text:
    Ex parte Robert SMITH. (Re Robert SMITH v. Elbert SAINT).
    82-96.
    Supreme Court of Alabama.
    Sept. 23, 1983.

      T.J. Carnes of Carnes & Carnes, Albert-ville, for petitioner.
    Will Beard of Beard & Beard, Gunters-ville, for respondent.
   EMBRY, Justice.

On petition of Robert Smith, we granted the writ of certiorari to review the Court of Civil Appeals’, 438 So.2d 762, affirmance of the circuit court order setting aside a third-party default judgment against Elbert Saint entered in district court. The Court of Civil Appeals affirmed the order, reasoning that under ARCP 14(dc), the district court was without subject matter jurisdiction to enter a judgment. We quash the writ of certiorari because it was improvidently granted.

The issue before this court is the extent of the circuit court’s subject matter jurisdiction on appeal where an action filed in district court claiming more than the district court’s jurisdictional limit was dismissed rather than transferred under § 12-11-9, Code 1975.

John Deere Company filed a detinue action in Marshall County District Court claiming certain farm equipment or the reasonable value thereof. The complaint alleged the value of the farm equipment to be $5,000. Smith answered the complaint by pleading a general denial and filing a third-party complaint against Saint. The third-party complaint, based on a breach of warranty of title theory, sought damages from Saint in the event that Smith suffered any liability to John Deere.

After proper service on Saint, a default judgment was entered against him for failure to appear.

Testimony in the original action between John Deere and Smith revealed the property in question to be worth $10,000. However, rather than transferring the case to the circuit court, the district court dismissed the case, noting that the jurisdictional limit of the district court was $5,000.

John Deere appealed to the circuit court. The circuit court noted the impropriety of the dismissal; however, under the auspicies of its general supervisory powers, it attempted to correct the flaw by transferring the case itself and holding a trial de novo.

Judgment was rendered in favor of John Deere and against Smith on 1 September 1981. Smith moved to revise the judgment so as to include the default judgment against Saint entered in district court. On 2 October 1981 the circuit court granted Smith’s motion.

On 2 November 1981 Saint filed a motion seeking to have the third-party default judgment set aside. Upon review of the record, the circuit court discovered the third-party complaint against Saint was filed in district court contrary to the provisions of ARCP 14(dc). Accordingly, the circuit court set aside the judgment for third-party plaintiff Smith against third-party defendant Saint, reasoning that the district court was without subject matter jurisdiction over third-party practice. Smith appealed the ruling.

On appeal to the Court of Civil Appeals, that court rejected the notion of the circuit court’s authority to transfer a case from district court to circuit court on its own accord. Furthermore, the court found that any third-party complaint filed in district court was “spurious pleading”; ergo, any judgment arising therefrom was null and void.

Section 12-11-9, Code 1975, provides in pertinent part:

“If a case filed in . .. the district court is within the exclusive jurisdiction of the circuit court, the circuit clerk or a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court....” (Emphasis added.)

After testimony in the district court revealed that the amount in controversy un-disputedly exceeded the district court’s $5,000 jurisdictional limit, under the provisions of § 12-11-9, the district judge should have transferred rather than dismissed the case. However, John Deere neither sought a writ of mandamus directing the district court to transfer the case nor filed a separate action in circuit court, but rather chose to appeal the dismissal.

We are in agreement with the Court of Civil Appeals to the extent that a circuit court is without authority to transfer a cause from an inferior court under the auspices of its general supervisory powers. In re Ingram, 356 So.2d 618 (Ala.1978). Therefore, before it is necessary to review the effect of third-party practice in district court, this court must review the circuit court’s subject matter jurisdiction over the John Deere claim on appeal.

Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606 (1958); Payne v. Department of Industrial Relations, 423 So.2d 231 (Ala.Civ.App.1982). If a court is without subject matter jurisdiction, any judgment rendered therein is void. ARCP 60(b)(4); Nigg v. Smith, 415 So.2d 1082 (Ala.1982). Where it is unclear whether a court is exercising its original or appellate jurisdiction, but the amount in controversy is within the court’s original jurisdiction, an appellate court shall treat the lower court as exercising original jurisdiction. Cash v. Smith, 10 Ala.App. 417, 65 So. 193 (1914). But where, as here, it is clear that the circuit court is exercising appellate jurisdiction, it may consider only those matters raised on appeal to it. It is without subject matter jurisdiction to consider more. See Hooper v. Huey, 293 Ala. 63, 300 So.2d 100 (1974); Walker v. Eubanks, 424 So.2d 631 (Ala.Civ. App.1982).

The circuit court is vested with exclusive original jurisdiction for eases involving more than $5,000. § 12-11-30, Code 1975. Thus, the district court’s jurisdiction was limited to considering whether John Deere’s claim exceeded the court’s $5,000 jurisdictional amount. Likewise, the circuit court on appeal could only review whether the district court properly determined that the latter lacked subject matter jurisdiction. We find that on appeal, the circuit court lacked subject matter jurisdiction to consider more than a final judgment over which the district court had subject matter jurisdiction. See State v. Pollock, 251 Ala. 603, 38 So.2d 870 (1948); Craig v. Root, 247 Ala. 479, 25 So.2d 147 (1946). Accordingly, the circuit court was without subject matter jurisdiction to consider the merits of John Deere’s claim. Any judgment rendered without subject matter jurisdiction is void and will not support an appeal. ARCP 12(h)(3); Bibb v. Boyd, 417 So.2d 206 (Ala.Civ.App.1982). It follows that whether a third-party default judgment was entered in the district court is of no consequence. The writ of certiorari to the Court of Civil Appeals was improvidently granted and is hereby quashed.

WRIT OF CERTIORARI QUASHED.

MADDOX, FAULKNER, JONES, AL-MON, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and SHORES, J., concur in the result.

      . The Alabama Rules of Civil Procedure have recently been amended so to allow third-party practice in district court. See ARCP 14(dc) as amended effective 1 July 1983.

      . Section 12-11-30, Code 1975, authorizes a trial de novo in circuit court for matters appealed from district court. Of course, the circuit court must first have subject matter jurisdiction over the appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul Beasley JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 61341.
    Supreme Court of Florida.
    Aug. 25, 1983.
    Rehearing Denied Oct. 26, 1983.

      Jerry Hill, Public Defender and W.C. McLain, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen. and David T. Weis-brod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Paul Johnson appeals his convictions of first-degree murder and sentences of death. We have jurisdiction and affirm both the convictions and sentences.

A nine-count indictment charged Johnson with three counts of first-degree murder, two counts of robbery, kidnapping, arson, and two counts of attempted first-degree murder. The jury convicted Johnson of all counts as charged and recommended a sentence of death for each of the three first-degree murder convictions. The trial court imposed the recommended death sentences as well as lesser sentences on the remaining convictions.

The charges stemmed “from the following facts. Late in the evening of January 8, 1981 William Evans, a taxicab driver, picked up a fare in Polk County. After midnight, the dispatcher heard a stranger’s voice- several times over the cab!s radio. She never heard from the driver again, and five days later his cab and body were found in separate, isolated citrus groves. The cab had been set on fire, and the driver had been shot twice in the head; his wallet and fare money were missing.

About 3:00 a.m. on January 9, 1981 Darrell Beasley and Amy Reid left a Lakeland restaurant. In the parking lot a man approached them, said his car would not run, and asked for a ride to a friend’s house. In an isolated area the stranger asked Beasley to stop the car so that he could urinate. On returning to the car he asked Beasley to come to the rear of the car. Through the rear window, Reid saw the stranger holding a pistol on Beasley. She then locked the car doors and drove several miles to a store where she called the sheriffs department.

Deputies Allison and Darrington responded to Reid’s call and drove her in their patrol car to where she had left the two men. In the meantime another deputy, Theron Burnham, radioed that he had seen a suspect on the road in question. On arriving in the area Allison and Darrington stopped their car facing Burnham’s patrol car. A white male walked rapidly from a drainage ditch at the side of the róad and crossed in front of the deputies’ car. He fired two shots at the deputies and escaped across an open field. Allison and Darring-ton then found Burnham’s body in the drainage ditch; he had been shot three times.

Later that day searchers found Beasley’s body. He had been shot once in the head and his wallet was missing. The police arrested Johnson for these two homicides on January 10,1981 and the following week charged him with the cab driver’s murder.

As his first point on appeal, Johnson claims that a fellow inmate’s testimony as to Johnson’s admissions of guilt should have been suppressed under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), and Malone v. State, 390 So.2d 338 (Fla.1980), cert. denied, 450 U.S. 1034, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981), because the other inmate had become an agent of the state. The inmate, Smith, had worked as an informant for the sheriff’s department several months prior to the incidents at issue here. After meeting Johnson by chance and having a casual conversation with him, Smith contacted the detective he had previously worked for and told him what Johnson had said. This detective contacted the two detectives working on Johnson’s ease, who also spoke with Smith. Smith was moved to several different cells and eventually wound up in one next to Johnson’s cell. He took notes on his conversations with Johnson and turned them over to the detectives handling Johnson’s case.

At the hearing on the suppression motion Smith and the three detectives testified that Smith talked to Johnson on his own initiative, without any prompting from the detectives. The detective that Smith originally contacted said that he had told Smith that it might be in Smith’s best interest to write down what Johnson said. Smith, on the other hand, testified that he decided to take notes, solely on his own, because he had trouble remembering things. The other detectives stated that they had not told Smith to talk to Johnson or to take notes. Smith testified that he thought he had been moved to the isolation cell next to Johnson’s because he had been injured and because he had had a bad argument with a counselor.

After hearing both sides’ testimony, the court found Malone distinguishable from the instant case and denied the motion to suppress. A ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling. McNamara v. State, 357 So.2d 410 (Fla.1978). Here, the trial court held that the detectives did not direct Smith, either directly or surreptitiously, to talk with Johnson or to take notes on their conversations. Henry and Malone do not impose on the police an affirmative duty to tell an informer to stop talking and not approach them again nor do they require that informers be segregated from the rest of a jail’s population. We agree with the trial court that this case presents a close question on whether Smith had become an agent of the state, but we find the ruling that he had not to be supported by the evidence.

Amy Reid and Deputies Allison and Dar-rington identified Johnson from a lineup. On appeal Johnson attacks the lineup as having been impermissibly suggestive and claims the court erred in refusing to allow his expert to testify as to the unreliability of eyewitness identification. We find no error in these points.

The United States Supreme Court set out the standard for determining the reliability of an identification, on the totality of the circumstances, even though the procedure might have been suggestive in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The Court identified five factors relating to reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Id. at 199,93 S.Ct. at 382. In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court reiterated that the reliability of the identification is the most important concern and that it should be determined on the totality of the circumstances. This Court adopted the Manson two-part test in Grant v. State, 390 So.2d 341 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981):

(1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.

Id. at 343.

Johnson attacks the lineup because of its composition — only he had a suntan and blonde hair and his inmate uniform was a lighter blue than that of the other inmates in the lineup. Like the trial court, we do not find that the complained-of items made the lineup impermissibly suggestive. Moreover, we note that a sheriff’s department investigator testified that none of the witnesses indicated at the lineup that these items influenced their identifications. Besides finding the lineup not to have been unnecessarily suggestive, we find that these witnesses’ identifications conform to the five factors set out in Neil v. Biggers. We hold, therefore, that the trial court did not err in refusing to suppress these identifications.

Johnson attempted to call a professor of psychology as an expert witness in the field of eyewitness identification. According to Johnson, this witness would have explained both the common problems in such identifications and the general factors affecting a witness’ accuracy as well as testifying about the suggestiveness of the instant lineup itself. A trial court has wide discretion concerning the admissibility of evidence and the range of subjects about which an expert can testify. 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); Johnson v. State, 393 So.2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). Expert testimony should be excluded when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions. Johnson. We hold that a jury is fully capable of assessing a witness’ ability to perceive and remember, given the assistance of cross-examination and cautionary instructions, without the aid of expert testimony. We find no abuse of discretion in the trial court’s refusal to allow this witness to testify about the reliability of eyewitness identification.

Relying on Hall v. State, 403 So.2d 1319 (Fla.1981), Johnson claims that he should have been convicted of no more than second-degree murder for the deputy’s death. In that case Hall and his cohort struggled with a deputy sheriff over a pistol; the deputy was shot to death. On appeal we found the evidence insufficient to convict Hall of premeditated murder. Our reading of the instant record shows sufficient evidence of premeditation to support the conviction of first-degree murder in the deputy’s death, and we find Hall inapplicable to the instant case because the evidence here is inconsistent with any reasonable hypothesis other than premeditated murder.

Johnson next claims that the trial court improperly excused a prospective jur- or for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). After studying this prospective juror’s responses to the questions asked on voir dire, we find that she unequivocally stated her opposition to imposing the death penalty. The trial court, therefore, properly excused her.

As his final challenge to the guilt-innocence phase of the trial, Johnson claims that the charges arising from the cab driver’s death should have been severed from the remaining counts of the indictment. Florida Rule of Criminal Procedure 3.150(a) provides:

Two or more offenses which are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses, whether felonies or misdemeanors, or both, are based on the same act or transaction or on two or more connected acts or transactions.

A severance should be granted when necessary to achieve a fair determination of a defendant’s guilt or innocence. Fla.R. Crim.P. 3.152(a)(2). Granting a severance is largely a matter of discretion with a trial court, and the burden is on the movant to demonstrate an abuse of discretion. Manson v. State, 88 So.2d 272 (Fla.1956); Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975).

Johnson relies on Paul v. State, 385 So.2d 1371 (Fla.1980), where this Court adopted Judge Smith’s dissent to Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979). We find Paul distinguishable from the instant case because there the offenses occurred five weeks apart. Here, on the other hand, only hours separated the three homicides and related crimes. We do not find that a severance would have been necessary to fairly determine Johnson’s guilt or innocence in the crimes charged.

Several attacks on the sentences and sentencing phase of the trial comprise Johnson’s last points on appeal. He claims that the trial court erred in its assessment of the aggravating factors and in instructing the jury on certain aggravating factors, that the standard jury instruction precludes consideration of mitigating evidence, and that the trial court should have allowed him to waive an aggravating circumstance. We find no merit to these contentions.

In a thoughtful and well-reasoned sentencing order the trial court found the following aggravating factors: previously convicted of a capital or violent felony (all three homicide charges); felony murder (all three); avoiding arrest (Burnham); pecuniary gain (Evans); and cold, calculated, premeditated manner (all three). The court found none of the statutory mitigating circumstances applicable, but did find Johnson to have been under the influence of drugs although not to the extent of being under extreme mental or emotional disturbance or extreme duress.

We find that the evidence supports the findings in the trial court order.

Johnson challenges several of these findings which we will discuss briefly. In finding that Johnson had previously been convicted of a violent felony the trial court relied on the convictions for attempted murder in this trial. This is a proper finding under King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981), and Lucas v. State, 376 So.2d 1149 (Fla.1979). The evidence is also sufficient to support finding that Johnson killed the deputy while fleeing from a robbery. The deputy was shot only one-half hour after Beasley and only a mile and a half from the site of his death. See Griffin v. State, 414 So.2d 1025 (Fla.1982). There is also support for the court’s finding the deputy’s murder to have been in a cold, calculated, premeditated manner. We note that testimony showed that, prior to starting out for the evening, Johnson stated that he would not mind shooting people to obtain money and that the deputy was shot three times. Johnson claims that the court improperly doubled up the felony murder and pecuniary gain factors in the Evans murder, but three underlying felonies were present in that incident, i.e., robbery, arson, and kidnapping. The court, therefore, could properly find the factor of pecuniary gain. We also hold that the trial court properly found flight after commission of a robbery and for the purpose of avoiding arrest in aggravation of the deputy’s murder. Evidence shows both that Johnson robbed Beasley, the second victim, and that the deputy stopped Johnson on the road as a possible suspect.

Johnson claims the court improperly instructed the jury on the aggravating factors of heinous, atrocious, and cruel and great risk of death to many people because the evidence presented would not support finding either of those circumstances. We find no error in the instructions. The list of statutory aggravating circumstances is exclusive, and we see no reason to notify a defendant of the circumstances on which the state will rely. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). The state must prove applicable aggravating circumstances beyond a reasonable doubt. Williams v. State, 386 So.2d 538 (Fla.1980). The trial court did not find either of these factors, and Johnson suffered no prejudice from the complained-of instructions.

The list of mitigating circumstances set out in section 921.141(6), Florida Statutes (1981), contains modifying terms such as “extreme,” “significant,” “relative,’ and “substantial.” Johnson claims that these modifiers have the effect of improperly instructing the jury to disregard all mitigating evidence if the threshold defined by the limiting words is not met. As this Court has previously commented, the statutory mitigating circumstances,

when coupled with the jury’s ability to consider other elements in mitigation, provide a defendant in Florida with every opportunity to prove his or her entitlement to a sentence less than death.

Peek v. State, 395 So.2d 492, 497 (Fla.), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). Moreover, we note that the court granted Johnson’s requested instruction on the unlimited nature of the mitigating circumstances. We find no merit to this claim.

Relying on Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981), and Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984,102 S.Ct. 2258, 72 L.Ed.2d 862 (1982), Johnson claims that the trial court should have allowed him to waive the applicability of the cold, calculated, and premeditated aggravating circumstance. In Combs we stated that subsection 921.141(5)(i) “adds limitations to those elements for use in aggravation, limitations which inure to the benefit of a defendant.” 403 So.2d at 421. Mitigating circumstances inure to the benefit of a defendant and can be waived by a defendant. Maggard. Johnson reasons, therefore, that a defendant should be able to waive the aggravating factor set out in paragraph (5)(i). This reasoning, however, misses the point of the pertinent discussion in Combs. The above-quoted statement in Combs is in response to the claim that all premeditated murders will automatically start with one aggravating factor. We adopted that language to allay that fear and find no merit to the instant claim.

Finding no error, we affirm Johnson’s convictions and sentences.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla. Const.

      . Several other courts have reached the same conclusion about expert testimony in eyewitness identification: United States v. Thevis, 665 F.2d 616 (5th Cir.), cert. denied, — U.S. -, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982); United States v. Fosher, 590 F.2d 381 (1st Cir.1979); Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (App.1980); People v. Dixon, 87 Ill.App.3d 814, 43 Ill.Dec. 252, 410 N.E.2d 252 (1980); State v. Helterbridle, 301 N.W.2d 545 (Minn.1980); Nelson v. State, 362 So.2d 1017 (Fla. 3d DCA 1978).

      . We note that the trial court allowed Johnson to waive a mitigating factor (no significant history of prior criminal activity) in the instant case.


author: OVERTON, Justice. SHAW, Justice,

text:
    DEPARTMENT OF TRANSPORTATION, Petitioner, v. Sheila WEBB, et al., Respondents.
    No. 61908.
    Supreme Court of Florida.
    Sept. 1, 1983.
    Rehearing Denied Nov. 8, 1983.
    Alan E. DeSerio, James W. Anderson and John H. Beck, Gen. Counsel, Dept, of Transp., Tallahassee, for petitioner.
    Stanley Bruce Powell of Powell, Powell & Powell, Niceville, for Sheila Webb and Linda Strong.
    Paul Bernardini of LaRue & Bernardini, Daytona Beach, and Cynthia S. Tunnicliff of Macfarlane, Ferguson, Allison & Kelly, Tallahassee, for Evelyn Grant.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported as Department of Transportation v. Webb, 409 So.2d 1061 (Fla. 1st DCA 1981). We find conflict with Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), and City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), because the district court opinion appears to hold that the failure to upgrade a railroad intersection and the failure to install traffic control devices are operational-level functions which are not immune from suit under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). This holding would be incorrect under our decision in Neilson. The district court opinion also reflects that the failure to place warning signs at a railroad crossing which is known to be dangerous and the failure to maintain the railroad crossing are operational-level functions and constitute negligent, tortious conduct, immunity to which is waived by section 768.28, Florida Statutes (1977). This portion of the district court’s holding is consistent with our opinions in Commercial Carrier, Neilson, and Ralph v. City of Daytona Beach, No. 62,094 (Fla. Feb. 17, 1983).

We approve the result reached by the district court because this case was presented to the jury on the issue of the petitioner’s negligent failure to maintain the railroad crossing and failure to warn motorists of a known dangerous condition. We note that the district court relied in part on the broad language defining “planning” in Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981), which we modified in City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982).

As modified, we approve the decision of the district court.

It is so ordered.

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

ADKINS and EHRLICH, JJ., concur in result only.

SHAW, J., concurs specially with an opinion.

SHAW, Justice,

specially concurring.

I concur in the result but do not agree that “the district court opinion appears to hold that the failure to upgrade a railroad intersection and the failure to install traffic control devices are operational-level functions which are not immune from suit under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).” As I read the opinion, the district court held that DOT could not claim immunity under the label of “planning function” when, prior to the accident, DOT knew that the installed traffic control devices created an admittedly dangerous railroad crossing. On the facts of the case, the district court was simply rejecting the argument that everything is planned, therefore, everything is immune. As the district court put it, “this analysis is unhelpful because every operational activity undertaken by DOT must at some point entail planning, which would cloak the department in absolute immunity.” Department of Transportation v. Webb, 409 So.2d 1061, 1064 (Fla. 1st DCA 1982). See also Foley v. State Department of Transportation, 422 So.2d 978 (Fla. 1st DCA 1982), on this point of law, which rejected the same argument in another factual context.


author: ADKINS, Justice. McDONALD, Justice,

text:
    Richard Sherman WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 60546.
    Supreme Court of Florida.
    Sept. 8, 1983.
    Rehearing Denied Nov. 4, 1983.

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

This case is before this Court on appeal of a judgment from the Eighth Judicial Circuit, Bradford County. Williams was convicted of first-degree murder and received the death penalty. He appeals the conviction and the attendant sentence. We have jurisdiction under article V, section 3(b)(1), Florida Constitution. Both the judgment and the sentence are hereby affirmed.

Evidence at trial established the facts to follow. In the early morning of July 16, 1980, Roy Huff began delivering breakfast to the inmates on Q-wing of Florida State Prison. Huff, himself an inmate, occupied the position of “runner” and was assigned by prison officials to bring food to the various cells. As Huff prepared to hand defendant/Williams his food tray, Williams brandished a handcrafted spear, shoved the shaft through the bars, and lunged toward the man. Huff was struck in the midsection and shortly thereafter died from the stab wound.

Correctional Officer Dearing was working the midnight-8:00 a.m. shift on Q-wing the night of the slaying. Dearing watched as Huff fed cells 1 and 2. As Huff approached Williams’ cell he saw the man (Huff) fall back from the door clutching his chest. Later Dearing heard Huff state, “Bushax has stabbed me.” (Bushax is defendant’s nickname.) Dearing and Sergeant Gann reached the injured inmate whereupon Gann inquired, “You know who did it, don’t you, Huff?”, and Huff replied, “Yes sir, Bushax Williams.”

Thereafter prison inspector Edward Sands took Williams from his cell and interviewed him as a suspect in the Huff killing. Prior to any dialogue between prisoner and inspector, Williams was advised of his Miranda rights, of which he executed an effective waiver. During the interview Williams gave an account of the slaying, explained how he had fashioned the murder weapon, and told where he had disposed of the weapon after the stabbing. Following defendant’s directions, prison officials located the handcrafted spear.

At the trial in February of 1981 Williams was found guilty of first-degree murder as charged. The court then adjudged the defendant guilty and announced that the penalty phase would begin after a lunch break of two hours. Defense counsel moved for a continuance of the penalty phase in order to prepare for submission of appropriate mitigating circumstances. The trial judge said he would take the motion under advisement, but it would be well for both parties to assume that the penalty phase would begin immediately after the two-hour recess. When the court reconvened, the judge announced his ruling denying a continuance of the penalty phase.

During the ensuing penalty phase defense counsel presented no witnesses. Thereafter the jury returned a recommendation that the death penalty be imposed and a pre-sen-tence investigation was ordered by the court.

A defense motion for new trial was filed on February 26, 1981, after which defendant contacted Judge Green by letter disavowing the motion and stating his belief that defense counsel had provided ineffective representation. At the sentencing proceeding the court stated that defendant’s letter would become part of the amended motion for new trial and specifically ruled as follows:

The allegations of incompetence of counsel made by the Defendant raised prior and during trial and again reraised at the conclusion of trial, but prior to sentencing, are each considered by the Court and the allegations thereby specifically overruled and the motion denied.
My purpose in this statement is to make abundantly clear for further appellate review that the argument was preserved by the Defendant prior to the time of sentencing.

At the conclusion of the pre-sentence investigation the court found two aggravating circumstances — that defendant was under sentence of imprisonment for second-degree murder, and that he had been convicted of second-degree murder, a crime of violence. The court found no mitigating circumstances, and thereafter sentenced Williams to death by electrocution.

Williams first contends that the trial court failed to ascertain that the jury understood that its verdict must be unanimous as to “degree” as well as to “guilt”. He further argues that as a result of such failure there was “manifest confusion” on the part of the jury which deprived him of his right to a unanimous verdict in a capital case as guaranteed by both the United States and Florida Constitutions and by Florida Rule of Criminal Procedure 3.440. After thorough review” of the record we find no merit to Williams’ contentions.

The alleged confusion in the case sub judice stems from the following interchange between the trial judge and jury foreman:

THE COURT: Ladies and gentlemen, about eleven forty-three I was handed a note by Mr. Enice, which is on a pad that I instructed him to take into the jury room. The note reads:
“Does the jury have to have unanimous agreement for the degree along ...” And: then there is an abbreviation that I don’t understand.
“ ... guilt charge?”
The abbreviation is a C with a dash over it.
First question is, is that a valid communication from the jury?
JUROR: Yes.
THE COURT: The second question is, what is the abbreviation?
JUROR: With.
THE COURT: So the question is:
“Does the jury have to have unanimous agreement with the degree along with the guilt charged?”
JUROR: We found the answer.
THE COURT: You did?
JUROR: Yes, sir.
THE COURT:. Then you don’t need it answered.
JUROR: Yes, sir.
THE COURT: You may retire to deliberate further.

Here, after the court verbalized the question, “Does the jury have to have unanimous agreement with the degree along with the guilt charged?”, the jury foreman responded, “We found the answer”. The foreman expressly represented to the judge that the jury had found the answer, and that it was no longer necessary for the court to supply it. We find no evidence of “manifest confusion” emanating from this interchange. In fact, the judge showed sound judgment by not delving into the matter. For the trial judge to intervene and supply answers to questions not properly before the court would create just the “manifest confusion” which our judicial system seeks to avoid.

The unanimity and integrity of the jury’s verdict is further supported by the verdict form returned by the jury, which provided:

VERDICT

We, the jury, find the Defendant Richard Sherman Williams, guilty of murder in the first degree as charged in the indictment, so say we all.

(Emphasis added.) The record shows that after this verdict was published the jury was polled, with each juror personally accepting responsibility for the verdict. These factors alone firmly establish the jury’s understanding that its verdict must be unanimous as to degree as well as to guilt.

In addition, the jury had in its possession during deliberations a written copy of the judge’s instructions, which provided in pertinent part:

In the case of first degree murder, if you find a conviction of first degree murder it will be necessary for you to consider and recommend to the Court which of the two penalties, by a majority vote, you recommend should be imposed. The imposition of the penalty with those two choices and your recommendation lie solely with the Court.
Your verdict finding the Defendant either guilty or not guilty must be unanimous. The verdict must be the verdict of each juror, as well as of the jury as a whole.
The indictment charges the crime of: murder in the first degree, which includes, as a matter of law, the lesser crimes of:
1. not guilty;
2. guilty of murder in the first degree as charged in the indictment;
3. guilty of murder in the second degree;
4. guilty of murder in the third degree; or
5. guilty of manslaughter.

(Emphasis added.) These instructions, without question, mandate that the verdict, which contains guilt and degree, be unanimous. Moreover, these same instructions provided the correct answer to the jury’s withdrawn question, and it is logical to assume that the jury withdrew its question after referring to the instructions.

In review, the jury withdrew its question, returned a verdict explicitly stating that there was unanimous agreement that Williams was guilty of murder in the first-degree, and was subsequently polled as to its decision. These measures, when viewed in total, more than dispel all traces of the alleged jury confusion.

Williams also challenges the sentence, contending that the trial court abused its discretion by refusing to grant a continuance of the penalty phase when the defense counsel represented that he was unprepared to present any evidence of mitigating circumstances.

The granting or denial of a motion for continuance is within the discretion of the trial court. Durean v. State, 350 So.2d 525 (Fla. 3d DCA 1977); Mills v. State, 280 So.2d 35 (Fla. 3d DCA 1973); Douglas v. State, 216 So.2d 82 (Fla. 3d DCA 1968). This principle remains intact even in situations where the death penalty is of issue. See Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). This Court in Cooper announced:

While death penalty cases command our closest scrutiny, it is still the obligation of an appellate court to review with caution the exercise of experienced discretion by a trial judge in matters such as a motion for a continuance.

336 So.2d at 1138 (emphasis added). We find no evidence that the trial judge abused the above mentioned discretion. Appellant moved for a continuance at the conclusion of the guilt phase of the trial. The trial judge’s decision to deny the motion was not made in haste. The decision to deny was rendered subsequent to a two-hour recess — a period of time sufficient to review the relevant circumstances surrounding appellant’s motion. In our review of the record we find that appellant’s counsel had been aware, since his appointment eleven weeks prior, that this was a case in which the death penalty would be sought. Eleven weeks’ notice is adequate time to prepare for both the trial and sentencing phases of this litigation. See Valle v. State, 394 So.2d 1004, 1008 (Fla.1981). We further find that appellant, in presenting his motion for continuance, never offered reasons for his unpreparedness. Likewise he failed to demonstrate due diligence in locating mitigating witnesses and never alleged that the motion was made in good faith and not for delay only. Hence the trial judge acted within his bounds when he refused to grant appellant’s motion for continuance. See Moore v. State, 59 Fla. 23, 52 So. 971 (1910).

Moreover, and contra to what appellant contends, the denial of the continuance did not prevent the trial court from familiarizing itself with potentially applicable mitigating circumstances. Immediately following the penalty phase of the trial, the trial judge ordered a presentence investigation. After reviewing the presentence report the trial court issued its judgment and sentence order which contained the following:

JUDGMENT AND SENTENCE

The defendant, Richard Sherman Williams, is an inmate at Florida State Prison at Starke, serving a sentence for second degree murder. Roy Huff was also an inmate at Florida State Prison. While Roy Huff was making rounds as a “runaround” in the cellblock in which Richard Sherman Williams was contained, Richard Sherman Williams made a spear out of a homemade knife and a broom handle and proceeded to stab Roy Huff through the door of the cell while Roy Huff was attempting to serve Richard Sherman Williams a meal. Roy Huff died of the stab wounds within a few minutes after they were inflicted.
The case was tried before a jury and a verdict of first degree murder was returned; subsequently the jury recommended death.
The Court finds the following statutory aggravating factors apply in this case:
1. The defendant was under sentence of imprisonment — for murder — when this crime was committed.
2. The defendant had previously been convicted of second degree murder — a crime of violence.
There are no other applicable statutory aggravating factors.
There are no applicable mitigating factors.

(Emphasis added.)

Only after thoroughly familiarizing himself with the presentence investigation report did the trial judge determine that there were no applicable mitigating factors. Moreover, the record clearly substantiates the trial judge’s finding of the two statutory aggravating circumstances pursuant to sections 921.141(5)(a) and (b), Florida Statutes (1981), respectively. It is undisputed that, at the time of the slaying, the appellant was incarcerated at Florida State Prison from a conviction of second degree murder — a crime of violence.

Accordingly, after careful consideration of the record, including a thorough study of the sentence order, our judgment is that death is a proper sentence.

Williams further submits that in refusing to grant the continuance the trial court deprived him of his right to effective assistance of counsel. We disagree.

As a general rule, a claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal. 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); State v. Barber, 301 So.2d 7 (Fla.1974); Pinder v. State, 421 So.2d 778 (Fla. 5th DCA 1982); Kidwell v. State, 394 So.2d 526 (Fla. 3d DCA 1981); Valero v. State, 393 So.2d 1197 (Fla. 3d DCA 1981). We find no reason to deviate now from this principle.

Here, the appellant improperly attempted to raise the question of ineffective assistance of counsel in an amended motion for a new trial. In so doing, Williams failed to provide the trial court with sworn to allegations necessary to prevent unfounded complaints in motions for post-conviction relief. While the trial judge received Williams’ letter alleging ineffective assistance of counsel prior to sentencing and stated that defendant’s argument would be preserved for further appellate review, this, in itself, does not warrant our present consideration of the issue. “[RJelief cannot be had by appeal until issues of fact have been first resolved in the trial court.” Pinder, 421 So.2d at 779 (emphasis added). After thorough review of the record we find no evidence that the ineffective assistance of counsel allegation was sufficiently resolved so as to warrant our review. At most, defendant’s letter presented “bald assertions” totally devoid of factual support. United States v. Rodriguez, 582 F.2d 1015 (5th Cir.1978). Moreover, neither the state nor the court-appointed trial counsels were granted the opportunity to refute the un-sworn ineffective assistance of counsel allegation. United States v. Prince, 456 F.2d 1070 (5th Cir.1972); compare, United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, Meinster v. United States, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). For the above reasons, we find that Williams’ claim of ineffective assistance of counsel is not, at present time, properly before this Court.

Accordingly, both the conviction and the attendant sentence are affirmed without prejudice to the right of Williams to raise the issue of ineffective assistance of counsel in a proper proceeding pursuant to Florida Rule of Criminal Procedure 3.850.

It is so ordered.

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

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

McDONALD, Justice,

concurring in part and dissenting in part.

I agree with the affirmance of Williams’ conviction but conclude that his sentence should be vacated and a new sentencing proceeding ordered. It appears on the face of the record that Williams’ trial counsel was totally unprepared for the sentencing proceedings and thus Williams was not afforded his right of effective assistance of counsel at this critical proceeding. I would not await a collateral 3.850 motion since no further evidence is needed to establish these facts.

OVERTON, J., concurs.


text:
    Theodore HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 61343.
    Supreme Court of Florida.
    Sept. 8, 1983.
    Rehearing Denied Nov. 8, 1983.

      Harold Long, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

The appellant, Theodore Harris, was convicted of first-degree murder, burglary with an assault, and robbery. The trial judge imposed the death sentence for the murder conviction in accordance with the jury’s advisory recommendation and imposed sentences of one hundred years each for the burglary and robbery convictions. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions, the death sentence, and the sentences of imprisonment.

A full statement of the facts in this case, including the circumstances surrounding Harris’s confession, is necessary to our discussion of the issues raised by Harris in this appeal. The victim, a seventy-three-year-old woman, was found dead in her home on the morning of Sunday, March 22, 1981. She had died during the night from multiple stab wounds and wounds inflicted by a blunt instrument. A knife, a bloody rock, and a blood-covered wooden chair were found in the house. The autopsy revealed that the victim had suffered numerous defensive wounds on her arms, hands, and shoulders. Blood was spattered over the walls and furnishings of the bedroom, living room, and kitchen, indicating that the victim had tried to escape her assailant while she was being stabbed and beaten.

While police officers were investigating at the scene of the murder, they were approached by Lionel Cook, who indicated that he suspected that Harris might be involved in the crime. At the time of the murder, Harris was living with Cook and his wife, the victim’s granddaughter, in the same general neighborhood as the victim. Harris knew the victim, having attended a dinner at her house on a previous occasion, and having been previously married to Mrs. Cook’s sister. Cook told the police that Harris had taken his wife’s car late on Saturday night and that he had not returned it. Cook said that one of the staff of Jackson Memorial Hospital called him early Sunday morning to tell him that Harris had been hospitalized with a severely lacerated hand and that, when he went to the hospital to pick up his wife’s car, he saw Harris and took Harris’s personal effects from the hospital. He turned the personal effects over to the police on Sunday evening, along with two bloody towels he had found in his wife’s car.

The police interviewed Harris in the hospital late Sunday night. At this interview, Harris stated that his hand had been cut the night before when two men attacked him in the parking lot of a bar and tried to steal a gold chain from around his neck. He explained that, in trying to defend himself against a knife attack, he grabbed the blade to deflect it from his body.

The police investigated further, focusing on Harris as a suspect. They examined the parking lot where Harris claimed he had been attacked, but they did not discover any trace of blood or any evidence of a scuffle. The chief investigating officer talked with the doctor who treated Harris’s hand, and it was the doctor’s opinion that the wounds could have been caused by the hand sliding down over the handle of a knife onto the blade while Harris was wielding the knife in a stabbing motion. Laboratory analysis showed that two types of blood were present in the victim’s house, type A and type 0. The victim had type 0 blood; Harris’s blood was type A, and it had further characteristics that made it consistent with the type A blood found at the scene. Four partial fingerprints were found in the victim’s house, but none was identified as belonging to Harris. Analysis of Harris’s clothing revealed the presence of type A blood, but none of the blood on these articles of clothing was ever identified as being of the victim’s blood type.

The police obtained a warrant on April 7 and arrested Harris on April 14, approximately three weeks after the murder. At the time of his arrest, Harris had a cast on his right forearm that interfered with his wrists being handcuffed behind his back, as police regulations required, so the police handcuffed his right elbow to his left wrist behind his back. Harris was interrogated at the police station from 1:00 p.m. to 7:00 p.m. During this time, he was handcuffed and sat in an aluminum chair. He did not receive either food or drink during the interrogation. The investigating officers testified that Harris was calm and matter-of-fact about everything and made no complaints about the handcuffs or his treatment. He consistently denied his involvement in this murder until about 7:00 p.m., when he said, “All right, I’ll tell you the truth.” After giving an oral statement, Harris signed a written confession which was introduced into evidence at trial.

The evidence presented at trial reflected three unexplained circumstances. First, police had discovered a brown paper bag in the victim’s bedroom which held a plastic bag containing four hundred dollars in cash. Type A blood was found on the brown bag, but Harris said that he didn’t find the bag and that, if he had, he would have taken the money. The victim’s empty wallet and a knife were found in the victim’s kitchen, but Harris, in his oral statement to one of the investigating officers, denied going into that room. Finally, Harris stated in his written confession that he left the victim’s house through the front door although the police had found an open bedroom window from which the screen had been removed, with smears of blood on the outside of the house under the window.

Harris did not testify nor did the defense call any witnesses in the trial phase of the proceeding. The case was presented to the jury by defense counsel on the theory that the confession should not be believed because it was involuntary and that, without the confession, the state had failed to establish beyond a reasonable doubt that Harris had committed this offense. At the charge conference, defense counsel requested that no instructions be given to the jury regarding lesser included offenses for any of the crimes charged. The trial .court, before agreeing not to include the required lesser-included-offense instructions, questioned Harris and obtained an unambiguous waiver from Harris of his right to have these instructions given. The jury returned a verdict of guilty to all counts as charged.

In the sentencing phase, the state presented medical testimony concerning the nature and extent of the injuries sustained by the victim, as well as expert opinion testimony regarding the pain experienced by the victim as a result of her wounds. Additional testimony was presented by the state to establish that Harris had previously been convicted of robbery and to confirm that Harris was on parole at the time of the murder. Harris presented no evidence in mitigation or rebuttal during the penalty phase. The jury returned a verdict recommending the imposition of the death sentence.

The trial judge imposed the death sentence, finding the following aggravating circumstances: (1) that Harris was under a sentence of imprisonment when he committed the murder; (2) that he had previously been convicted of a felony involving violence; (3) that the murder was committed while Harris was engaged in committing a robbery or burglary; (4) that the murder was especially heinous, atrocious, and cruel; and (5) that the murder was committed in a cold, calculated, and premeditated manner. The trial judge found a “complete absence” of any mitigating factors. The trial judge also sentenced Harris to one hundred years imprisonment for armed burglary with an assault and one hundred years for robbery with a deadly weapon, with the sentences to be served consecutively.

Trial Phase

Appellant contends that his convictions should be reversed because: (1) his confession should have been suppressed on the grounds that it resulted from an unlawful arrest and that it was involuntary; (2) the prosecutor made improper comments during closing argument concerning appellant’s silence at trial; and (3) the trial judge erroneously denied a requested jury instruction on inculpatory statements and failed to properly instruct the jury on necessarily included lesser offenses to the crimes charged. For the reasons stated, we reject each of these contentions.

Admissibility oí the Confession

Appellant first contends that his confession should have been suppressed because it resulted from his unlawful arrest and was part of an uninterrupted chain of events following that arrest. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In attacking his arrest on the basis of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), appellant asserts that the arrest warrant was not supported by probable cause because the sworn affidavit upon which the warrant was issued contained factual misrepresentations and inaccuracies. At an evidentiary pre-trial suppression hearing, these allegedly incorrect factual statements of the police-officer affiant were presented to the trial court, which found

that there was no deliberate falsity or reckless disregard by the investigating police agencies. Here, at best, there was a possible negligence or innocent mistake concerning a blood typing and evidence on that regard.
Moreover, assuming arguendo, there even was a falsity or disregard, there remains sufficient contents within the warrant affidavit to support a finding of probable cause.

We agree with the trial judge and find that he scrupulously adhered to the requirements of Franks, as well as to the dictates of this Court in Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980), in concluding that the arrest was supported by probable cause and that, even assuming there was falsity, the remaining contents of the affidavit were legally sufficient to support the arrest warrant. Since the arrest was lawful, there is no need to consider whether the causal chain between the arrest and the confession had been broken.

Appellant next contends that the admitted facts in this record establish that the confession was involuntary. At the suppression hearing, appellant testified to his version of the police interrogation following his arrest. He claimed that he was questioned against his will for over six hours; that he was handcuffed elbow-to-wrist the entire time; that he was refused food and drink; that he was not allowed to go to the bathroom; and that he was subjected to emotional and physical abuse. The police officers in charge of the investigation testified that appellant was questioned for six hours in a small room in the police station and that he was handcuffed and seated in an aluminum chair. The officers denied that the appellant had been mistreated in any way and testified affirmatively that he did not complain of discomfort or of the circumstances of his interrogation. The stenographer who took the confession and reduced it to writing for appellant’s signature testified that she did not see or hear any abuse of appellant or see any evidence of such abuse. Appellant signed the written confession after pointing out and initialing one correction.

The trial court made a detailed finding of fact in its order, addressing each of appellant’s complaints. The court concluded that appellant was not beaten, threatened, or coerced in any manner and that the confession was freely and voluntarily made. Appellant did not testify at trial, but substantially all of the facts concerning the volun-tariness of the confession presented during the hearing on the motion to suppress were presented to the jury through the state’s witnesses. Even though the police procedure utilized in appellant’s interrogation could have destroyed the admissibility of this confession, we conclude on the record as a whole that there is substantial competent evidence to affirm the trial judge and the jury in their conclusion that this confession was voluntary.

Prosecutor’s Comments

Appellant asserts that the prosecutor improperly commented during closing argument on appellant’s failure to testify at trial by stating:

I submit to you this was a voluntary statement taken after a considerable period of time in which he sat there and remained the same immobile, unemotional self as he has this entire trial.

We acknowledge the established law that comments on the accused’s failure to testify violate the privilege against self-incrimination of the fifth amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We have recognized in Florida that such a comment requires the reversal of a conviction and that the harmless error rule does not apply. David v. State, 369 So.2d 943 (Fla.1979); Trafficante v. State, 92 So.2d 811 (Fla.1957). See also Fla.R.Crim.P. 3.250 (formerly § 918.09, Fla. Stat. (1969)). We find, however, that these principles are inapplicable to the circumstances of this case, and we reject the argument that the quoted comments were improper.

A full reading of the prosecutor’s argument establishes without question that he was not referring to appellant’s failure to testify at trial. The prosecutor, in fact, was addressing the critical issue of whether appellant’s confession was voluntary and, in doing so, was commenting on appellant’s demeanor at the time the confession was made. To understand the challenged statement, it is necessary to review the entire argument on this issue. In the transcript, the argument of the prosecutor reads as follows:

You have got to be concerned about the voluntariness of the statement; whether it was freely and voluntarily made in order to rely on the statement.
Again, you have other evidence to work with, but we are looking exclusively at the statement here.
There is nothing in the statement that indicates that it is not freely and voluntarily given. You can look at the photographs that have been introduced of the Defendant immediately after post-statement taking and you can see that the photographs indicate a man who looks exactly the same except for, perhaps, some minor change in the combing of his hair.
There are no injuries on Mr. Harris there. They didn’t beat him or threaten him.
If they had beat or threatened him, the statement that he would have given would have tracked exactly what Par-menter wanted him to say, but it didn’t.
How can you say the statement wasn’t voluntary when the man goes through the statement and he initials every page of the statement and he makes certain corrections on the statement. He says certain things in the statement which indicate that he is expressing himself in a narrative sort of way and he is asked questions such as: What was your purpose of going into the house or what were your activities inside the house, and certainly those are broad and general enough questions for the Defendant to be able to respond to. These are his words.
I submit to you this was a voluntary statement taken after a considerable period of time in which he sat there and remained the same immobile, unemotional self as he has this entire trial.
This is the type of person he is. This is the type of individual that could do something like he did in this case to Essie Daniels.
... There is nothing in this statement which would indicate that statement was anything but freely and voluntarily given.

(Emphasis added.) It is obvious that the prosecutor was describing to the jury the appellant’s demeanor during his interrogation by comparing it to appellant’s demean- or as he appeared before them at the trial. We find that this comment does not violate appellant’s fifth amendment rights nor does it violate the case law or the rules of procedure of this state.

Jury Instructions

Appellant argues that the trial judge improperly refused to grant his request that the following jury instruction on inculpatory statements be given:

Any confession given by a Defendant should be acted upon by both the Court and the jury with great caution, especially where the party is under arrest when the confession is made.

The trial judge denied the request for this instruction on the basis that the standard jury instruction on an accused’s out-of-court statements adequately covered the matter. The standard jury instruction, as given in the trial, reads as follows:

A statement claimed to have been made outside of this Court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made; therefore, you must determine from the evidence that the Defendant’s alleged statement was knowingly, voluntarily and freely made.
In making this determination, you should consider the total circumstances including by [sic] not limited to:
One: Whether when the Defendant made the statement he had been threatened in order to get him to make it, and two, whether anyone had promised him anything in order to get him to make it.
If you conclude the Defendant’s out of Court statement was not freely and voluntarily made, you should disregard it.

Fla.Std.Jury Instr. (Crim.) 2.04(e). We fully agree with the trial judge that the standard jury instruction adequately covers the subject. Further, the record reflects that appellant’s counsel did not object to the instruction as given, and, because no objection was made in accordance with Florida Rule of Criminal Procedure 3.390(d), we find that appellant waived his right to challenge the instruction on appeal.

Appellant next contends that the trial judge committed reversible error when he failed to give to the jury the mandatory instructions on the necessarily included lesser offenses of first-degree murder, burglary, and robbery. Appellant argues that our holdings in Brown v. State, 206 So.2d 377 (Fla.1968), State v. Washington, 268 So.2d 901 (Fla.1972), and Rayner v. State, 273 So.2d 759 (Fla.1973), mandate a trial judge to give jury instructions on all necessarily included lesser offenses. He maintains that the trial judge did not have the discretion to grant defense counsel’s request that these instructions not be given or to accept appellant’s waiver of the instructions.

The record in this cause reflects that appellant, through his counsel, made a specific request that no instructions on necessarily included lesser offenses be given. The trial judge took meticulous care to make sure that appellant knew of this request and had appellant personally make an express oral waiver of his right to these instructions. The colloquy between the trial judge and appellant’s counsel reflects the following:

MR. WILLIAMS: For the record, pursuant to conversations with our client, we have decided and at this time we would be asking for no lessers and we ask that it be sent to the jury as charged.
THE COURT: So the record is clear, you are not asking for any lessers under the first-degree murder, any lessers under burglary nor any lesser under the armed robbery charge?
MR. WILLIAMS: No.
THE COURT: Is that correct?
MR. WILLIAMS: Yes.
THE COURT: Is it the Defendant’s position, notwithstanding the fact that second, third and manslaughter are not going to be given as lessers, that even— that there should be no explanation of lesser included under any circumstances? Do you agree with that?
MR. WILLIAMS: We agree with that, Judge.
THE COURT: Since this is unusual, I want to cover one thing for the record.
The Defendant is agreeing and stipulating that they are not requesting any lesser includeds; right?
MR. WILLIAMS: That’s correct.
The colloquy between the trial judge and appellant relating to his waiver of the instructions consisted of the following:
THE COURT: Mr. Harris, have your lawyers explained to you what a lesser included crime is?
THE DEFENDANT: Yes.
THE COURT: For example, on the crime of murder, you understand the penalty is either death or life and there are certain lesser included crimes which include second-degree murder which is punishable by probation to life imprisonment; third-degree, probation to 15 years, and manslaughter, 15 years.
Do you understand that? Your attorneys have indicated they do not request any lesser included crimes.
THE DEFENDANT: Yes.
THE COURT: Is that your choice?
THE DEFENDANT: Yes, sir.

In Brown v. State, this Court construed an existing statute and held that “a trial judge is required to instruct on necessarily included offenses because the law, particularly § 919.16, requires it.” 206 So.2d at 382. This Court has consistently held that, upon a proper request, a trial judge must give jury instructions on necessarily included lesser offenses, that a refusal of such a request constitutes fundamental error when properly preserved for appeal by timely objection under Florida Rule of Criminal Procedure 3.390(d), and that the harmless error rule does not apply. See, e.g., Reddick v. State, 394 So.2d 417 (Fla.1981); State v. Abreau, 363 So.2d 1063 (Fla.1978); State v. Thomas, 362 So.2d 1348 (Fla.1978); Lomax v. State, 345 So.2d 719 (Fla.1977).

In State v. Washington, the accused’s counsel objected to the trial judge giving the jury the instructions on necessarily included lesser offenses but the trial court gave them anyway. The district court held that the trial judge should not have given the instructions over the accused’s objections. This Court reversed, finding that “[t]he trial judge in the instant case ... properly instructed the jury as to lesser included offenses.” 268 So.2d at 902. This holding was reaffirmed in Rayner v. State, 273 So.2d 759 (Fla.1973), and in Williams v. State, 285 So.2d 13 (Fla.1973). In none of these cases did the defendant expressly waive his right to have such instructions given.

Our decisions holding that a defendant is entitled to have the jury instructed on all necessarily included lesser offenses are consistent with the holdings of the federal courts. For instance, in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the United States Supreme Court held that a state cannot prohibit the giving of lesser-included-offense instructions in a death case without violating the United States Constitution. This procedural right to have instructions on necessarily included lesser offenses given to the jury does not mean, however, that a defendant may not waive his right just as he may expressly waive his right to a jury trial. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Davis v. State, 159 Fla. 838, 32 So.2d 827 (1947); Fla.R.Crim.P. 3.260. But, for an effective waiver, there must be more than just a request from counsel that these instructions not be given. We conclude that there must be an express waiver of the right to these instructions by the defendant, and the record must refíect that it was knowingly and intelligently made.

We hold that, upon the facts in this case, appellant knowingly and intelligently waived his right to instructions on necessarily included lesser offenses, and he cannot now argue that the trial judge should have given the instructions.

Penalty Phase

Regarding the penalty phase, appellant contends (1) that the prosecution made an improper comment in his closing argument, and (2) that the trial judge improperly applied two aggravating circumstances.

Appellant argues that the jury’s death sentence recommendation was tainted by an improper comment of the prosecution during closing argument in the sentencing hearing, when the prosecutor stated:

The Defense may tell you, Well, 25 years is a long time, 25 years without eligibility for parole, but I can tell you this: That in 25 years this 27 year old Defendant will be 52 years old. He will walk out of prison as he walked out of prison before.

Defense counsel objected, and the trial judge sustained the objection and cautioned the jury to disregard the comment. Defense counsel also made a motion for a mistrial, which was denied by the trial judge. Appellant argues that, notwithstanding the cautionary instruction, the jury was improperly influenced by the prosecutor’s inference that, unless the jury recommended the death sentence, appellant would be released from prison in twenty-five years. We reject this contention and find that the comment expresses not much more than what is in the statute itself and in the instructions explaining to the jury the alternatives it has in advising the court of the appropriate sentence.

The comment in this case is not at all similar to the language we condemned in Teffeteller v. State, - So.2d - No. 60,337 (Fla. Aug. 25, 1983). In Teffeteller, the prosecutor gave a lengthy and explicit lecture to the jury on the consequences of a life sentence for the defendant in that case and also repeatedly told the jury that the defendant would kill again if he was ever released from prison. We found that this type of comment was “inexcusable prosecu-torial overkill” which mandated a new sentencing hearing before a new jury. Although we agree with the trial judge in the instant ease that the prosecutor’s comment should not have been made because it was not a fair comment either in rebuttal or upon any óf the aggravating or mitigating factors, we also agree that it was not so prejudicial as to require a mistrial. In particular, we note that the comment in the instant case contained no assertion that appellant would kill again and no lengthy lecture to the jury on the consequences of a life sentence for this defendant.

The trial judge, finding five aggravating and no mitigating circumstances, agreed with the jury that the death sentence should be imposed. Appellant asserts that the trial judge improperly found (1) that the murder was heinous, atrocious, and cruel, and (2) that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. We find that the record clearly justifies a finding that this murder was heinous, atrocious, and cruel. We must, however, agree that the state failed to establish beyond a reasonable doubt that this murder met the requirements of having been committed in a cold, calculated, and premeditated manner, as we have defined this aggravating circumstance. This aggravating circumstance was not, in our view, intended by the legislature to apply to all premeditated-murder cases. See Bolender v. State, 422 So.2d 833 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983); Mann v. State, 420 So.2d 578 (Fla.1982); McCray v. State, 416 So.2d 804 (Fla.1982); Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). In this instance the state presented no evidence that this murder was planned and, in fact, the instruments of the death were all from the victim’s premises. The improper finding of this aggravating circumstance does not, however, require a new sentencing hearing since there are still four properly-applied aggravating circumstances and no mitigating circumstances. See Elledge v. State, 346 So.2d 998 (Fla.1977).

For the reasons expressed, we find the imposition of the death sentence appropriate in this cause. The convictions and sentences are affirmed.

It is so ordered.

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

      . During direct examination by the state attorney, Detective Parmenter testified to the following:
      Q Would you describe the position — the posture of the Defendant during this entire process while you and Detective Turner were taking turns talking to him and then leaving the room and then both going in, both going out? What was he doing that entire length of time?
      A He always sat in the same chair.
      Q During any of that time period that we’re going to be covering here, did the Defendant ever complain to you of discomfort?
      A No.
      Q Did he ever complain about his hand?
      A No.
      Q Did he ever ask for anything?
      A No.
      Q Did he ever make any special requests?
      A No.
      Q Would you describe his demeanor during this period of time when you and Detective Turner would ask the questions and one or both leave the room?
      A It was the same as every time that I had ever talked to him. He was totally calm. Nothing seemed to bother him.
      Q For how long a period did this mode of interviewing the Defendant continue prior to the time that he gave any additional statement with respect to this case?
      A The entire time from when he first walked in the office until when he eventually changed the story again was six hours.
      Q When did the Defendant advise you he was going to change his story?
      A At 7:00 P.M.
      Q Would you relate to the jury exactly what, if anything, preceded the Defendant determining that he was going to tell you another story, give you another story?
      A The same type of questioning there, when was he going to tell us the truth, you know, why was he lying, and he says, “All right, I’ll tell you the truth.”

      . The text of Harris’s confession is as follows:
      Q (By Detective Parmenter) For the record, would you state your full name?
      A Theodore Christopher Harris.
      Q And your date of birth?
      A September 14, 1954.
      Q What is your address?
      A 1862 West 27th Street.
      Q Are you working presently?
      A No, I’m not.
      Q How far did you go in school?
      A Eleventh grade.
      Q Can you read and write English?
      A Yes.
      Q Do you understand the way I’m talking to you right now?
      A Yes.
      Q Are you under the influence of any narcotics, medication or alcoholic beverage?
      A No, sir.
      Q Do you know of any reason why you cannot answer my questions intelligently?
      A No, sir.
      Q Do you recognize this form I’m showing you right now?
      A Yes.
      Q Is this the Advice of Constitutional Rights Before Interview that I read to you earlier?
      A Yes.
      Q I’m going to go over this now, and when I ask you questions, you answer, okay?
      A Yes.
      Q “You have the right to remain silent. You need not talk to me or answer my questions if you do not wish to do so.”
      Do you understand?
      A Yes.
      Q “Should you talk to me, anything which you say can and will be introduced into evidence in court against you.”

        Do you understand?
      A Yes.
      Q “If you want an attorney to represent you at this time or at any time during questioning, you are entitled to such counsel.”
      Do you understand?
      A Yes.
      Q “If you cannot afford an attorney and so desire, one will be provided without charge.”
      Do you understand?
      A Yes.
      Q “Do you fully understand the above statement of your rights?”
      A Yes.
      Q “Are you willing to answer my questions without the presence of an attorney at this time?”
      A Yes.
      Q “This statement is signed of my own free will, without any threats or promises having been made to me.”
      And there is a signature there. Is that your signature?
      A Yes.
      Q And the date is 4-14-81.
      A Yes.
      Q And the time is 1:09 P.M.
      A Yes.
      Q Did you write that there?
      A Yes.
      Q And it is witnessed by myself, John Par-menter, and Detective Roosevelt Turner.
      A Yes.
      Q Calling your attention to the evening of April [sic] 21, 1981, which was a Saturday night, where were you living at that time?
      A 2501 N.W. 158th Street.
      Q Is that in Miami?
      A Yes.
      Q And who were you living with?
      A Lionel and Sarah Cook (phonetically).
      Q On that eveing [sic], at approximately 11:00 P.M., where were you?
      A Walking the streets.
      Q Did you have an occasion to come by the address located at 14420 N.W. 21st Court, the home of Essie Daniels?
      A Excuse me. What you mean by “occasion”?
      Q Did you, that evening, stop by a house located at that address?
      A Yes.
      Q Did you know the person who lives there?
      A Yes.
      Q Did you know that person by name?
      A No.
      Q How did you know that person?
      A She was Sarah’s grandmother.
      Q Had you been to that house previously?
      A Yes.
      Q For what purpose?
      A To eat there.
      Q On this night, did you approach the house?
      A Yes.
      Q Whereabouts did you approach the house at?
      A The front door.
      Q Did you notice anything in particular about the front door?
      A It was open.
      Q Were there lights on in the house?
      A In the living room.
      Q What did you do when you noticed the door was open?
      A Went in.
      Q What was your purpose in going inside?
      A Getting some money.
      Q When you were inside the house, did you observe the person who lived there?
      A Yes.
      Q And where was she?
      A Coming out the kitchen.
      Q Can you recall what she was wearing?
      A No, but on the picture she had a gown.
      Q Did she have anything in her hands?
      A Yes, a knife.
      Q Did she say anything to you or you to her?
      A No.
      Q What action did she take?
      A She cut me.
      Q How did she go about cutting you?
      A Swinging the knife.
      Q Were you aware of how many times you were cut?
      A No.
      Q As a result of her cutting you, what did you do?
      A I took the knife from her.
      Q Once you took the knife from her, what did you do with it?
      A Started hitting her with it.
      Q Were you stabbing her?
      A Yes.
      Q Whereabouts on her body?
      A Anywhere I could.
      Q Are you aware of how many times on that night you stabbed her?
      A No.
      Q Did she fall down?
      A Yes.
      Q Did you continue stabbing her?
      A Yes.
      Q What did you do next?
      A Emptied her pocketbook on the bed.
      Q Where was this bed located in the house?
      A In the back.
      Q Once you emptied the pocketbook on the bed, what did you do?
      A Took the money.
      Q Do you know how much money you picked up?
      A It was several bills, fives, tens, and ones.
      Q And where did you put this money?
      A In my pocket.
      Q Were you bleeding from the hand that was cut during this time?
      A Yes.
      Q Are you aware of any of your other actions in that house that night?

        A No, because I came back out the front door—
      Q Are you aware of whether you actually did have any actions in this house or you just can’t remember?
      A I can’t remember.
      Q Do you recall leaving by the front door?
      A Yes.
      Q And what did you do then?
      A Went to the house.
      Q When you got to the house, did you come in contact with any other person?
      A No.
      Q Have you discussed your involvement in this murder with any other person?
      A No, I haven’t.
      Q Did you have an occasion to leave the City of Miami after this murder?
      A When I was in the hospital?
      Q Did you leave Miami sometime after this murder?
      A Yes.
      Q And where did you go?
      A Jacksonville.
      Q What was your purpose in going to Jacksonville?
      A I didn’t have nowhere to stay down here.
      Q Are you aware that you are under arrest for first degree murder, robbery and burglary at this time?
      A Yes.
      Q Has everything that you have stated been true and correct to the best of your knowledge?
      A Yes.
      Q Has anyone threatened or coerced you in any way to give this statement?
      A No.
      Q Have you given this statement freely and voluntarily?
      A Yes.
      DETECTIVE PARMENTER: Thank you.

      . We emphasize that the Brown categories of lesser included offenses were substantially modified by a series of decisions approving a schedule of lesser included offenses and amending Florida Rules of Criminal Procedure 3.490 and 3.510 relating to jury instructions, effective October 1, 1981, after the trial in this cause. See In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, 431 So.2d 594 (Fla.1981); In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 599 (Fla.1981); and In Re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981). We note that the necessarily included lesser offenses of first-degree murder are second-degree murder and manslaughter.
      Section 919.16, Florida Statutes (1965), was repealed by section 180, chapter 70-339, Laws of Florida. The contents of this statute were adopted in 1967 as Florida Rule of Criminal Procedure 3.510, which was one of the rules amended effective October 1, 1981.