text:
    Michael Anthony JONES v. STATE.
    6 Div. 995.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.

      Charles E. Caldwell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., P. David Bjurberg, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The appellant, Michael Anthony Jones, was indicted for and convicted of first degree robbery, in violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to twelve years’ imprisonment in the State penitentiary.

At a suppression hearing held in a previous mistrial of this case, and herein made a part of this record, the following testimony was given.

Carney Anderson, manager of a McDonald’s fast-food restaurant at 1337 Bessemer Road in Jefferson County, Alabama, testified that, on August 1,1981, at approximately 3:00 a.m., two masked men approached him and his assistant manager as they were closing the restaurant. Mr. Anderson stated that these two black males, one “short and stocky” and the other “tall and skinny,” forced him back into the restaurant. He testified that the “short and stocky” man held a gun. Mr. Anderson observed both men wearing surgical gloves on their hands and that they also wore masks of ladies’ hose pulled “all the way over their faces.” Mr. Anderson stated that the masks slightly distorted their facial features.

When the men came inside the restaurant, Anderson and his assistant were taken to the rear of the store. The stocky robber said to Anderson, “. .. to give [them] the white man’s money. That’s all we want.” Anderson testified that the tall robber never spoke a word. Anderson opened the store safe from which the two black males took some $2,000.

Anderson testified that while the robbers were in the store, he “was looking at them when they were robbing us because I was scared they may do something.” After the robbers left, Anderson called the police.

On August 13, 1981, approximately two weeks after the robbery, Lawrence Korne-gay of the Birmingham Police Department testified that he received a call around 1:00 a.m. to go to a McDonald’s Restaurant on Avenue E in Ensley to investigate a possible prowler. Officer Kornegay stated that a black male wearing blue jeans and no shirt had been seen behind the fast food restaurant. As he and his partner drove through the immediate area looking for the black male, Kornegay saw a van parked about a half block from the McDonald’s Restaurant. Officer Kornegay testified that after approaching the van, he observed a black male “duck down inside the front part of the van.” Kornegay testified that he went to the rear of the van and shined a flashlight in the rear window. There he observed inside the van three people, two males and one female, who appeared to be concealing something beneath a mat. Kor-negay then moved to the front of the van where he observed through the car window a syringe and some pills on the console. Kornegay’s partner advised the occupants of the van to come out of the van. The three occupants, one of which was appellant, were thereupon arrested.

The van was searched at the scene. Recovered during the search were two loaded pistols, two pairs of gloves, two toboggans and two ladies’ stockings whose ends were tied.

The following day on August 14, 1981, Mr. Anderson viewed at the Birmingham Police Station a lineup in reference to the August 1, 1981, robbery at the McDonald’s on Bessemer Road where he worked. Included in the lineup were appellant and his male companion both of whom had been arrested the previous day. After viewing the lineup, Mr. Anderson identified both appellant and his companion as the two who had robbed him on August 1, 1981.

Sergeant Harry Faucett of the Birmingham Police Department testified that he conducted the lineup on August 14, 1981. He stated that the lineup consisted of six black males who were all similarly dressed in white coveralls. The heights of the men ranged from five feet seven inches to five feet ten inches and their weights from 145 to 160 pounds. Their ages ranged from twenty-one to thirty-one. No one in the lineup wore anything over his face. Sergeant Faucett stated that each man in the lineup was told to say, “I’m not going to hurt you. All I want is the white man’s money.” Sergeant Faucett also stated that no suggestive statements were made to Mr. Anderson prior to the lineup.

The appellant contends that the pretrial identification procedure was unduly suggestive and unreliable and, therefore, inadmissible at trial. The appellant alleges that the lineup was unnecessarily suggestive because he was placed in a line with shorter people and was made to speak during the lineup.

The test for determining the reliability of identification testimony following a pretrial identification procedure is whether the procedure was “unnecessarily suggestive and conducive to irreparable mistaken identification.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).

In Raines v. State, 428 So.2d 206 (Ala.Cr.App.1983), this court, citing Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1978), stated:

“Whether an out-of-court identification procedure has violated due process depends upon the ‘totality of the circumstances.’ Stovall, [388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1968); Coleman, [399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387] supra; Biggers, [409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401] supra. This totality of the circumstances test is the standard in deciding whether an identification procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Caver v. Alabama, 537 F.2d 1333 (5th Cir.1976).
“In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson [432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140] supra. This determination involves the application of a two-pronged test.
“[T]he required inquiry is two-pronged. The first question is whether the initial identification procedure was ‘unnecessarily’ [Stovall] or ‘impermissibly’ [Simmons, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247] suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been ‘unnecessarily’ or ‘impermis-sibly’ suggestive was so ‘conducive to irreparable mistaken identification’ [Stovall ] or had such a tendency ‘to give rise to a very substantial likelihood of irreparable misidentification’ [Simmons] that allowing the witness to make an in-court identification would be a denial of due process. United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.1970).”

Therefore, the first prong in determining whether a pretrial identification can be admitted is whether the lineup is impermissi-bly suggestive. If it is not, the inquiry ends. United States v. Sonderup, 639 F.2d 294 (5th Cir.1981); Phillips v. State, 409 So.2d 918 (Ala.Cr.App.1981).

The record does not support appellant’s contention that the lineup was unduly suggestive. Sergeant Faucett testified that all six participants in the lineup were black males of the same approximate height, weight and age. They were all dressed in coveralls and were all asked to speak the same words.

As stated in Lewis v. State, 399 So.2d 907 (Ala.Cr.App.1981):

“The fact, in and of itself, that there was some slight discrepancy in physical appearance among the participants of a lineup does not taint that identification procedure or render it suggestive as a matter of law. Tate v. State, 346 So.2d 515 (Ala.Cr.App.1977).
“ ‘(T)he disparate physical appearances of the lineup participants is not alone sufficient to warrant a finding of suggestiveness. Caver v. Alabama, supra (537 F.2d 1333 (5 Cir.1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1183, 51 L.Ed.2d 587 (1977); United States v. Reid, 517 F.2d 953, 965-66, n. 15 (2 Cir.1975); United States ex rel. Pella v. Reid, 527 F.2d 380, 384 (2 Cir.1975); United States v. Jackson, 166 U.S.App.D.C. 166, 172, 509 F.2d 499, 505 (1974). ‘Police stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required. United States v. Lewis, 547 F.2d 1030, 1035 (8 Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977).’
“Swicegood v. Alabama, 577 F.2d 1322, 1327 (5 Cir.1978).”

The appellant’s motion to suppress Mr. Anderson’s pretrial identification was properly denied.

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HUBERT TAYLOR, Judge.

license: Public Domain

text:
    Jovan NIKOLIC v. STATE.
    3 Div. 493.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    J. Paul Lowery, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   ON REHEARING

HUBERT TAYLOR, Judge.

This court originally affirmed defendant’s conviction of forgery in the third degree. We held that a traffic ticket is a written instrument with an apparent legal efficacy capable of supporting a conviction of forgery, and that there was sufficient evidence for the trial court to conclude that appellant falsified his signature to conceal his true identity.

In his application for rehearing, appellant contends that the traffic citation in question was void on its face and therefore not capable of supporting a forgery conviction. We agree.

It is well settled that an instrument void on its face cannot be the subject of forgery. In the case of Aders v. State, 21 Ala.App. 41, 104 So. 882 (1925), a check was executed on a Sunday, which made it void under § 6821, Code of Alabama 1923. There, the court said, “A writing, void on its face because of the want of legal requisites to its validity, is not the subject of an indictment for forgery . ... ” 104 So. at 883. Additionally, it is stated in 37 C.J.S. Forgery § 18(b) that, “Unless otherwise provided by statute, forgery cannot be predicated on an instrument void on its face because . .. lacking a required signature ... or because it has not been proved under oath as required for its validity.”

In the instant case, the traffic ticket was not signed by the arresting officer. That omission renders the printed form invalid as an affidavit and arrest warrant. The requirements set forth in the document call for the undersigned to depose and say that he has probable cause to believe that the person named committed a certain offense.

Our original opinion held that a traffic ticket would support a forgery conviction because the ticket serves as an appearance bond once the defendant has signed it. Before the ticket can take on that legal characteristic, however, it must first be a valid summons to court. All law enforcement officers issuing a traffic ticket are required to complete and sign the ticket and serve a copy of the completed ticket upon the defendant. A.R.J.A. 19(A)(5)(a). Courts are to accept for filing and disposition those tickets properly issued. A.R.J.A. 19(A)(2).

For these reasons, the judgment of the lower court is due to be reversed.

ORIGINAL OPINION WITHDRAWN; APPLICATION FOR REHEARING GRANTED; REVERSED AND REMANDED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Roger Richard HAMM v. STATE.
    8 Div. 765.
    The Court of Criminal Appeals of Alabama.
    May 3, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-1027.

      N. Michael Suttle of Potts, Young & Bla-singame, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

The appellant was convicted of burglary in the third degree and sentenced to sixteen years in the penitentiary. He did not challenge the sufficiency of the State’s proof at trial, nor does he argue on appeal that the verdict is unsupported by the evidence. Testimony for the State clearly established that on May 9, 1982, appellant entered and remained unlawfully on the business premises of Mrs. Margaret Foster, with the intent to commit the crime of theft of property-

The only issue presented on appeal is the propriety of appellant’s sentence under § 13A-5-9, Code of Alabama 1975, the habitual offender statute. At appellant’s sentencing hearing the State introduced evidence of the following three convictions: (1) a 1977 Florida conviction for attempted burglary of a dwelling; (2) a 1980 Colbert County, Alabama, conviction for theft of property in the second degree; and (3) a May 26, 1982, Lauderdale County, Alabama conviction for receiving stolen property in the second degree.

Defense counsel objected to the admission of the first two convictions on the basis that the judgment entries were not properly certified. See Ala.Code §§ 12-21-70, 12-21-67 (1975). The trial court noted that evidence of these convictions had been admitted in “another case,” Lauderdale County CC-82-45, and stated the following:

“THE COURT: I don’t think it would be admissible in this case simply because it was admitted in the other case now, but I — on the other hand, it may be admissible on its own merits. Where are the original exemplifications?
“THE WITNESS: [Circuit Criminal Clerk]: They were mailed in the original transcript to the Court of Criminal Appeals.
“THE COURT: Is that case [CC-82-45] still pending in the Court of Criminal Appeals?
“THE WITNESS: Yes, sir.
“THE COURT: I’ll reserve a ruling on the objection....” (Emphasis added).

The court subsequently sustained the objection. Thereafter, defense counsel objected to the admission of the third conviction on the ground that it occurred after, rather than before, the commission of the instant offense. The court overruled this objection and admitted the evidence.

Appellant’s May 26, 1982, Lauder-dale County conviction should not have been used to enhance his punishment for a crime committed on May 9, 1982. “[T]he recidivist statute comes into play only when a defendant commits an offense after he has previously been convicted of a felony.” Burgess v. State, 412 So.2d 298, 299 (Ala.Cr.App.1982) (emphasis in original); Ala.Code § 13A-5-9(a) (1975).

The original certifications of the judgment entries pertaining to appellant’s Florida and Colbert County convictions were not introduced below because they had been sent to this court and are contained within the record of Hamm v. State, 425 So.2d 1372 (Ala.Cr.App.1982), affirmed without opinion December 28, 1982.

As our Supreme Court observed in Butler v. Olshan, 280 Ala. 181, 188, 191 So.2d 7 (1966), an appellate court may take judicial notice of its own records in another proceeding if the following three conditions are met:

“First, the pleading in the instant case must refer to the other proceeding; second, the other proceeding must be of record in the trial court whose decree or judgment is the basis of the instant appeal; and third, the prior proceeding must be of record in the [appellate] court in another appeal [there] or be set out in the instant record.”

All of the foregoing conditions are met here. First, while there were no “pleadings” below in the sense that that term is used in civil cases, the State’s “Notice of Sentencing Under Habitual Offender Statute” specifically referred to the “other proceedings,” Lauderdale CC-82-45, and both parties, as well as the trial court, referred to it at the sentencing hearing.

Second, case number CC-82 — 45 was of record in the Lauderdale Circuit Court. Finally, the appeal of case number CC-82-45 is of record in this court. Accordingly, we have taken judicial notice of our own records in Hamm v. State, supra. See also Buttram v. State, 338 So.2d 1062 (Ala.Cr.App.1976) (judicial notice taken of defendant’s competency determination in related case); Jones v. State, 48 Ala.App. 32, 261 So.2d 451 (1972) (judicial notice taken of Boykin colloquy in related guilty plea).

We have examined the record in Hamm and have determined that the original certifications for appellant’s Florida and Colbert County convictions are in proper order.

Burglary in the third degree is a Class C felony normally carrying a maximum sentence of ten years. Ala.Code §§ 13A-7-7, 13A-5-6(a)(3) (1975). Enhanced by one prior conviction, the sentence for a Class C felony is two to twenty years. Ala.Code §§ 13A-5-9(a)(l) (1975), 13A-5-6(a)(2). Enhanced by two prior convictions, the sentence for a Class C felony is ten to ninety-nine years or life. Ala.Code §§ 13A-5-9(b)(l), 13A-5-6(a)(l).

Therefore, appellant’s sixteen-year sentence falls within the prescribed sentence range for either a one- or a two-time prior offender, as the following comments by the trial court indicate:

“THE COURT: It seems to me it would be rather moot as to whether or not the defendant is sentenced under the provisions of the Habitual Offender Act based on three prior convictions or two or one when all three would encompass the sentence that the Court feels is the appropriate sentence in this case.”

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: EHRLICH, Justice.

text:
    ANGORA ENTERPRISES, INC., etc., et al., Petitioners, v. Benjamin COLE et ux., et al., Respondents. Joseph KOSOW, Petitioner, v. Benjamin COLE et ux., et al., Respondents.
    Nos. 61378, 61396.
    Supreme Court of Florida.
    June 16, 1983.
    Rehearing Denied Oct. 27, 1983.
    Robert S. Levy, West Palm Beach, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for Angora, et al.
    Chesterfield Smith, Miami, Steven D. Merryday, Tampa, and Michael L. Rosen, Tallahassee, of Holland & Knight, and Gerald Mager and Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider and Mager, Hollywood, for Kosow.
    Mark B. Schorr and Alan S. Becker of Becker, Poliakoff & Streitfeld, Fort Laud-erdale, for respondents.
   EHRLICH, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal, Cole v. Angora Enterprises, 403 So.2d 1010 (Fla. 4th DCA 1981). That decision concerned the enforceability of an escalation clause in a recreational lease attached to a declaration of condominium, and other issues relating to condominiums. The district court affirmed in part and reversed in part and then certified the following questions:

(1) Whether the lessor expressly consented to the incorporation of Florida Statute 718.401(4) into the terms of the contract.
(2) Whether the rent escalation clause is rendered unenforceable.
(8) Whether the assignment and sale of the long term lease in exchange for a purchase money mortgage permits of the disbursement of funds from the registry of the court to pay said purchase money mortgage and
(4) Whether the condominium association and its unit owners may at this stage state a cause of action under the facts of this case for breach of fiduciary duty and self dealing.

403 So.2d at 1014. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.

We hereby affirm the judgment of the district court for the reasons set forth herein.

Petitioners are Angora Enterprises, developer of a condominium and original lessor under a recreational lease, and American Capital Corporation (Viking), the parent corporation of Angora, and Joseph Ko-sow, the present owner and lessor of the leased property. Respondents Cole, et al., are owners of condominium units and the condominium association which operates those condominiums.

Prior to 1975, Angora Enterprises developed the Lakeside Village condominium complex. Although the developer sold the individual units outright, it retained title to a certain portion of the property and developed it as a recreational facility. Persons purchasing units in the condominium received a copy of the declaration of condominium with the lease for use of the recreational facilities attached to it. That document bound each unit member upon purchasing a condominium unit and becoming a member of the association to pay a proportional share of the rent on the recreational facilities. A clause in the lease called for an escalation in the rent every five years, based on an increase in the cost of living index.

This controversy centers around the escalation clauses in eleven recreational leases. Begun in 1975, the action alleged violations of both the Deceptive and Unfair Trade Practices Act, and Condominium Act, and challenged the validity of the escalation clauses. It was coupled with a motion to pay the rent into the registry of the court as provided by section 718.401, Florida Statutes (1977). The trial court dismissed the action and, while an appeal was pending, Angora assigned the lease to Kosow who assumed the existing institutional mortgage and gave back to Angora a purchase money mortgage for the balance of the sale price. The Fourth District Court affirmed in part and reversed in part. Cole v. Angora Enterprises, 370 So.2d 1227 (Fla. 4th DCA 1979).

The complaint was then refiled along with another motion for leave to deposit rent into the registry. Petitioner Kosow sought disbursement of the funds to make payment on the mortgage under section 718.401(4), Florida Statutes (1977). This motion was granted over respondents’ objection that it was not the type of mortgage contemplated by the statute. Respondents appealed this order. The trial court again dismissed the complaint and awarded attorneys’ fees to the petitioner. The district court of appeal consolidated review of this order and the review of the order to disburse funds. It then decided the cause and certified the questions as being of great public importance. We will respond to the questions in order.

First, we are asked to decide whether or not the petitioner lessor expressly consented to the incorporation of section 718.401(4), Florida Statutes (1977), into the terms of the contract by virtue of the language in the declaration of condominium. That language set forth in the submission section of the declaration reads as follows:

ANGORA ENTERPRISES, INC. ... hereby states and declares that said realty, together with improvements thereon, is submitted to Condominium ownership, pursuant to the Condominium Act of the State of Florida, F.S. 711 et seq. (hereinafter referred to as the “Condominium Act”), and the provisions of said Act are hereby incorporated by reference and included herein thereby, ....
(Subsection G of Article I defines condominium act as follows:)
Condominium Act, means and refers to the Condominium Act of the State of Florida (F.S. 711 Et Seq.) as the same may be amended from time to time.

(Emphasis added).

Further on in the declaration we find specific references to the attached long term-lease which is “attached to this Declaration and made a part thereof.” The declaration is signed by the developer and the condominium association, the same two parties who signed the lease. The lease also refers back to the declaration and not only sets the monthly fee for use of the recreational facilities, but provides for a first lien on the unit owner’s property should that unit owner fail to make the monthly rental payment.

The lessor argues that these are separate documents, each standing alone, but to adopt that rationale is to ignore the realities of the situation. And to say that the lessor who in his corporate capacity was both the developer and the management firm, did not agree to the terms of declaration is to refuse to see what is plainly written in black and white.

Consequently, we agree with the district court that this case as to the rent deposit statute is controlled by our decision in Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128 (Fla.1978), that the parties intended to be bound by future amendments to the condominium act and as such section 718.401(4) is applicable and enforceable under the facts of the instant case.

It logically follows that section 718.-401(8), the statute that declares escalation clauses in recreation or land leases void and unenforceable, also was encompassed by the language in the declaration. Since the parties had agreed to be governed by amendments to the act, they therefore agreed to be bound by the purview of this statute.

Petitioners argue that this case is controlled by Fleeman v. Case, 342 So.2d 815 (Fla.1977). That case held that this statute could not be applied to pre-1974 leases because the legislature did not intend retroactive effect. We are compelled to outline the distinction between Fleeman and the case at bar. The controlling difference is the fact that there was no language in the Fleeman documents evidencing consent on the part of the lessor to incorporate the Condominium Act and its future amendments into the contract. See also Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977).

As to the last two questions, we agree with the district court’s analysis. We agree with the district court that this as-signee accepted the assignment with notice of the dispute over the rents. Therefore, under these circumstances, since the assign- or was without power to withdraw the funds to pay other than the institutional mortgage in existence when the litigation began, the assignee must likewise be impotent to do so. Florida East Coast Railway v. Eno, 99 Fla. 887, 128 So. 622 (1930).

Finally, we consider whether or not a condominium association and its unit owners may state a cause of action for breach of fiduciary duty and self dealing when a recreational lease is executed. This is, of course, controlled by Avila South Condominium Association v. Kappa Corp., 347 So.2d 599 (Fla.1977). Though the association and its unit owners could have done so at an earlier stage in the litigation, it is now too late. United States Fidelity & Guaranty Co. v. Sellers, 197 So.2d 832 (Fla. 1st DCA), cert. denied, 204 So.2d 211 (Fla.1967).

The decision of the district court is approved and this cause is remanded for further proceedings.

Both parties have petitioned for attorneys’ fees. Pursuant to section 718.303(1), Florida Statutes (1981) and the terms of the lease, the respondents as the prevailing parties are entitled to recover reasonable attorneys’ fees. The case is remanded to the trial court for determination of such fees.

It is so ordered.

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

BOYD, J., dissents.

      . The two sections under discussion are as follows:
      § 718.401, Fla.Stat. (1977)
      (4)(a) In any action by the lessor to enforce a lien for rent payable or in any action by a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner may raise any issue or interpose any defenses, legal or equitable, that he may have with respect to the lessor’s obligations under the lease. If the unit owner initiates any action or interposes any defense other than payment of rent under the lease, the unit owner or the association shall pay into the registry of the court any allegedly accrued rent and the rent which accrues during the pendency of the proceeding, when due. If the unit owner fails to pay the rent into the registry of the court, it shall constitute an absolute waiver of the unit owner’s or association’s defenses other than payment, and the lessor shall be entitled to default. When the unit owner has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement of all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities or necessary for the payment of other expenses arising out of personal hardship resulting from the loss of rental income from the leased facilities. The court, after an eviden-tiary hearing, may award all or part of the funds on deposit to the lessor for such purpose. The court shall require the lessor to post bond or other security, as a condition to the release of funds from the registry, when the value of the leased land and improvements, apart from the lease itself, is inadequate to fully secure the sum of existing encumbrances on the leased property and the amounts released from the court registry. (8)(a) It is declared that the public policy of this state prohibits the inclusion or enforcement of'escalation clauses in land leases or other leases or agreements for recreational facilities, land, or other commonly used facilities serving residential condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium lease or agreement which provides that the rental under the lease or agreement shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Evan I. FETTERMAN, Respondent.
    No. 60731.
    Supreme Court of Florida.
    July 28, 1983.

      John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, Cynthia Prettyman and Michael D. Powell, Bar Counsels, Fort Lauder-dale, and Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for complainant.
    John J. Pine, North Palm Beach, for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on respondent’s petition for review. We have jurisdiction. Art. V, § 15, Fla. Const.

Respondent practices law in Palm Beach County under the name of “The Law Team, Fetterman and Associates” and has used this name in advertising certain available legal services provided by his firm, as well as including such name on his firm’s letterhead.

The complaint of The Florida Bar asserts that the use of “The Law Team, Fetterman and Associates” constitutes unethical practice under a trade name, that the use of “Associates” is inherently misleading to the public in that it connotes the assemblage of more than two lawyers together in the practice of law, and finally that past radio advertisements utilizing the words “The Law Team, Fetterman and Associates” were misleading.

Respondent counters by asserting that “The Law Team” does not constitute a trade name under established principles and case law, and further asserts that “Associates” is not inherently misleading to the public. Respondent further contends that even if “The Law Team” is deemed to be a trade name as contemplated by the Florida Code of Professional Responsibility, trade names are not misleading to the public per se, but rather are, at worst, only potentially misleading. Respondent argues that the public has not, in fact, been misled or deceived because of his use of the words “The Law Team, Fetterman and Associates,” and moreover, there is no strong possibility of the public’s being misled in the future.

Respondent seeks review of various findings of fact and recommendations made by the referee in his report, pertinent parts of which are set forth below.

FINDINGS OF FACT
COUNT I
Respondent, starting in January 1980, utilized the words “Fetterman and Associates” to identify his law-practice; the respondent utilized the words “The Law Team, Evan Fetterman and Associates” in newspaper advertising, radio advertising and on his office stationery; the respondent authorized and directed the phrase “The Law Team” to be used in radio and newspaper advertising and on his legal stationery; The Florida Bar has never received public complaint on the use of the terminology “The Law Team.”
COUNT II
From January 1980 to the present the respondent continues to utilize the words “Evan Fetterman and Associates,” and during this time the respondent usually had one, but never more than two salaried attorneys working for him; The Florida Bar never received a complaint from the public regarding the use of the terminology.
COUNT III
Respondent commenced radio advertising of his law practice in May 1980; the radio advertising utilized the name of “The Law Team of Fetterman and Associates” to identify respondent’s law practice; these radio advertisements appeared at different times during the course of a day, and were played on three different radio stations during the period from May 1980 to October 1980 at which time they ceased, and to the present have not been aired again. Again, there was no evidence presented that The Florida Bar received any public complaints on these radio advertisements utilized by respondent.
RECOMMENDATIONS AS TO GUILT
COUNT I
I recommend that respondent be found guilty of violating Florida Bar Code of Professional Responsibility D.R. 2-102(A) and 2-102(B).
COUNT II
I recommend that respondent be found guilty of violating Florida Bar Code of Professional Responsibility D.R. 2-101(A), D.R. 2-101(B)(l) and D.R. 2-102(A).
COUNT III
I recommend that respondent be found guilty of violating Florida Bar Code of Professional Responsibility D.R. 2-101(C)(5) and 2-101(C)(6).
RECOMMENDATIONS AS TO DISCIPLINE
1. I recommend that the respondent •be enjoined immediately from the use of the term “Law Team” in any of his present or future advertisements; that any future advertisements utilize the language “The Law Office,”
2. I recommend that the respondent be enjoined immediately from the use of the term “and Associates” in any of his present or future advertisements; and that any future advertisements utilize solely language stating “The Law Office of Evan Fetterman,”
3. I recommend that the respondent be enjoined immediately and told privately to cease and desist in the use of radio advertising as set forth in The Florida Bar’s Exhibit # 4,
4. I recommend that if the respondent fails to comply with the referee’s recommendations set forth in # 1, # 2, and # 3, above, that The Florida Bar prepare a complaint citing the respondent with direct contempt, remanding the Complaint to the referee for an appropriate finding of fact and recommendations,
5. I recommend that the Supreme Court of Florida assess the costs of this proceeding against the respondent, with said costs in the amount to be determined by appropriate affidavit to be submitted to the referee by the complainant and forwarded to the Supreme Court for final approval.

The Florida Bar Code of Professional Responsibility does not strictly prohibit practice under a trade name, but rather prohibits use of any name “that is misleading as to the identity, responsibility or status of those practicing thereunder... . ” Fla. Bar Code Prof.Resp., D.R. 2-102(B).

Stated another way, the crucial inquiry in this case is not whether a trade name is being employed, because we expressly find that it is, but rather it is whether the trade name “The Law Team” as it is employed by respondent is offensive either because it is inherently misleading to the public or because it is operatively misleading. Matter of RMJ, 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).

Since no evidence that the public was actually deceived or misled was presented, our inquiry must concern whether or not the use of “The Law Team” is inherently misleading as employed by respondent so as to justify proscription of its use in respondent’s firm name as well as in commercial advertisements. Whether or not a particular trade name is to be deemed inherently misleading will depend upon the particular facts and circumstances of each case. RMJ, 102 S.Ct. at 938 n. 16.

Respondent argues that “The Law Team” is no more misleading to the public than the tolerated usages of “Law Clinic” and “Legal Clinic,” in that such words are merely descriptive terms not associated with any one law firm. The Bar contends that “The Law Team” is inherently misleading in that the public is left unsure as to the identity, responsibility or status of persons practicing thereunder.

We find no reason for distinguishing “Law Team” from “Law Clinic.” Both terms suggest the assemblage of a number of professionals under a single heading. The firm name of “Legal Clinic of Bates and Osteen” was approved by the Supreme Court in Bates. Were respondent to practice solely under the name of “The Law Team” without his name also appearing in conjunction therewith, then such usage would be inherently misleading because in such case the public would not be made aware of who is to be held accountable for the firm’s actions.

The layman coming to “The Law Team, Fetterman and Associates” for legal assistance is made aware of respondent’s identity and responsibility for the actions of the firm by virtue of his name appearing in the firm name, the same as if it were identified as a law clinic. Respondent’s status is facially at least that of a lawyer practicing under his own name with the assistance of lawyer-employees or associates as that term of art is to be understood in the legal-professional context.

Therefore we do not find “The Law Team, Fetterman and Associates” to be an inherently misleading trade name as it is employed by respondent in conjunction with his own name. Consequently, we find no violation of Florida Bar Code of Professional Responsibility D.R. 2-102(A) or D.R. 2-102(B).

The Bar takes issue with the use of “Associates” in respondent’s firm name. Although we are aware of the fact that the word “Associates” can have multiple meanings depending upon the context in which it is being employed, we decline to accept The Bar’s position that it is not capable of precise definition in a legal-professional context.

An associate is a salaried lawyer-employee who is not a partner of the firm. All other non-lawyer employees are to be considered simply employees and not associates. This category of employees includes paralegals, secretaries, non-lawyer clerks, officer managers and the like. When the word associates is employed on firm letterhead or in commercial advertisement such term refers to lawyers working in the firm who are employees of the firm and not partners.

Having limited the definition of the word associates as it is to be applied in the legal-professional context we now consider The Bar’s contention that respondent’s use of “Associates” constitutes a violation of Florida Bar Code of Professional Responsibility D.R. 2-101(A), D.R. 2-101(B)(l) and D.R. 2-102(A), in that under the facts of this case it constitutes a material misrepresentation of fact as to the number of lawyer-employees employed by respondent’s firm.

It was stipulated that at the time the current firm name of “The Law Team, Fet-terman and Associates” was established respondent employed two associates. Hence, the firm name was proper at the outset. It has been further established that at times subsequent to the naming of the firm, respondent has employed less than two associates in his firm, and The Bar argues that respondent’s practice under such circumstances constitutes a misrepresentation of fact in violation of Florida Bar Code of Professional Responsibility, D.R. 2-101(A), D.R. 2-101(B)(l), and D.R. 2-102(A).

Although The Bar is technically correct in its argument on this point, we find that the use of “Associates” is not a material misrepresentation as contemplated by the disciplinary rules.

If the initial use of the words “and Associates” in a firm name is appropriate in that two or more associates practice under the firm name, then subsequent losses of associates will not transform the previously appropriate firm name into one that is misleading under the Code of Professional Responsibility as long as at least one associate remains. Such a result is allowed in the case of established law firm names originally indicating viable partners and which presently retain the original firm name long after the original partners have met their demise. No different result should be obtained under the circumstances existent in the case sub judice.

Respondent’s name is listed in the firm name, and the general public is sufficiently apprised thereby of his position of responsibility with respect to the firm’s obligations and duties to its clients. That “Associates” is employed in the firm name simply means that respondent employs other lawyers to assist him in the practice of law.

We find that the usage of “Fetterman and Associates” is not employed in violation of Florida Bar Code of Professional Responsibility D.R. 2-101(A), D.R. 2-101(B)(l), and D.R. 2-102(A), and as such we decline to adopt the referee’s recommendation that respondent be enjoined from using such language under the circumstances existing in the case sub judice. However, if the respondent no longer employs other lawyers to assist him in the practice of law, the word “associates” may no longer be used in the firm name.

A final point worth noting is the constitutional question regarding free commercial speech. The Bar argues that “The Law Team, Fetterman and Associates” is misleading per se; accordingly the use of such language may be prohibited. Respondent argues that such an attempt to restrict the free flow of commercials is in violation of the United States Constitution, amendments I and V, and article I, section 4 of the Florida Constitution.

Commercial speech is expression related solely to the economic interests of the speaker and his audience, and in the legal-professional context, its purpose is to engage the lawyer for personal profit. Matter of RMJ, 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); Central Hudson Gas Co. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

The Supreme Court has recently set forth the commercial speech doctrine as it should be applied in the context of professional advertising:

Commercial speech doctrine, in the context of advertising for professional services, may be summarized generally as follows: Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proven that in fact such advertising is subject to abuse, the states may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the states may not place an absolute prohibition on certain types of potentially misleading information....

102 S.Ct. at 937 (emphasis added).

The Court further stated:

Even when a communication is not misleading, the state retains some authority to regulate. But the state must assert a substantial interest and the interference with speech must be in proportion to the interests served.

Id. (emphasis added).

Having already found that “The Law Team, Fetterman and Associates” is neither inherently nor operatively misleading, we find that The Bar has not met its burden under RMJ.

In the area of professional advertisement of legal services this Court remains mindful of the delicate balance between constitutional freedom of expression and legitimate restrictions upon the unrestrained exercise of that privilege. We are also cognizant that the special characteristics of such services afford opportunities to mislead and confuse that are not present when standardized services are offered to the public. Nevertheless, in the present case The Bar has failed to establish to this Court’s satisfaction the requisite substantial justification for the attempted restraint on respondent’s use of “The Law Team, Fetterman and Associates.” RMJ; Central Hudson Gas, 447 U.S. at 563-64, 100 S.Ct. at 2350; Bates, 433 U.S. at 350, 97 S.Ct. at 2692. Accordingly, respondent may continue in his use of such name to identify his law practice, and to advertise legal services provided he, in fact, has associates employed in his firm.

However, we do find that the radio advertisement referred to as the “Love 94 Tape,” which was employed by respondent, contained sensational language in violation of Florida Bar Code of Professional Responsibility D.R. 2 — 101(C)(5) and D.R. 2-101(C)(6). Even though respondent has voluntarily ceased using these advertisements, we feel compelled to caution against any further use of such advertisements. No sanctions will be imposed.

Our approval of the use of the words “law team” and “associates” together with the legal profession’s acceptance of the term “law clinic” should not, however, be taken as an invitation to lawyers to experiment with other terminology to attract the public’s attention. This appears to be the outer limit allowable.

The motion of the Florida Bar to tax costs in the amount of $951.03 is denied.

It is so ordered.

ADKINS, BOYD, OVERTON, MCDONALD and SHAW, JJ., concur.

ALDERMAN, C.J., and EHRLICH, J., dissent.


author: PER CURIAM. BOYD, Justice,

text:
    Robert Alan TEFFETELLER, Appellant, v. STATE of Florida, Appellee.
    No. 60337.
    Supreme Court of Florida.
    Aug. 25, 1983.
    Rehearing Denied Nov. 1, 1983.

      James B. Gibson, Public Defender, and Michael S. Becker and Christopher S. Quarles, Asst. Public Defenders, Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Robert Teffeteller appeals his conviction for the first-degree murder of Peyton Moore and his sentence of death. He also appeals his sentence for the charge of using a firearm in the commission of a felony, for which he received a concurrent term of three years. We have jurisdiction of this cause pursuant to article V, section 3(b)(1), Florida Constitution. Finding no merit to any of appellant’s challenges to his conviction, we affirm the conviction. We also affirm the sentence for the firearms offense. However, we reverse the sentence of death imposed after a jury recommendation of death because of improper and prejudicial comments by the prosecutor during the penalty phase and remand for a new sentencing hearing before a new jury.

In January 1979, Peyton Moore was walking back to his home in Ormond Beach after jogging on the beach. He was stopped by appellant and George Overton in a car driven by appellant. Overton asked for Moore’s wallet. Moore told the men he had no money. A shotgun was then pointed out the passenger side window at Moore and fired. The car sped away. Moore sustained massive abdominal damage due to the shotgun blast but remained conscious and coherent for about three hours. He was given emergency aid both at the scene and at the hospital. At both locations, he gave a statement to the police describing what happened. Moore later died on the operating table. Eventually, appellant was caught after a series of travels around the country with Overton and others and indicted for the murder. Trial proceeded but on the second day the court declared a mistrial due to improper references, prompted by questions from the court to a state witness, relating to the murder of Overton by appellant in Texas. The trial judge then recused himself. At the new trial, appellant was convicted and sentenced to death.

Appellant raises a total of fourteen issues on this appeal. We will discuss six; the others have been carefully considered by this Court and held to be meritless.

Appellant first argues that he was denied due process when the trial court overruled his objection and denied his motion for new trial which was based upon the state’s improper bolstering of a witness’s testimony through the introduction of a pri- or consistent statement. The testimony of Donald Poteet was both lengthy and incriminating to the appellant. Among other things, Poteet testified that appellant pointed out the street where he had shot Moore. During the testimony, the prosecutor asked, “And did you tell Lieutenant Blankenship basically the same thing that you have testified here today?” Poteet answered, “Yes, sir.” Appellant’s timely objection was overruled. Appellant argues that a prior consistent statement may not be introduced to shore up a witness’s testimony unless and until an effort is made to impeach his testimony. Van Gallon v. State, 50 So.2d 882 (Fla.1951); Trainer v. State, 346 So.2d 1081 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977). While this is a correct statement of the law, it lacks applicability to the instant set of facts. The trial court found that the question was designed to tie Po-teet’s testimony in “time-wise” with prior testimony and to locate it in perspective; the judge described it as “making an envelope.” Additionally, the subsequent testimony of Poteet revealed a necessity to identify and localize the statement in light of other testimony that appellant had later instructed Poteet and another confident to change their stories and to claim that the now-deceased Overton was the triggerman.

Even if the trial court’s ruling were error, we find that it was harmless. “A judgment will not be reversed unless the error was prejudicial to the substantial rights of the appellant.” Palmes v. State, 397 So.2d 648, 653 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). “In determining whether an erroneous ruling below caused harm to the substantial rights of the defendant, an appellate court ... inquires generally whether, but for the erroneous ruling, it is likely that the result below would have been different.” 397 So.2d at 653-54. Almost identical testimony to Donny Poteet’s was elicited from witnesses Kuykendall and Danny Poteet. In fact, these two individuals’ statements were more incriminating and more damaging to appellant than the statement objected to. The result below clearly would not have been any different even had Donny Poteet not testified at all. We thus hold that the error, if any, was harmless.

Appellant’s second claim is that the trial court erred in finding certain hearsay evidence admissible under the dying declaration exception. The trial court allowed into evidence Peyton Moore’s statements to Officer Morgan which described the nature of the robbery encounter, and in particular a description of the passenger of the car. Earlier, Morgan had testified that Moore had commented, “Oh God, I’m going.” In response to that comment, attending doctors had consoled Moore and told him he should not worry. He died soon thereafter. Appellant argues that there was insufficient testimony to establish that Moore actually believed and was aware of his dying condition and thus a sufficient predicate was not laid. We disagree.

It is not necessary that the evidence .. . should consist of express utterances of the deceased to the effect that he knew he was going to die, or could not live, or would never recover. It may be gathered from any circumstance or from all the circumstances of the case, and is sufficient if the evidence .. . satisfies the judge that the deceased knew and appreciated his condition as being that of an approach to certain and immediate death.

Lester v. State, 37 Fla. 382, 385, 20 So. 232, 233 (1896). See also Covington v. State, 145 Fla. 680, 200 So. 531 (1941); Johnson v. State, 113 Fla. 461, 152 So. 176 (1934); Mills v. State, 264 So.2d 71 (Fla. 1st DCA 1972). In the case sub judice, Moore’s initial cry that he was “going,” coupled with the statements from attending Doctors Knight, Schwartz, Doig and Marino that terminal patients on the “final glidepath” are aware of their impending death and that the doctors believed, given the nature of the wound and Moore’s lucidity, that Moore knew he was dying, are sufficient predicates to allow the introduction of the dying declaration of Moore. Whether a proper and sufficient predicate has been laid for the admission in evidence of a dying declaration is a mixed question of law and fact and will not be disturbed unless clearly erroneous. Johnson v. State. We cannot say that it was clearly erroneous for the trial court to admit the dying declaration in the instant case.

Appellant next argues that the trial court erred in failing to instruct the jury on the essential elements of the underlying felony. He argues that since the evidence showed, at most, felony murder, the court inadequately instructed on the underlying felony of attempted robbery. In particular, he claims that the instructions given were deficient in that they omitted aid in defining “attempt” and “intent to permanently deprive another of property.” We believe that appellant’s argument fails because his initial premise is invalid, thus we do not need to address the adequacy of the instruction. We find that the evidence shows that the conviction can be sustained not solely under a felony murder theory but also under a premeditation theory. The latter being valid, the alleged inadequacies in the underlying felony instructions become moot. There is evidence in the record that could have been believed by the jury that proves beyond a reasonable doubt that appellant was indeed the triggerman in this murder and that appellant acted from a premeditated design to effect the death of Peyton Moore. Of significance were appellant’s admissions to the Poteet brothers and Richard Kuykendall that he had murdered the victim and the later attempts by the appellant to have these three individuals change their story and blame the murder on the deceased Overton. Circumstantial evidence is admissible to establish premeditation. See Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Larry v. State, 104 So.2d 352 (Fla.1958). Under the facts of the present case, we believe there is substantial, competent evidence to uphold appellant’s conviction under a premeditation theory. That being so, any error in the instructions on the underlying felony of attempted robbery becomes harmless. Knight v. State, 394 So.2d 997 (Fla.1981); Frazier v. State, 107 So.2d 16 (Fla.1958).

We thus affirm appellant’s conviction of murder in the first-degree. Additionally, even though the issue was not raised on this appeal, we have studied the record and found no error in appellant’s conviction for the use of a firearm in the commission of a felony. That conviction likewise is upheld.

Appellant’s remaining issues relate to the sentences he received for these crimes. He first argues that the trial court erred during the penalty phase in denying his motion for a cautionary instruction or a mistrial based upon improper and prejudicial comments by the prosecutor. We agree. During his argument to the jury, the prosecutor urged the jury to recommend that appellant receive the death penalty or else he would be paroled in twenty-five years and would kill again. Redundantly, the prosecutor argued:

What you have to be concerned with is this, this Defendant, if you folks recommend mercy and that is the sentence that is imposed, will be eligible for parole in twenty-five years. He’s 27 now. He’s 52 when he gets out or when he is considered for parole. And you better believe that he will be considered for parole, given the condition of the parole releases in this State.
You look at that. This Defendant released on parole. What do you think is going to happen? He’s going. to kill again. You better believe he’s going to kill again.
He will go after Donny Poteet. He will go after Rick Kuykendall. Does he have to kill again before you think it’s the proper case? I don’t think so.
You must know that this Defendant will kill again and when he does it will be too late.
* * * * * *
[T]his Defendant will kill again if he is given a chance. I don’t see how you can find otherwise.
Don’t give him that chance. Don’t have to realize after he is paroled and after he kills someone else, perhaps Donald Poteet, perhaps Rick Kuykendall or who knows who he will go after.
******
Know that your determination will have a deterring effect on this Defendant and know that it will keep him from being able to kill again. Don’t let it happen. Don’t let it happen. Don’t let Robert Teffeteller kill again.

The trial court denied the motion for mistrial and refused to give a cautionary instruction.

Comments of counsel during the course of a trial are controllable in the discretion of the trial court, and an appellate court will not overturn the exercise of such discretion unless a clear abuse has been made to appear. Paramore v. State, 229 So.2d 855 (Fla.1969), vacated, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972). While “[i]t is extremely difficult to definitely state at what point the line should be drawn between what is doubtfully permissible argument and what is clearly wrong,” 229 So.2d at 860, in the instant case the line was clearly drawn too far. “We think that in a ease of this kind the only safe rule appears to be that unless this court can determine from the record that the conduct or improper remarks of the prosecutor did not prejudice the accused the ... [sentence] must be reversed.” Pait v. State, 112 So.2d 380, 385-86 (Fla.1959). We cannot determine that the needless and inflammatory comments by the prosecutor did not substantially contribute to the jury’s advisory recommendation of death during the sentencing phase. We hold that it was reversible error for the trial court to deny appellant’s motion for a mistrial or for a cautionary instruction.

This is yet another example of inexcusable prosecutorial overkill, resulting in a sentencing retrial before a jury. The material and human resources of the state are thus squandered. If this were a matter of first impression in this jurisdiction, there might arguably be some justification for counsel’s indulging in such elocution, but this Court has previously condemned this type of conduct. The failure to heed what the Court has said before in this area thus necessitates a sentencing retrial. The remarks of the prosecutor were patently and obviously made for the express purpose of influencing the jury to recommend the death penalty. The intended message to the jury was clear: unless the jury recommended the death penalty, the defendant, in due course, will be released from prison and will kill again, this time two of the witnesses who testified against him, and maybe others. There is no place in our system of jurisprudence for this argument. See Grant v. State, 194 So.2d 612 (Fla.1967); Singer v. State, 109 So.2d 7 (Fla.1959); Williams v. State, 68 So.2d 583 (Fla.1953); Stewart v. State, 51 So.2d 494 (Fla.1951); Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979). We thus reverse the sentence of death for first-degree murder and remand back to the trial court to hold a new sentencing trial before a jury.

Appellant next argues that the trial court erred in imposing the death sentence in that it incorrectly found certain aggravating factors and failed to find certain mitigating circumstances. Since we have remanded this cause to the trial court for a new sentencing proceeding, this issue may well arise again, and we therefore address it.

In its written findings of fact, the trial court found in aggravation that the appellant was serving a sentence for a Tennessee forgery conviction at the time of the murder; that the murder was committed during the course of an attempted robbery; and that the crime was especially heinous, atrocious and cruel. The court found nothing in mitigation; specifically, the court found that appellant had a significant history of criminal activity and his age of twenty-five was not a mitigating factor.

The trial' court correctly found that appellant was under sentence of imprisonment due to the Tennessee forgery conviction and appellant has not disputed that aggravating circumstance. He does dispute the other two factors. Since the murder was committed during the course of an attempted robbery, appellant claims that this creates a presumption for the imposition of the death penalty for all persons who commit first-degree felony murder in contrast to those who murder by premeditated design. This argument is without merit and has been disposed of already by this Court in White v. State, 403 So.2d 331 (Fla.1981). In any event, with sufficient evidence to support a conviction for premeditated murder in the instant case, the argument becomes academic. Finally, appellant disputes the trial court’s findings that the murder was heinous, atrocious and cruel. We agree with appellant that this killing does not fall within that category of murders which the legislature has denominated as especially heinous, atrocious and cruel. § 921.141(5)(h), Fla.Stat. (1979). As we stated in State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), “[w]hat is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” The criminal act that ultimately caused death was a single sudden shot from a shotgun. The fact that the victim lived for a couple of hours in undoubted pain and knew that he wasfacing imminent death, horrible as this prospect may have been, does not set this senseless murder apart from the norm of capital felonies.

Appellant argues that the trial court erred by not finding mitigating factors present. More specifically, appellant claims that he lacked a significant history of prior criminal activity. He claims that the dispositive word is “significant” and that one conviction for forgery and one prison escape do not rise to the level envisioned by the legislature as significant. The trial court noted in his findings on this issue that:

The Court finds the Defendant does have a significant history of criminal activity. He was convicted of the felony of forgery. Secondly, he was an escapee at the time of the offense. The Court did not take into consideration either the Texas murder or the Florida aggravated assault. Both of these offenses occurred after January 14, 1979. Additionally, the Court did not allow evidence of these later two offenses to go to the jury during the sentencing phase. The Court on one hand fears that events occurring after the offense may not be legally relevant. On the other hand the Court feels that these subsequent events are in fact relevant to the Defendant’s rehabilitation potential and should be considered by the Court and jury. The benefit of the doubt was given to the Defendant and these events were not considered by the Court, nor submitted to the jury.

We make two comments on the trial court’s findings relative to this mitigating factor. First, it is within the trial court’s province to decide whether a mitigating circumstance is proven and the weight to be given it. Riley v. State, 413 So.2d 1173 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982); 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 cannot say that it was error for the trial court to find a forgery conviction and a prison escape to be a significant history of criminal activity. Second, we note that the trial court gave the benefit of the “doubt” to appellant by not considering appellant’s Texas conviction for the murder of George Overton and appellant’s Florida conviction for an aggravated assault which had occurred in the Volusia County jail while appellant was awaiting the instant trial. We think the law is clear on this point and that there need be no doubt. We have held that “in determining the existence or absence of the mitigating circumstance of no significant prior criminal activity, ‘prior’ means prior to the sentencing of the defendant and does not mean prior to the commission of the murder for which he is being sentenced.” Ruffin v. State, 397 So.2d 277, 283 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). At resentenc-ing, the trial court may thus consider the Texas murder conviction and the Florida aggravated assault conviction.

Appellant further argues that the trial court should have found as mitigation that appellant was only an accomplice to the triggerman Overton. Appellant’s admissions to the Poteets and Kuykendall that he himself shot the victim belie this argument.

Appellant’s final issue for review relates to the sentence for the firearms offense. He claims that according to State v. Hegstrom, 401 So.2d 1343 (Fla.1981), he may be convicted of both murder and the firearms offense but that separate sentences are proscribed and hence the three year sentence for the firearms charge must be vacated. We disagree. Hegstrom was a felony-murder case; the instant murder conviction, as we have held above, may properly be based on premeditation. As such, the firearms offense is not a lesser-included offense of premeditated murder. See Borges v. State, 415 So.2d 1265 (Fla.1982). Separate sentences are thus not proscribed.

In summary, Robert A. Teffeteller’s conviction of murder in the first-degree is affirmed. His sentence of three years for the use of a firearm in the commission of a felony is also upheld. Appellant’s death sentence, however, is vacated and remanded to the trial court for a new sentencing proceeding with a jury.

It is so ordered.

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

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the judgment affirming appellant’s conviction but dissent to the order vacating the death sentence and awarding a new sentencing trial. The question of whether the prosecutor’s comments in closing argument at the sentencing proceeding were improper, and the separate question of whether they were prejudicial, must be determined in the context of the facts and circumstances of the crimes as shown by the evidence. Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978). If the facts shown by the evidence are shocking, prosecutorial comments thereon are likely to be somewhat intense and such fair comment is permissible. Darden v. State, 329 So.2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).

As the majority opinion recognizes, the cases cited therein pertaining to improper inflammatory argument were decided under the old capital felony sentencing proceedings. Under prior law in Florida, a conviction of a capital crime resulted in an automatic sentence of death unless the jury included with its verdict of guilt a recommendation of mercy. Such a recommendation of mercy was binding on the trial judge and resulted in a sentence of life imprisonment. The final arguments of counsel were directed both to the matter of guilt or innocence and to the matter of death or life imprisonment. Thus excessive comments by the prosecutor directed to one of the two matters to be determined by the jury were capable of improperly influencing the jury on the other matter. The result of improper comment was therefore often a finding of prejudice.

Under the current capital felony sentencing law, the trial proceeds in two stages, with a guilt phase followed by a sentencing proceeding. Thus the jury does not hear evidence and argument directed specifically at the question of sentencing until the defendant’s guilt of a capital felony has already been determined. There is thus no danger that a prosecutor’s inflammatory remarks on the question of sentence will improperly influence the jury on the question of guilt or innocence.

Another major difference between the old and the new sentencing procedures is of course that under current law the jury’s sentencing determination is advisory only. The trial judge imposes the sentence. Part of the judge’s function is to guard against any improper emotional impact on the determination of the sentence and to assure that the sentence imposed is based upon objective evaluation of the crime and the offender.

Even under the old sentencing procedure, prosecutorial reference to the possibility of parole with a life sentence was held not prejudicial because the institution of parole is a matter of such common knowledge. Paramore v. State, 229 So.2d 855 (Fla.1969), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972). There was a presumption that the trial judge was capable of controlling arguments of counsel and would keep them within proper bounds. Id.

Under the current sentencing law, we have rejected claims of improper comment at the sentencing phase where the comments did not appear to have prejudicially affected the final sentencing determination by the judge. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982).

Although the likelihood that an offender will commit violent crimes in the future is not a statutory aggravating circumstance, we have recognized that the statutory circumstances, examined in their entirety, seem to point to such propensity as a relevant matter in the sentencing determination.

[W]e believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the jury and the judge. It is a matter that can contribute to decisions as to sentence which will lead to uniform treatment.. . .

Elledge v. State, 346 So.2d 998, 1001 (Fla.1977).

Because I believe that the prosecutorial comments in this case were not improper, and that if they did exceed the bounds of propriety they had no prejudicial impact on the final sentencing determination, I dissent from the judgment granting a new sentencing trial.

      . We note that this Court has previously held that instructions on the elements of the underlying felony in a felony murder need not be as particularized as the instructions required when the felony is the primary charge. Vasil v. State, 374 So.2d 465 (Fla.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980).

      . We realize that the cited cases antedate the adoption of Florida’s tripartite capital sentencing procedure where the trial jury, the trial judge, and this Court are charged with the responsibility of independently weighing the evidence in aggravation and mitigation to determine whether the imposition of the death sentence is appropriate. Although a jury’s sentencing recommendation is only advisory, it is an integral part of the death sentencing process and cannot properly be ignored. Where the earlier cases mandated a reversal of the conviction because of improper prosecutorial comments, that was within a framework of the older statute; our new procedure merely requires a reversal of the sentence and a remand for a new sentencing trial only.


text:
    IN re RULES OF CRIMINAL PROCEDURE (SENTENCING GUIDELINES).
    No. 63962.
    Supreme Court of Florida.
    Sept. 8, 1983.
    Robert Wesley, Staff Counsel, Tallahassee, for Sentencing Guidelines Com’n, petitioner.
   PER CURIAM.

The Sentencing Guidelines Commission has proposed a rule of criminal procedure to implement sentencing guidelines in order to comply with the action of the legislature in its passage of section 921.001, Florida Statutes (1983). After publication of the proposed rule in The Florida Bar News, the Court received numerous comments and suggestions regarding the proposed rule. The commission considered these suggestions at its final meeting, August 26, 1983, made several changes, and transmitted its final version of the proposed rule to this Court.

We have considered the proposed rule and the comments and suggestions which have been received, and we hereby adopt, as rule 3.701 and form 3.988, the rule and forms appended to this opinion. The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12.01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.

It is so ordered.

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

ADKINS, J., dissents.

PROPOSED RULE

RULE 3.701. SENTENCING GUIDELINES

a. This rule is to be used in conjunction with forms 3.988(a)-(i).

b. Statement of Purpose

The purpose of sentencing guidelines is to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process. The guidelines represent a synthesis of current sentencing theory and historic sentencing practices throughout the state. Sentencing guidelines are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense- and offender-related criteria and in defining their relative importance in the sentencing decision.

The sentencing guidelines embody the following principles:

1. Sentencing should be neutral with respect to race, gender, and social and economic status.
2. The primary purpose of sentencing is to punish the offender. Rehabilitation and other traditional considerations continue to be desired goals of the criminal justice system but must assume a subordinate role.
3. The penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense.
4. The severity of the sanction should increase with the length and nature of the offender’s criminal history.
5. The sentence imposed by the sentencing judge should reflect the length of time to be served, shortened only by the application of gain time.
6. While the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentences established in the guidelines shall be articulated in writing and made only for clear and convincing reasons.
7. Because the capacities of state and local correctional facilities are finite, use of incareerative sanctions should be limited to those persons convicted of more serious offenses or those who have longer criminal histories. To ensure such usage of finite resources, sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes of the sentence.

c.Offense Categories

Offenses have been grouped into nine (9) offense categories encompassing the following statutes:

Category 1: Murder, manslaughter: Chapter 782 (except subsection 782.-04(l)(a)) and subsection 316.1931(2)
Category 2: Sexual offenses: Chapters 794 and 800 and section 826.04
Category 3: Robbery: Section 812.13
Category 4: Violent personal crimes: Chapters 784 and 836 and section 843.01
Category 5: Burglary: Chapter 810 and subsection 806.13(3)
Category 6: Thefts, forgery, fraud: Chapters 322, 409, 443, 509, 812 (except section 812.13), 815, 817, 831, and 832
Category 7: Drugs: Chapter 893
Category 8: Weapons: Chapter 790
Category 9: All other felony offenses

d. General Rules and Definitions

1. One guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing. The state attorney’s office will prepare the scoresheets and present them to defense counsel for review as to accuracy in all cases unless the judge directs otherwise. The sentencing judge shall approve all score-sheets.
2. “Conviction” means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.
3. “Primary offense” is defined as the most serious offense at conviction. In the case of multiple offenses, the primary offense is determined on the basis of the following:
a) The offense with the highest statutory degree, in the order of life felony, first-degree felony punishable by life, first-degree, second-degree, and third-degree felonies; and
b) In the event of two (2) or more offenses of the same degree, by the lowest numerical offense category.
4. Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court shall be scored as additional offenses based upon their degree and the number of counts of each.
5. a) “Prior record” refers to any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the instant offense. Prior record includes all prior Florida, federal, out-of-state, military, and foreign convictions.
1) Entries in criminal histories which show no disposition, disposition unknown, arrest only, or other nonconviction disposition shall not be scored.
2) When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida statute.
3) When unable to determine whether an offense at conviction is a felony or misdemeanor, the offense should be scored as a misdemeanor. Where the degree of the felony is ambiguous or impossible to determine, score the offense as a third-degree felony.
4) Prior record shall include criminal traffic offenses, which shall be scored as misdemeanors.
5) Convictions which do not constitute violations of a parallel or analogous state criminal statute shall not be scored.
b) Adult record: An offender’s prior record shall not be scored if the offender has maintained a conviction-free record for a period of ten (10) consecutive years from the most recent date of release from confinement, supervision or sanction, whichever is later, to the date of the instant offense.
c) Juvenile record: All prior juvenile dispositions which are the equivalent of convictions as defined in section d(2), occurring within three (3) years of the current conviction and which would have been criminal if committed by an adult, shall be included in prior record.
6. Legal status at time of offense is defined as follows:
Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear for a judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.
7. Victim injury shall not be scored if not a factor of an offense at conviction.
8. Guidelines ranges: The presumptive sentences provided in the guideline grids are assumed to be appropriate for the composite score of the offender. However, a sentence range is provided in order to permit some discretion without the requirement of a written explanation for departing from the presumptive sentence.
9. Mandatory sentences: For those offenses having a mandatory penalty, a scoresheet should be completed and the guideline sentence calculated. If the recommended sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed.
10. Sentences exceeding statutory máxi-mums: If the composite score for a defendant charged with a single offense indicates a guideline sentence that exceeds the maximum sentence provided by statute for that offense, the statutory maximum sentence should be imposed.
11. Departures from the guideline sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.
12. Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.
13.Community control, a form of intensive supervised custody in the community involving restriction of the freedom of the offender, is a sanction which the court may impose upon a finding that probation is an unsuitable disposition. When community control is imposed, it shall not exceed the term provided by general law.

COMMITTEE NOTE: (a) The operation of this rule is not intended to change the law or requirements of proof as regards sentencing.

(b) These principles are binding on the sentencing court.

(c) Only one category is proper in any particular case. Category 9, “All Other Felony Offenses,” should be used only when the primary offense at conviction is not included in another, more specific category. The guidelines do not apply to capital felonies.

Inchoate offenses are included within the category of the offense attempted, solicited, or conspired to, as modified by ch. 777.

If a defendent is to be sentenced for a probation violation, and the sentencing judge elects to revoke probation, the new sentence must be in accordance with the guidelines.

(d)(1) Ultimate responsibility for assuring that scoresheets are accurately prepared rests with the sentencing court. Due to ethical considerations, defense counsel may not be compelled to submit a scoresheet. Probation and parole officers may be directed to compile guidelines scoresheets only when a presentence investigation has been ordered. The forms for calculating the guidelines are forms 8.988(a)-(i).

(d)(2) This definition applies to both instant offense and prior record scoring.

(d)(3) The proper offense category is identified upon determination of the primary offense. When the defendant is convicted of violations of more than one unique statute, the offenses are to be sorted by statutory degree. In the event of multiple offenses of the same statutory degree, the primary offense is identified by the corresponding offense category with the lowest numerical designation.

(d)(4) No points shall be scored for lesser and included offenses, or for offenses which are the same as offenses within the same act or transaction.

(d)(5) Each separate prior felony and misdemeanor conviction in an offender’s prior record which amounts to a violation of Florida law shall be scored, unless discharged by the passage of time. Any uncertainty in the scoring of the defendant’s prior record shall be resolved in favor of the defendant, and disagreement as to the propriety of scoring specific entries in the prior record should be resolved by the trial judge.

Prior record includes all offenses for which the defendant has been found guilty, regardless of whether adjudication was withheld or the record has been expunged.

Juvenile dispositions, with the exclusion of status offenses, are included and considered along with adult convictions by operation of this provision. However, each separate adjudication is discharged from consideration if three (3) years have passed between the date of disposition and the conviction for the instant offense.

(d)(7) This provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.

(d)(8) The first guideline cell in each category (any nonstate prison sanction) allows the court the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county jail term alone or any nonincarcerative disposition. The presumptive sentences in the succeeding grids refer to commitments to state prison. The presumptive sentences are found in forms 3.988(a)-(i).

(d)(10) If an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category.

(d)(ll) The written statement shall be made a part of the record, with sufficient specificity to inform all parties, as well as the public, of the reasons for departure. The court is prohibited from considering offenses for which the offender has not been convicted.

Sentences under provisions of the Youthful Offender Act (ch. 958), the Mentally Disordered Sex Offender Act (ch. 917) or which require participation in drug rehabilitation programs (sec. 397.12) need not conform to the guidelines.

(d)(12) The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.

If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range.

(d)(13) Community control is a viable alternative for any state prison sentence less than twenty-four (24) months without requiring a reason for departure.

Form 3.988: Sentencing Guidelines

These forms are to be used in conjunction with Rule 3.701.

(a) Category 1: Murder, manslaughter: Chapter 782 (except subsection 782.04 (l)(a)) and subsection 316.1931(2)

I. Primary offense at conviction Points

II. Additional offenses at conviction

III. Prior record

IV. Legal status at time of offense

V. Victim injury (physical)

None Slight Moderate Death or severe 0 7 14 21 Total:

Category 1 (Homicide)

(b) Category 2: Sexual offenses: Chapters 794 and 800 and section 826.04

I. Primary offense at conviction Points

Additional offenses at conviction

III. Prior record

IV. Legal status at time of offense

V. Victim injury (physical)

Category 2 — Sexual Offenses

(c) Category 3: Robbery: Section 812.13

I. Primary offense at conviction Points

II. Additional offenses at conviction

III. A. Prior record

B. Prior convictions for Category 3 offenses

IV. Legal status at time of offense

V. Victim injury (physical)

Category 3 (Robbery)

(d) Category 4: Violent personal crimes: Chapters 784 and 836 and section 843.01

I. Primary offense at conviction Points

Additional offenses

III. Prior record

IV. Legal status at time of offense

V. Victim injury (physical)

Category 4 (Violent Personal Crimes)

(e) Category 5: Burglary: Chapter 810 and subsection 806.13(3)

I. Primary offense at conviction Points

II. Additional offenses at conviction

III. A. Prior record

B. Prior conviction for Category 5 offenses

IV. Legal status at time of offense

V. Victim injury (physical)

Category 5 (Burglary)

(f) Category 6: Thefts, forgery, fraud: Chapters 322, 409, 443, 812 (except section 812.13), 815, 817, 831 and 832

I. Primary offense at conviction Points

II. Additional offenses at conviction

III. A. Prior record

B. Prior conviction for Category 6 offenses

IV. Legal status at time of offense

V. Victim injury (physical)

Category 6 (Thefts, Forgery, Fraud)

(g) Category 7: Drugs: Chapter 893

I. Primary offense at conviction Points

II. Additional offenses at conviction

III. Prior record

IV. Legal status at time of offense

V. Victim injury (physical)

Category 7 (Drugs)

(h) Category 8: Weapons: Chapter 790

I. Primary, offense at conviction Points

II. Additional offenses

III. Prior record

IV. L.,0_ ,eo-al status at time of offense

V. Victim injury (physical) »

Category 8 (Weapons)

(i) Category 9: All other felony offenses

I. Primary offense at conviction Points

II. Additional offenses at conviction

III. A. Prior record

IV. Legal status at time of offense

V. Victim injury (physical)

Category 9

(All other felony offense category)