, Sarasota, for respondent.
   PER CURIAM.

Upon a complaint by The Florida Bar this Court appointed a referee to conduct a hearing regarding Sweeting’s alleged misconduct. Sweeting tendered a conditional guilty plea for consent judgment, acknowledging his violation of Disciplinary Rules 1-102(A)(3), (4), (5) and (6), and 7-102(A)(7) and (8) of the Code of Professional Responsibility and Rule 11.02(3)(a) of the Integration Rule of the Florida Bar. The referee recommended that Sweeting be found guilty in accordance with his conditional plea and that he be given a public reprimand, be suspended from the practice of law for a period of one year and appear before the Board of Governors.

Neither side contests the referee’s report which we hereby adopt. Publication of this opinion in Southern Reporter and appearance before the Board of Governors will serve as the public reprimand, and Michael E. Sweeting is hereby suspended from the practice of law for a period of one year effective February 25, 1985, thereby giving Respondent thirty days to close out his practice and take the necessary steps to protect his clients. Respondent is to accept no new clients from the date of this opinion.

Judgment for costs in the amount of $772.09 is hereby entered against respondent, for which let execution issue.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Robert M. SEGAL, Respondent.
    Nos. 64338, 64526.
    Supreme Court of Florida.
    Jan. 24, 1985.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    No appearance for respondent.
   PER CURIAM.

These disciplinary proceedings by The Florida Bar against Robert M. Segal, a member of The Florida Bar, are presently before us on complaints of The Florida Bar and report of referee. The referee’s report and record have been filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.06(9)(b). No petition for review has been filed.

Having considered the pleadings and evidence, the referee found as follows:

Case No. 64,338

As to Count I

I recommend that the respondent be found guilty and specifically that he be found guilty of violating the following Integration Rules of The Florida Bar and/or Disciplinary Rules of the Code of Professional Responsibility, to wit:
a. DR 1-102(A)(5) for engaging in conduct prejudicial to the administration of justice;
b. DR 1-102(A)(6) for engaging in conduct which adversely reflects on respondent’s fitness to practice law;
c. DR 6-101(A)(3) for neglecting a legal matter entrusted to him by a client; and
d. DR 7-101(A)(2) by failing to carry out a contract of employment entered into with a client for professional services.

As to Count II

I recommend that respondent be found guilty and specifically that he be found guilty of violating the following Integration Rules of The Florida Bar and/or Disciplinary Rules of the Code of Professional Responsibility, to wit:
a. DR 1-102(A)(5) for conduct prejudicial to the administration of justice; and
b. DR 1-102(A)(6) for conduct which adversely reflects on respondent’s fitness to practice law.

As to Count III

I recommend that the respondent be found guilty and specifically that he be found guilty of violating the following Integration Rules of The Florida Bar and/or Disciplinary Rules of the Code of Professional Responsibility, to wit:
a. DR 1-102(A)(4) for conduct involving dishonesty, fraud, deceit and misrepresentation;
b. DR 1-102(A)(6) for conduct which adversely reflects on respondent’s fitness to practice law by falsely representing to his client that a suit had been filed on his behalf;
c. DR 6-101(A)(3) for neglecting a legal matter entrusted to respondent by a client;
d. DR 7-101(A)(2) for failing to carry out a contract of employment entered into with a client; and
e. DR 9-102(B)(4) for failing to promptly pay to his client as requested by him funds in the possession of the respondent which the client is entitled to receive.

Case No. 64,526

As to Count I

I recommend that the respondent be found guilty and specifically that he be found guilty of violating the following Integration Rules of The Florida Bar and/or Disciplinary Rules of the Code of Professional Responsibility, to wit:
a. DR 6-101(A)(3) by neglecting a legal matter entrusted to him by a client.

The referee considered the nature and number of the offenses charged in these consolidated cases and respondent’s previous disciplinary convictions and recommended that he be disbarred from the practice of law in the State of Florida, that he be ordered to reimburse to Signs, Inc. of Florida the $2,500 retainer which he accepted to represent the corporation, and that he pay all costs of these disciplinary proceedings.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Robert M. Se-gal, is hereby disbarred from the practice of law in the State of Florida effective immediately.

Judgment for costs in the amount of $879.19 is hereby entered against respondent, for which let execution issue.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.

       Respondent is currently under suspension from the practice of law by order of this Court. The Fla. Bar v. Segal, 441 So.2d 624 (Fla.1983).


author: EHRLICH, Justice.

text:
    GULF COAST ELECTRIC COOPERATIVE, INC., Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION and Gulf Power Company, Appellees.
    No. 64983.
    Supreme Court of Florida.
    Jan. 24, 1985.

      Clinton E. Foster of the Law Offices of Clinton E. Foster, P.A., Panama City, for appellant.
    William S. Bilenky, General Counsel and Robert D. Vandiver, Associate General Counsel, Tallahassee, for the Florida Public Service Commission.
    G. Edison Holland, Jr. and Ralph A. Peterson of Beggs & Lane, Pensacola, for Gulf Power Company.
   EHRLICH, Justice.

Gulf Coast Electric Cooperative (Gulf Coast) challenges a final order of the Florida Public Service Commission awarding a service area to Gulf Power Co. (Gulf Power). P.S.C. Order 12,858 (Jan. 10, 1984). We have jurisdiction pursuant to article V, section 3(b)(2), Florida Constitution.

Gulf Coast and Gulf Power dispute the right to serve a new subdivision north of Panama City. Gulf Coast, at the request of the developer and the first resident to move in, installed lines to serve the first construction phase of the area without consulting with Gulf Power, even though Gulf Power’s existing lines were much closer to the development. Gulf Power responded by providing service to the second resident to move into the subdivision, despite Gulf Coast’s efforts to forestall this by extending service to the same customer. At this point, Gulf Power filed a petition with the PSC to resolve the territorial dispute.

Prior to the public hearing on the dispute, the PSC asked both sides to prepare evidence of the “estimated cost” of extending service into the disputed area. At the hearing, testimony by Gulf Coast’s witness showed an estimated cost roughly half again as much as Gulf Power’s. The evidence at the hearing also showed that Gulf Coast’s existing service lines were about twice as far, “as the crow flies,” from the development as Gulf Power’s, and that Gulf Coast had to use an even longer, less direct route to the development to avoid possible conflicts with future construction. The PSC awarded the right to serve the development to Gulf Power, primarily because of Gulf Power’s proximity and lower estimated cost. Gulf Coast appealed to this Court.

Gulf Coast challenges the order on two grounds: first, that the consideration of estimated cost was procedurally improper, and, second, that the finding that Gulf Coast’s estimated cost was lower is not supported by the record. We reject both arguments and affirm the PSC.

Section 366.04(2)(e), Florida Statutes (1983), enumerates the factors the Commission should use in evaluating a territorial dispute between a rural electric cooperative such as Gulf Coast and other electric utilities. Estimated cost is not included in the list, but the statute expressly states that the enumerated factors are not exclusive. Gulf Coast argues that if estimated cost is to be considered, the Commission erred either because it failed to promulgate a rule establishing the policy through the rule-making procedures of the Administrative Procedure Act (APA), chapter 120, Florida Statutes, or because it did not adequately explain the nonrule policy in its order.

“There are quantitative limits to the detail of policy that can effectively be promulgated as rules, or assimilated; and even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.” McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977) (footnote deleted, emphasis in original), cert. denied, 368 So.2d 1370 (1979). Whether the factor of estimated cost falls below the threshold of those policies which must be promulgated, or whether the factor is “incipient policy” still undergoing administrative honing, we do not decide. We only conclude that estimated cost remains a fluid concept at this time and need not be reduced to a promulgated rule. Whether estimated cost may or may not ever be reducible to a promulgated rule is not before us at this time.

The APA does not chill the open development of policy by forbidding all utterance of [policy] except within the strict rulemaking process of Section 120.54_
It would immediately stifle [agency] policymaking and ultimately destroy the APA to label [every statement of policy in a final order] a “rule” concerning which Section 120.54 requires notice of its intended utterance, an estimate of its economic impact, publication in Florida Administrative Weekly, public debate, review by the Administrative Procedures Committee and final publication in the Florida Administrative Code.

McDonald, 346 So.2d at 580-81. The concept of “estimated cost” is certainly less clearly delineated as policy than the administrative decision to disallow charitable contributions as utility business expenses which we found need not be promulgated as a rule in Southern Bell Telephone and Telegraph Co. v. Florida Public Service Commission, 443 So.2d 92 (Fla.1983).

Gulf Coast argues that even if estimated cost need not be reduced to a rule, the components comprising estimated cost are not ascertainable from prior agency decisions, and the PSC failed to specify those components when it requested estimated cost in this case. However, we find no error on this point. Estimated cost was raised as an issue before the hearing, and Gulf Coast had every opportunity to explore the issue as the proceeding progressed. Although we will not second guess the Commission, we perceive the question of estimated cost, at least at this stage of policy development, to be one which may be so dependent on the individual facts of each case that the only way it may be considered is on a case-by-case basis. We also note that there is no indication in the record that Gulf Coast sought “a more definite and detailed statement” of what the Commission expected in terms of estimated cost, which was Gulf Coast’s right under section 120.57(l)(b)2.d.

Gulf Coast’s second challenge to the order in essence asks this Court to recalculate the estimated costs. The Cooperative claims that the estimated costs are approximately the same if two factors omitted from Gulf Power’s estimate are added in: the amount expended by Gulf Power to provide service to its first customer in the subdivision, and “overhead.” We find that the PSC did not abuse its discretion when it failed to include the cost to serve Gulf Power’s first customer. Although the final order does not so state, apparently the Commission intended to determine, as estimated cost, the cost to provide service to the subdivision as if neither party had as yet undertaken to provide service. In other words, the costs expended in the territorial battle were inappropriate factors, since consideration of those factors could tend to encourage such disputes.

The instant case demonstrates the problem. Gulf Coast installed lines along the very route Gulf Power would have used to bring power into the development. Unable to get an easement to use the same route, Gulf Power was forced to spend $13,000-$14,000 to serve its first customer across other property not a part of the development. Gulf Coast now objects to noninclusion of this cost in the estimated cost figures, while its own costs to run 4,000 feet of line from its nearest existing line to the edge of the development were included in its estimated cost. However, Gulf Coast would have had to install that 4,000 feet of line regardless, while Gulf Power’s expense was necessitated by Gulf Coast’s preemptive installation. The estimated cost attributed to Gulf Power included what it would have cost had Gulf Power had access to the easement preempted by Gulf Coast, and excluded the amount actually expended.

Basing estimated cost on the ideal situation, rather than the aftermath of a territorial dispute, is within the range of discretion open to the Commission. The Commission urged in oral argument that it desires to discourage territorial disputes, which foster the kind of unnecessary expense seen here, and the cost analysis employed in this case, by refusing to recognize any advantage or disadvantage resulting from the “line war,” appropriately addresses the problem.

Because we find Gulf Power’s “first customer cost” appropriately excluded, there is no need to address the alleged discrepancy regarding “overhead.” Gulf Power’s estimated cost is significantly less than Gulf Coast’s even if “overhead” is included in Gulf Power’s costs.

Gulf Coast also disputes the Commission’s observation that “we will not condone the utilities’ competitive conduct in racing to serve the customers.” More particularly, Gulf Coast objects to this characterization of its actions as an inference of wrongdoing. Whether the conduct was right or wrong, the record clearly demonstrates a competitive race. Gulf Coast did indeed act in a manner to preempt Gulf Power from serving the area. Although Gulf Coast was not obligated to consult with Gulf Power before providing service, it knew Gulf Power lines were half as far as its own yet it proceeded to install line using a circuitous route to reach one customer which, “coincidentally,” wired a substantial area of the rest of the development. Once Gulf Coast became aware of Gulf Power’s intentions to serve a customer, it hurriedly extended its own lines to the same customer, on the apparent pretense of serving an adjacent vacant lot. The parties accuse each other of thwarting negotiations to settle the dispute after the initial volleys. Gulf Power’s efforts to serve its first customer were also costly. The Commission’s decision gives neither Gulf Coast an advantage for being there first, nor Gulf Power an advantage for serving a customer regardless of expense. Whether this constitutes wrongful behavior by either party is beside the point; it is within the discretion of the Commission to refuse to condone it. In oral argument, counsel for Gulf Coast said it could not have avoided the dispute by negotiating with Gulf Power before any line was installed, because “negotiating with Gulf Power Co. is like negotiating with a circular saw ... and I suspect that they feel the same way.” Perhaps utilities will learn from this case that a circular saw may be of less fearsome prospect than the PSC.

Accordingly, the order of the Commission is affirmed.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Albert G. SIEGEL, Respondent.
    No. 65020.
    Supreme Court of Florida.
    Jan. 24, 1985.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee^ and Paul A. Gross, Bar Counsel, Miami, for complainant.
    No appearance for respondent.
   PER CURIAM.

This attorney discipline proceeding is before us on the complaint of The Florida Bar and the report of the referee. We have jurisdiction. Art. V, § 15, Fla. Const.

The Bar filed a complaint against the respondent alleging three violations of Disciplinary Rule 6-101(A)(3), one violation of Disciplinary Rule 1-102(A)(4), and one violation of Disciplinary Rule 1-102(A)(6) of The Florida Bar Code of Professional Responsibility. The referee recommended that the respondent be found guilty of all violations alleged in the complaint and suspended from the practice of law for a period of three years.

We adopt the uncontested recommendations of the referee. We hereby suspend the respondent from the practice of law for three years and, in accordance with the referee’s recommendation, condition the respondent’s readmission upon proof of rehabilitation which must include reimbursement of the respondent’s former clients for losses incurred due to the respondent’s negligence or dishonesty. The suspension shall be effective thirty days from the filing of this opinion.

Judgment for costs in the amount of $563.09 is hereby entered against respondent, for which let execution issue.

It is so ordered.

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