author: BOYD, J.

text:
    Terry Melvin SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 57510.
    Supreme Court of Florida.
    Nov. 3, 1983.
    Rehearing Denied Jan. 19, 1984.

      Richard L. Jorandby, Public Defender and Craig S. Barnard, Chief Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and James Dickson Crock, Mark C. Menser and Richard B. Martell, Asst. Attys. Gen., Daytona Beach, for appellee.
   BOYD, J.

This case is an appeal from judgments of conviction for first-degree murder and robbery and a sentence of death. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const.

Terry Melvin Sims was convicted for the first-degree murder of George Pfeil, an off-duty deputy sheriff who entered a pharmacy while it was being robbed by Sims and three other men. Two of these other participants, Curtis Baldree and B.B. Hal-sell, were the state’s chief witnesses. They testified that' Sims and Baldree armed themselves with pistols and entered the pharmacy, while Halsell and the fourth participant, Gene Robinson, waited in a car a short distance away. Baldree said that he went to the back of the store to rob the pharmacist while Sims stayed at the front of the store watching the door. Sims ordered the customers and employees to the back of the store and into the bathroom. When Pfeil came into the store he and Sims exchanged gunfire. Pfeil was shot twice and Sims was wounded in the hip. Sims and Baldree escaped the scene and later joined their accomplices. The four men then departed the area.

This account of the robbery and the shooting was confirmed by pharmacist Robert Duncan, Duncan’s wife and daughter both of whom worked at the store, and two customers who identified appellant. One of the customers, William Guggenheim, testified that he tried to leave the store when he saw a man pointing a gun at the pharmacist. He was stopped by Sims who took his wallet. Guggenheim said he then saw Sims shoot a man who was entering through the front door.

The main theory of defense was mistaken identity. The defense attempted to discredit Baldree and Halsell on the basis of their bad character, drug addiction, criminal records, and the plea arrangements between them and the state. The defense attacked the identification testimony of one of the customers as the product of a suggestive photographic line-up and questioned the testimony of Guggenheim on the basis of his earlier failure to choose appellant from a photographic line-up. The defense then presented evidence of appellant’s resemblance to another individual said to be a frequent criminal associate of Baldree and Halsell.

The jury returned verdicts of guilty of first-degree murder and robbery. At the sentencing phase, the state presented a certified copy of a 1971 Orange County conviction for assault with intent to rob. The defense presented witnesses who testified to appellant’s good character and difficult background circumstances. The jury recommended death. Finding several aggravating circumstances and no mitigating circumstances, the trial judge adopted this recommendation.

Appellant’s first point on appeal is that he was denied his sixth amendment right to cross-examine a witness when the trial court curtailed defense counsel’s cross-examination of Baldree. He relies on Coxwell v. State, 361 So.2d 148 (Fla.1978). The asserted error occurred when defense counsel began questioning Baldree about the individual whom appellant was said to resemble. We do not find that the court’s ruling was a curtailment of cross-examination requiring reversal under Coxwell v. State. Here the defense was allowed extensive cross-examination of the witness and the state’s objection and the court’s ruling thereon came only after the defense went into matters beyond the scope of Bal-dree’s direct testimony. The defense did not ask for an opportunity to make a proffer to show the relevance of the information it was seeking to bring out. We find no error in the judge’s ruling.

Next appellant argues that the trial judge should have granted his motion for mistrial when a witness mentioned using appellant’s “mug shot” in a photographic display. Since these words were used by a defense witness and did not specifically refer to a prior conviction, we find that this vague reference to other possible criminal activity was not so prejudicial as to require a new trial. See Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981).

Appellant also claims the trial judge erred in excluding from evidence documents corroborative of a defense witness’s testimony. Since the documents were superfluous to the witness’s testimony and were not relevant to a material issue of fact, we find this point to be without merit.

Next appellant argues that the prosecutor made several improper comments during his closing argument. Since appellant failed to object at the trial, he has failed to preserve this point for appeal. State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978).

Appellant’s fifth point on appeal is that the trial judge erred by not granting his request for an evidentiary hearing on whether the exclusion of potential jurors unalterably opposed to the death penalty results in a jury predisposed toward conviction. We have held that a defendant is not entitled to have jurors serve on his jury who are unalterably opposed to the death penalty and that a trial judge may excuse such jurors for cause. Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Riley v. State, 366 So.2d 19 (Fla.1978). Since we have previously determined as a matter of law that there is no constitutional infirmity with excluding jurors who because of personal beliefs could not render a verdict of guilty in a capital felony case, the trial judge did not abuse his discretion in denying the request for an evidentiary hearing.

Next appellant complains that he was prevented from further questioning a juror in a post-trial hearing about whether the jurors had considered appellant’s not testifying in reaching their verdict. The general rule in Florida is that a juror’s testimony is relevant only if it concerns matters which do not essentially inhere in the verdict itself. Russ v. State, 95 So.2d 594 (Fla.1957); Parker v. State, 336 So.2d 426 (Fla. 1st DCA), appeal dismissed, 341 So.2d 292 (Fla.1976). A jury’s consideration of a defendant’s failure to testify is not the same as considering evidence outside the record, but is rather an example of its misunderstanding or not following the instructions of the court. Such misunderstanding is a matter which essentially inheres in the verdict itself. Russ v. State; Parker v. State. We find from the record that the jury was properly instructed that the state has the burden of proving the defendant’s guilt and that the defendant is not required to respond. Therefore the court did not err in refusing to allow further questioning of the juror.

Appellant’s final argument concerning the guilt phase of the trial is that the trial judge erred in allowing the jury to return verdicts on multiple and inconsistent counts. In one count appellant was charged with premeditated murder or felony-murder of Pfeil based upon the robbery of Duncan. In a second count he was charged with premeditated murder or felony-murder of Pfeil based on the robbery of Guggenheim. Appellant filed a motion to require the state to elect one or the other count on the ground that since there was only one killing he could be found guilty at the very most of only one murder. The trial court denied the motion, finding there was no necessary inconsistency between the two verdicts. We agree with this ruling. See Reed v. State, 94 Fla. 32, 113 So. 630 (1927). In essence, the crime of murder was charged by alternative counts of the indictment. The court in effect consolidated the two verdicts by entering judgment of conviction for a single offense of first-degree murder. No prejudice arose from the denial of the motion to elect.

We now consider whether the trial judge properly imposed a sentence of death. As was stated above, the jury recommended the capital sentence. As aggravating circumstances, the trial judge found that appellant had previously been convicted of a felony involving the use or threat of violence, citing a previous conviction for assault with intent to rob and a previous conviction for robbery, section 921.-141(5)(b), Florida Statutes (1977); that appellant created a great risk of death to many persons, section 921.141(5)(c); that the capital felony was committed in the course of or in the attempt to commit or in flight after committing a robbery, section 921.141(5)(d); that the murder of the uniformed deputy sheriff was committed for the purpose of avoiding arrest, section 921.-141(5)(e); that the murder was motivated by pecuniary gain, section 921.141(5)(f); that the murder was committed to disrupt or hinder the enforcement of the law, section 921.141(5)(g); and that the murder was especially heinous, atrocious, or cruel, section 921.141(5)(h). Finding no statutory mitigating circumstances, the trial judge found that the aggravating circumstances outweighed any mitigating considerations.

Appellant points out several errors in the judge’s findings. One is that the judge should not have given separate consideration to circumstances (d), commission during a robbery, and (f), commission for pecuniary gain. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Nor should the judge have considered as separate aggravating circumstances (e), avoiding arrest, and (g), hindering law enforcement. Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981). The judge also erred in finding that this murder was especially heinous, atrocious, or cruel. E.g., Maggard v. State; Lewis v. State, 377 So.2d 640 (Fla.1979); 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).

Since there were no mitigating circumstances, the two instances of improper double consideration of or giving separate effect to similar statutory aggravating circumstances may be regarded as harmless error. We will simply consolidate the separate statutory factors so as to accord them their proper weight. The double recitation of proven factors does not call the propriety of the sentence into question unless it interferes with the mandated process of weighing the circumstances. Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979). Similarly, the erroneous finding that the murder was heinous, atrocious, or cruel may be considered harmless error. Armstrong v. State, 399 So.2d 953 (Fla.1981).

Despite these errors, therefore, we find that death is still the appropriate penalty. It was properly determined that the capital felony was committed in the course of a robbery, that it was committed for the purpose of avoiding arrest, and that appellant had previously been convicted of life-threatening crimes. Where there are some aggravating and no mitigating circumstances, death is presumed to be the appropriate punishment. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Therefore, despite the judge’s erroneous consideration of some of the aggravating circumstances, there remain several other aggravating circumstances properly found which support the sentence of death.

The judgments of conviction and the sentence of death are affirmed.

It is so ordered.

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


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY, Petitioner, v. K.E. MORRIS ALIGNMENT SERVICE, INC., Respondent.
    No. 62281.
    Supreme Court of Florida.
    Nov. 10, 1983.
    Rehearing Denied Feb. 22, 1984.

      William C. McLean, Jr., Tampa, for petitioner.
    Paul B. Johnson of Johnson, Paniello & Hayes, Tampa, for respondent.
   BOYD, Justice.

This case is before us on the petition of the Tampa-Hillsborough County Expressway Authority for review of a decision of the District Court of Appeal for the Second Appellate District of Florida. The decision of which review is sought is reported as K.E. Morris Alignment Service, Inc. v. Tampa-Hillsborough County Expressway Authority, 414 So.2d 299 (Fla. 2d DCA 1982). The decision is in conflict with Division of Administration, Department of Transportation v. Ely, 351 So.2d 66 (Fla. 3d DCA 1977). We therefore have jurisdiction to provide the requested review. Art. V, § 3(b)(3), Fla. Const.

The Tampa-Hillsborough County Expressway Authority instituted eminent domain proceedings against numerous parcels of land in Hillsborough County, including a small tract owned by K.E. Morris Alignment Service, Inc. The Authority sought to take only a part of respondent’s land, however, and respondent operated a business on remaining land adjoining the property taken.

In the course of the proceedings for determination of compensation, respondent made a claim for business damages under section 73.071(3)(b), Florida Statutes (1979). Although respondent had been in business at the location adjacent to the land being taken for only three years and two months, its business had been in continuous operation for more than thirty years. The trial court held that since the business had been in operation at the location for which business damages were claimed for less than five years, no business damages were recoverable under section 73.071(3)(b). The landowner appealed.

The district court reversed and held that section 73.071(3)(b) does not require, as a prerequisite to an award of business damages, that the business have been in operation at the location for which business damages are claimed for more than five years.

Section 73.071(3)(b) provides in pertinent part as follows:

(3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
(b) Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including, when the action is by the Division of Road Operations of the Department of Transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy an established business of more than 5 years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause.

The district court looked at the three criteria for business damages and found that they were independent requirements: the business must be established for more than five years, the business must be owned by the party whose lands are being taken, and the business must be located upon adjoining land owned or held by such party. Thus the district court found that there was no requirement in the statute that the business for which damages are sought have been operated for more than five years at the location adjoining the land being taken. We believe contrarily that the words “located upon adjoining lands” and the words “established business of more than 5 years’ standing” are intended to be read together and to qualify each other. We therefore hold that the district court erred in its construction of the statute. The statute indicates that the legislative intent is to allow business damages only to concerns having a physical existence for more than five years at the location where the partial taking is alleged to have caused business damages. Examined in the light of sound principles of statutory construction, the statute sustains the ruling of the circuit judge and demonstrates the error of the district court’s holding.

The power of eminent domain is an inherent feature of the sovereign authority of the state. Daniels v. State Road Department, 170 So.2d 846 (Fla.1964). The constitution limits this power by requiring that full compensation be paid to the owner for the property taken. Art. X, § 6(a), Fla. Const. The payment of compensation for intangible losses and incidental or consequential damages, however, is not required by the constitution, but is granted or withheld simply as a matter of legislative grace. Jamesson v. Downtown Development Authority, 322 So.2d 510 (Fla.1975). Business damages such as those sustained in the instant case fall in the category where compensation is not constitutionally required but depends on legislative authorization. City of Tampa v. Texas Co., 107 So.2d 216 (Fla. 2d DCA 1958), cert. dismissed, 109 So.2d 169 (Fla.1959).

The allowance of business damages in eminent domain proceedings, being a matter of legislative grace, is analogous to other forms of legislative largess, such as grants of franchise rights. The allowance of business damages can also be compared to a waiver of sovereign immunity. Legislative grants of property or franchise rights must, when construction is necessary, be strictly construed in favor of the state and against the grantee. Tampa & Jacksonville Railway v. Catts, 79 Fla. 235, 85 So. 364 (1920). A waiver of sovereign immunity, similarly, should be strictly construed in favor of the state and against the claimant. Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). So, any ambiguity in section 73.-071(3)(b) should be construed against the claim of business damages, and such damages should be awarded only when such an award appears clearly consistent with legislative intent.

Of course, the district court took the view that the plain language of the statute seemed to authorize an award; so that no resolution of ambiguity was necessary. But the district court gave the statute an interpretation it had never before received, and one that is at odds with the traditional understanding of the purpose and effect of the statutory business damages criteria. See, e.g., State Road Department v. Bramlett, 189 So.2d 481 (Fla.1966); State Road Department v. Lewis, 170 So.2d 817 (Fla.1964); Glessner v. Duval County, 203 So.2d 330 (Fla. 1st DCA 1967); Intercoastal Drydock, Inc. v. State Road Department, 203 So.2d 19 (Fla. 3d DCA 1967), cert. denied, 210 So.2d 223 (Fla.1968); State Road Department v. Abel Investment Co., 165 So.2d 832 (Fla. 2d DCA), cert. denied, 169 So.2d 485 (Fla.1964); State Road Department v. Peter, 165 So.2d 771 (Fla. 2d DCA 1964). It is true that none of the above-cited cases dealt with the precise issue that has arisen now. But in reasoning that “[i]f the legislature had intended the requirement that the business be located on the adjacent land for five years, it could have used plain language to so provide,” 414 So.2d at 300, the district court construed the statute as though there existed a presumption in favor of the claimant.

Statutes should be construed in light of the manifest purpose to be achieved by the legislation. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918); Curry v. Lehman, 55 Fla. 847, 47 So. 18 (1908). The purpose of section 73.071(3)(b) is to mitigate the hardship that may result when the state exercises the power of eminent domain paying only the constitutionally required full compensation for the property actually taken. The legislature in doing so has recognized that a business location may be an asset of considerable value and susceptible of being substantially damaged by a partial taking. To assure the existence of a substantial business interest in the location as a prerequisite to an award of business damages, the legislature included the requirement of five years of operation at the location. The requirement of “more than 5 years’ standing,” seen in the light of the legislative purpose, obviously refers to the length of time the business has operated at the location where business damages are claimed to have been incurred due to condemnation of adjoining land. The length of time that the operator of the business has been in business at previous or other locations and the duration of its existence as a business entity are obviously irrelevant to the inquiry mandated by the statute.

When a statute is susceptible of and in need of interpretation or construction, it is axiomatic that courts should endeavor to avoid giving it an interpretation that will lead to an absurd result. State ex rel. Florida Industrial Commission v. Willis, 124 So.2d 48 (Fla. 1st DCA 1960), cert. denied, 133 So.2d 323 (Fla.1961). If we were to adopt the district court’s view of section 73.071(3)(b), there could be absurd and unfair results in hypothetical situations that readily come to mind. Under the district court’s approach, two property owners operating businesses, both equally damaged by a partial taking of their respective properties, and both having been in operation at the affected location for less than five years, would be treated differently insofar as their eligibility to claim business damages is concerned if one of them had been in existence as a business entity for more than five years and the other had not. Thus the different treatment of the two landowners on the question of eligibility to claim business damages would be based on a factor having nothing whatsoever to do with the duration of their operations at the respective locations and therefore the degree of hardship imposed upon them by the partial taking of their respective premises. This would be an irrational distinction upon which to justify such differential treatment. “An interpretation of the language of a statute that leads to absurd consequences should not be adopted when, considered as a whole, the statute is fairly subject to another construction that will aid in accomplishing the manifest intent and the purposes designed.” City of Miami v. Romfh, 66 Fla. 280, 285, 63 So. 440, 442 (1913). Since the construction given the statute by the circuit judge comports with the obvious purpose of the statute, it should have been sustained by the appellate court.

Decisions of the appellate courts of Florida clearly indicate that the essential inquiry under the business damages statute is that of continuous operation of the business at the location where business damages are alleged to have been suffered. In Hooper v. State Road Department, 105 So.2d 515 (Fla. 2d DCA 1958), the trial court refused to allow a claim for business damages because the landowners had been operating the business for only about one year. The district court of appeal reversed because the owners had acquired the business as a going concern and it had been in continuous operation at the location for more than five years. Conversely, in Hodges v. Division of Administration, Department of Transportation, 323 So.2d 275 (Fla. 2d DCA 1975), the district court affirmed the trial court’s refusal of a business damages claim because, although a business similar to the landowner’s had some time previously been operated on the premises, the landowner had not acquired a business there but only a “business place” in which he opened a new business. 323 So.2d at 277. There was no continuous operation and the landowner’s business had been in existence for less than five years. The same kind of situation produced a consistent holding in Division of Administration, Department of Transportation v. Lake of the Woods, Inc., 404 So.2d 186 (Fla. 4th DCA 1981).

The district court of appeal in the instant case acknowledged that its decision was in conflict with Division of Administration, Department of Transportation v. Ely, 351 So.2d 66 (Fla. 3d DCA 1977). There a propane gas dealer claimed that the partial taking of a mobile home park with which it had a service agreement and where it had access easements for its facilities had taken its property and caused it business damages. The district court held that the service easement was not a kind of property the loss of which had to be compensated and rejected the claim of business damages for two reasons:

Business damages under Section 73.-071(3)(b), Florida Statutes (1975) are equally inapplicable in the instant case. Southeastern Propane Gas Co. did not own or have any property interest in the condemned land as required by the statute in order to qualify for business damages. Moreover, its business had not been operating on the adjoining land for more than five years as further required by the statute. The fact that Southeastern Propane Gas Co. as a company has been incorporated and doing business elsewhere throughout the state since the early 1950’s does not satisfy this five year requirement under the statute.

351 So.2d at 69. The second reason given, of course, pertains to the issue in the instant case upon which our conflict jurisdiction is predicated. Under our holding today, the Ely decision was correct.

The decision of the district court of appeal is quashed and the case is remanded with instructions that the ruling of the trial court be affirmed.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.

       Pursuant to chapter 74, Florida Statutes (1979), the court entered an order of taking on September 7, 1979, prior to the proceedings for determination of just compensation.


text:
    Thomas J. TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 61143.
    Supreme Court of Florida.
    Dec. 22, 1983.
    Rehearing Denied Feb. 27, 1984.

      Kirk N. Kirkconnell and Warren W. Lindsey of Muller & Kirkconnell, Winter Park, for petitioner.
    Jim Smith, Atty. Gen. and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for respondent.
   BOYD, Justice.

This case is before us to review a decision of a district court of appeal, Taylor v. State, 401 So.2d 812 (Fla. 5th DCA 1981), which passed upon a question certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioner Taylor was charged by indictment with two counts of first-degree murder and by information with one count of attempted first-degree murder. The indictment charged petitioner with murdering Teddy Pawalta and John Walwyn on the 27th day of October, 1979. The information charged him with attempting to murder Harry Clayton on the same day but left out the year. In both cases petitioner filed a motion for statement of particulars, requesting the exact date, time and place of the alleged crimes. Petitioner also moved to dismiss the information for failure to allege essential and ultimate facts, namely the year the attempted murder was to have taken place. Upon petitioner’s motion both cases were consolidated for trial. The court then granted the motion for statement of particulars with respect to each count of the indictment and information, but later denied the motion to dismiss the information. In its statement of particulars, the state narrowed the time of death as occurring between 12:01 a.m., October 24 and 12:01 a.m., October 28.

After the jury was sworn, petitioner again moved to dismiss the information for failure to allege as definitely as possible the time of the offense. The state responded that since petitioner had not been prejudiced, the court had the discretion to allow the state to amend the information. The court found petitioner had not been prejudiced and therefore denied his motion to dismiss and granted the state’s motion to amend the information.

At the trial, evidence was produced showing that petitioner had shot the three victims with a shotgun at around 11:30 p.m. on October 27, 1979. However, there was no evidence as to when Pawalta and Walwyn had actually died. The only relevant evidence was the medical examiner’s testimony that the two men were dead when he performed the autopsies at 9:30 a.m., October 28, the morning after the shooting. After the state rested, petitioner moved to dismiss the indictment for failure of any proof that the murder had been committed within the time given in the bill of particulars or on the date listed in the indictment. Petitioner also renewed his motion to dismiss the information for lack of a specific date. The state responded by requesting leave to amend the bill of particulars by extending the time ten hours to include the time the autopsies were performed. Finding that petitioner had not been prejudiced in the preparation of his defense, the court granted the state’s motion to amend the bill of particulars.

At the charge conference, the court asked the attorneys if there was a crime of attempted manslaughter. Petitioner’s attorney averred that there was. So, without any objection, the court instructed the jury on attempted manslaughter as a lesser included offense of attempted first-degree murder.

The jury found petitioner guilty of attempted manslaughter of Clayton. It also found him guilty of second-degree murder of Walwyn and manslaughter of Pawalta. The judge sentenced petitioner to two consecutive three-year terms with twenty years probation for' the crimes of manslaughter and second-degree murder and a concurrent five-year term for attempted manslaughter.

Petitioner appealed to the District Court of Appeal, Fifth District, arguing that the state should not have been allowed to amend the information or the bill of particulars and that there was no such crime as attempted manslaughter. The district court affirmed the judgments and certified the following question as one of great public importance:

IS THERE A CRIME OF ATTEMPTED MANSLAUGHTER UNDER THE STATUTES OF THE STATE OF FLORIDA?

401 So.2d 816. Our answer is a qualified yes.

As he did before the district court, petitioner argues that the crime of attempted manslaughter is a logical impossibility. He asserts that a person cannot form an intent to commit an act by culpable negligence. The district court found a certain appeal to petitioner’s argument, but concluded, as did the Fifth Circuit Court of Appeals in Charlton v. Wainwright, 588 F.2d 162 (5th Cir.1979), that the Florida Supreme Court has long recognized the crime of assault with intent to commit manslaughter. The district court reasoned that if there can be a crime of assault with intent to commit manslaughter, then there can be an attempt, which requires the formation of an intent, to commit manslaughter. The district court concluded that “precedent, if not logic, requires that we hold that there is a crime of attempted manslaughter in Florida.” 401 So.2d at 816.

The district court failed to perceive the erroneous assumption in appellant's argument that manslaughter is necessarily an involuntary act. This has never been the case in Florida. The crime of assault with intent to commit manslaughter was premised upon the fact that in Florida the crime of manslaughter includes certain types of intentional killings. The first case to hold there was such a crime as an assault with intent to commit manslaughter was Williams v. State, 41 Fla. 295, 26 So. 184 (1899), wherein the defendant was charged with assault with intent to murder, but was convicted of assault with intent to commit manslaughter. He appealed on the basis that such a crime was unknown to the law. This Court disagreed, stating:

[T]here is nothing in the definition of manslaughter to exclude from its provisions all intentional homicides, or to include within the definition of murder all intentional killings, unless the intention is so deliberate as to amount to a premeditated design. The ordinary case of a sudden combat where the passions are aroused by sufficient provocation will furnish a pertinent illustration. Here there may be an intent to take life accompanied by an assault with a deadly weapon to carry out that intent. If the intent does not rise to the degree of a premeditated design, the killing will not be murder, but manslaughter. If the act does not result in death, why will not the party be guilty of an assault with intent to commit a felony, to wit: manslaughter? We think he will be....

41 Fla. at 299-300, 26 So. at 186 (emphasis in original). The Court made it clear, however, that for a conviction of assault with intent to commit manslaughter to be valid, there must be proof that the defendant did intend to kill.

But upon indictments for assault with intent to commit any of the grades or degrees of unlawful homicide, it will not be sufficient to show that the killing, had it occurred, would have been unlawful and a felony, but it must be found that the accused committed the assault with intent to take life, for although an unintentional or involuntary killing may in some cases be unlawful and a felony, no man can intentionally do an unintentional act; and without the intent the assault can not be punished under this statute, even though the killing, had it been committed, would have amounted to a felony.

41 Fla. at 298, 26 So. at 185.

Thus this Court recognized the distinction found in common law between voluntary and involuntary manslaughter. The crime of assault with intent to commit manslaughter was found to exist only in those cases where, if death had resulted, the manslaughter would have been voluntary and not involuntary. By the same reasoning, it is not a logical impossibility for the crime of attempted manslaughter to exist in situations where, if death had resulted, the defendant could have been found guilty of voluntary manslaughter. Accord Anthony v. State, 409 N.E.2d 632 (Ind.1980); Commonwealth v. Hebert, 373 Mass. 535, 368 N.E.2d 1204 (1977); People v. Genes, 58 Mich.App. 108, 227 N.W.2d 241 (1975); State v. Norman, 580 P.2d 237 (Utah 1978); see also People ex rel. Bassin v. Isreal, 31 Ill.App.3d 744, 335 N.E.2d 53 (1975); State v. Carson, 292 Or. 451, 640 P.2d 586 (1982). But see People v. Weeks, 86 Ill.App.2d 480, 230 N.E.2d 12 (1967); State v. Carter, 44 Wis.2d 151, 170 N.W.2d 681 (Wis.1969).

In the present case there was sufficient evidence to support the jury’s verdict that appellant had attempted manslaughter. On the night of the shooting, appellant was tending a bar he owned. The three victims came in and started arguing with him about his firing Harry Clayton and about proper ownership of a dart throwing trophy. There is conflict in the testimony as to how much the victims actually provoked or threatened appellant before he grabbed his shotgun and started shooting. However, it is clear that appellant intentionally fired the shotgun at Clayton. This is sufficient proof that he intended to kill him. Kelly v. State, 78 Fla. 636, 83 So. 506 (1919).

We therefore hold that there may be a crime of attempted manslaughter. We reiterate, however, that a verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act. This holding necessitates that a distinction be made between the crimes of “manslaughter by act or procurement” and “manslaughter by culpable negligence.” For the latter there can be no corresponding attempt crime. This conclusion is mandated by the fact that there can be no intent to commit an unlawful act when the underlying conduct constitutes culpable negligence. On the other hand, when the underlying conduct constitutes an act or procurement, such as an aggravated assault, there is an intent to commit the act and, thus, there exists the requisite intent to support attempted manslaughter.

Petitioner raises as his second point that the trial court erred in allowing the state to amend its bill of particulars after the presentation of its case. In response to this argument the district court noted that

the trial court responded to the State’s request to amend by conducting an extensive inquiry into the matter, concluding that the determinative question was whether prejudice to the defendant existed. Finding none, the court allowed the amendment.
We hold that the court was correct in that determination. There was absolutely no doubt as to the offenses for which defendant was being tried. Further, there was no indication that he was prejudiced or misled by the fact that the indictment used the date of the shooting, whereas the proof of death was a few hours later. On the contrary, it affirmatively appears there was no prejudice.

401 So.2d at 814. The district court’s decision is a correct application of our holding in Hoffman v. State, 397 So.2d 288 (Fla.1981). Petitioner argues that Hoffman is not controlling since in that case the state moved to amend its bill of particulars before it presented any evidence. We do not view the timing of the request to amend a bill of particulars as the determinative factor, although it is a relevant factor, in determining whether a defendant has been prejudiced. Hoffman makes it very clear that the determinative factor in allowing the state to amend its bill of particulars is whether such an amendment will prejudice the defendant. See Stang v. State, 421 So.2d 147 (Fla.1982). We agree with the trial court and the district court that in this case there was no prejudice.

We therefore approve the decision of the district court of appeal.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OV-ERTON, McDonald and EHRLICH, JJ., concur.

      . At the time of this decision manslaughter was defined as the " ‘killing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this article....”’ 41 Fla. at 299, 26 So. at 186. This definition is essentially the same as that found in Florida's current manslaughter statute, section 782.07, Florida Statutes (1981):
      The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . E.g., Devoe v. Tucker, 113 Fla. 805, 152 So. 624 (1934); Kelly v. State, 78 Fla. 636, 83 So. 506 (1919); Hall v. State, 9 Fla. 203 (1860).

      . In Kelly v. State, this Court upheld the conviction for assault with intent to commit manslaughter of a defendant who had shot a runaway reform school inmate with a shotgun. The Court found that the testimony was "legally sufficient as a predicate for a finding that the defendant unlawfully shot Leroy Cowart with intent to kill him, by means and in a manner that made the shooting an act of culpable negligence, which would have constituted manslaughter if death had ensued from the shooting.” 78 Fla. at 641-42, 83 So. at 507. This statement, which equates shooting with intent to kill with an act of culpable negligence, is the source of the precedent by which this Court has held that one can intend to commit culpable negligence. We find that it was unnecessary for the court to have used the term "culpable negligence” in order to uphold the conviction in that case. Since there was evidence that the defendant intended to shoot the victim with a shotgun, the intent to kill could have been inferred despite the defendant’s statements to the contrary. We therefore decide this case without invoking the concept of culpable negligence which should be limited to cases of involuntary manslaughter.


author: EHRLICH, Justice.

text:
    J.E. STACK and Whitney National Bank, Petitioners, v. E.L. DUNN and John C. Nix, Respondents.
    No. 62722.
    Supreme Court of Florida.
    Jan. 12, 1984.
    Rehearing Denied Feb. 27, 1984.

      Donald H. Partington of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for petitioners.
    Ronald W. Ritchie of Reeves, King & Ritchie, Pensacola, for respondents.
   EHRLICH, Justice.

This cause is before the Court on grounds of express and direct conflict between the decision of the district court below, Dunn v. Stack, 418 So.2d 345 (Fla. 1st DCA 1982), and a decision of this Court, Myers v. Van Buskirk, 96 Fla. 704, 119 So. 123 (1928). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

On October 8, 1971, Matthew Barnes, as administrator of his parents’ estate, petitioned the probate court for permission to lease the mineral rights for a one-half undivided interest in a fourteen acre tract of land which was part of the estate. The tract was the subject of an ongoing suit to quiet title. On October 28, 1971, Barnes, pursuant to authority granted him as administrator of the estate by the probate court, negotiated a lease to Thomas Ates [the Ates lease]; the lease was approved by the probate court and placed in the probate file on November 16, 1971, but the lease was not recorded until May 11, 1972.

On July 21, 1972, the heirs of J.E. and Mary Barnes executed and duly recorded a power of attorney in favor of Matthew Barnes giving him specific authority to lease “mineral interests in real property owned by the estate of J.E. Barnes and Mary Barnes.” The instrument specified the mineral rights to be leased by setting forth the legal description of the parcels, including that portion subject to the Ates lease. That portion was subsequently declared to be homestead on August 2, 1974.

In the meantime, Zeda Barnes Davis, Matthew Barnes’s sister and the recipient of an undivided one-fifth share of her parents’ interest in the land, negotiated a lease of the mineral rights to her share of the property with E.L. Dunn. This lease [the Dunn lease] was signed January 17, 1972, and recorded two days later. The Dunn lease recited a consideration of $10 and “other consideration,” but no cash changed hands at that time. Dunn’s business associate, Lee McCormick, drew two drafts to-talling $4750 on his own account for Mrs. Davis, and Dunn delivered them to her as consideration for the lease. When Mrs. Davis tried to negotiate the drafts, the bank informed her that McCormick had refused to honor them because of the title irregularities still unsettled in the collateral suit. Mrs. Davis demanded the return of her lease, but Dunn refused. Instead, he filed a quiet title action against the Barnes heirs, Ates and other interested parties.

Respondent sought to assert the priority of the Dunn lease over the Ates lease, claiming to be a good faith purchaser for value without notice of the Ates lease. Additionally, respondent contended that the Ates lease was wholly invalid as it covered homestead property which had vested in the heirs upon the death of their parents. Because the power of attorney authorized Matthew to lease only mineral rights to real estate owned by the estate of the parents, and because homestead property by its very nature could never be owned by the estate, respondent contended that the power of attorney did not authorize the execution of the Ates lease.

Depositions and affidavits filed in connection with Dunn’s suit are contradictory. Dunn claimed to have had knowledge of the collateral quiet-title suit but to have been ignorant of the probate proceedings or of the Ates lease. Mrs. Davis’s testimony characterized by the DCA as “confusing and appearing] to provide factual conflicts,” was that Dunn had actual knowledge of the Ates lease, the probate proceedings and the collateral quiet title matter.

The trial court entered summary judgment, holding that as a matter of law Dunn was not a bona fide purchaser for value and that the Ates lease was prior in time and prior in right to the Dunn lease. The district court reversed the entry of summary judgment because of the existence of disputed issues of material fact concerning Dunn’s actual notice of the preexisting lease. The district court went on to reverse the trial court’s holding that Dunn was not a bona fide purchaser for value, in that Florida’s enactment of the Uniform Commercial Code grants Davis the right to sue on the dishonored drafts. Dunn and McCormick, according to the district court, were thus “irrevocably bound,” which was, in itself, valuable consideration sufficient to make Dunn a bona fide purchaser for value.

We quash the decision of the district court but we remand to the trial court for further proceedings on the issue of the validity of the Ates lease.

In holding that respondents were, as a matter of law, bona fide purchasers for value, the district court recognized that the mere recital of consideration in an instrument was insufficient consideration and examined the dishonored drafts in light of Myers v. Van Buskirk and the First District’s later application of it in Wise v. Quina, 174 So.2d 590 (Fla. 1st DCA 1965). Myers involved competing contracts to convey the same property. The later of the two contracts was purchased by Belk and Cunningham, without knowledge of the first, and they subsequently executed a quitclaim deed on the property to third parties, Cobb and Cambrón, for valuable consideration. At that same time, Myers, the owner of the land, delivered a warranty deed to Cobb and Cambrón for the property. Cobb and Cambrón executed a check for $3000, payable to Myers’s bank and delivered it to the bank with instructions that it be paid over to Myers upon delivery of quiet title. The check was paid out after Cobb and Cambrón had received both constructive and actual notice of the prior contract to convey. In weighing the opposing equities, the Supreme Court reiterated the classic formulation of priority: “One who has purchased and received a conveyance of legal title in good faith, for value, and without notice, actual or constructive, of an agreement to convey previously entered into by the grantor with a third person, will be protected against such prior agreement.” 96 Fla. at 710, 119 So. at 125. The Court went on to note that notice of a prior claim was ineffective against a second claim if it was received after the parties to that second claim had paid the purchase price or “become irrevocably bound for its payment.” Id. It is on the latter phrase that the First District built its decision below.

On the facts before it in Myers, however, the Court found that Cobb and Cambrón were not entitled to the protection accorded to bona fide purchasers for value precisely because they had neither paid nor irrevocably bound themselves to pay valuable consideration before they received notice of the preexisting claim. Even though they had delivered the check to the grantor’s bank and had made it payable to the bank itself, the Court refused to find that a valuable consideration sufficient to protect the interest in the legal title against the prior claim had existed before Cobb and Cambrón received notice. This holding cannot be used to define Dunn and McCormick as “irrevocably bound” to pay valuable consideration especially in light of the affirmative refusal to honor the drafts given to Mrs. Davis.

The First District construed the “irrevocably bound” language of Myers in Wise v. Quina. The . issue there was whether one who had yet to pay full purchase price could be a bona fide purchaser for value. There the purchaser had agreed to pay $34,000 for the property and had received title in exchange for an $8,000 down payment and a $26,000 mortgage payable to the grantor in monthly install-merits. The district court held that payment of the full purchase price was not required for grantees to enjoy bona fide purchaser for value status because the grantees

were “irrevocably bound” to pay the said balance, within what we conceive to be the meaning of these quoted words as used by the Supreme Court in the ... Myers case. We consider that the [grantees] were so bound even though they could, of course, elect to default on the note and mortgage, in which event the holder of these instruments would have the right to file against them a law action on the note or an equity suit to foreclose the mortgage. Nevertheless, they had no legal right to revoke their promise to pay and they were contractually bound by legally-enforceable instruments to make the payments (or suffer the legal consequences of default).

174 So.2d at 593-94. (Emphasis supplied.) We need not address the merits of the Wise decision, because it is factually distinguishable from the case before us. Unlike the grantees in Wise, respondents here asserted a legal right to revoke their promise to pay — Mrs. Davis’s failure to deliver clear title. In the event Mrs. Davis had sought to bring suit on the dishonored drafts, as the First District noted she was entitled to do, the respondents could have asserted as a valid legal defense failure of consideration for the dishonored drafts. § 673.408, Fla.Stat. (1971). One who has a legal right to revoke a promise to pay cannot be irrevocably bound to pay. Thus, we cannot approve the First District’s decision that the right to bring an action on a dishonored draft is valuable consideration sufficient to support the lease.

The determination that valid consideration had not supported the lease does not, unfortunately, unravel the tangled issues material to this quiet title action. After the Ates lease was recorded, but prior to the execution of the power of attorney by the Barnes heirs, Dunn paid Mrs. Davis-a ten dollar deposit on the lease he had earlier recorded. Section 695.01(1), Florida Statutes (1971), provides that a lease executed by virtue of a power of attorney is not effective against a subsequent purchaser for valuable consideration without notice unless the power of attorney is recorded before the subsequent purchaser acquires an interest. Thus, Dunn’s payment of consideration prior to the recordation of Barnes's power of attorney makes the attempt to ratify the Ates lease ineffectual as against the Dunn lease.

The issue which must be resolved, then, is the legal validity of the Ates lease as recorded on May 11, 1972, without reference to the subsequent attempts to ratify it. The property in question was not finally declared to be homestead until two years after the events which are the focus of this litigation. Matthew Barnes’s authority to lease the property as administrator of the estate was granted by the probate court which later divested itself of any jurisdiction over the property by declaring it to be homestead. This authority to lease was not questioned by Dunn until four years after the Ates lease was recorded. We do not have before us the record of the proceedings in probate court and are unable to make valid legal judgments on the sketchy allusions to those proceedings contained in the record properly before us. Suffice it to say that apparently there was a question as to which of the parcels owned by J.E. Barnes was in fact homestead and that Zelda Barnes Davis may have believed the parcel covered by the Ates lease to have been an asset of the estate at the time she agreed in the probate court to allow her brother to lease it on behalf of the estate. Issues of law and of equity are of necessity determined by the facts giving rise to the dispute. We can find no indication of any full and fair litigation of this point at the trial court level at which the necessary findings of fact must be made and, thus, we must remand this case for further proceedings.

Accordingly, the decision of the district court is quashed and the case is remanded for further proceedings.

It is so ordered.

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


author: ADKINS, Justice.

text:
    Robert A. PRESTON, Appellant, v. STATE of Florida, Appellee.
    No. 61475.
    Supreme Court of Florida.
    Jan. 19, 1984.
    Rehearing Denied Feb. 27, 1984.

      Joan H. Biekerstaff, Melbourne, Florida, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ADKINS, Justice.

This is an appeal from a judgment of the Eighteenth Judicial Circuit, Seminole County. The court adjudicated the appellant, Robert Anthony Preston, guilty on counts of premeditated murder, felony murder committed in the course of a robbery, felony murder committed during the course of a kidnapping, robbery, and kidnapping. The appellant was sentenced, following the jury’s recommendation, to death on the premeditated murder count. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and the sentence.

The evidence at trial established the following facts. Early in the afternoon on January 9, 1978, the nude and mutilated body of Earline Walker was discovered in an open field in Seminole County by a detective of the Altamonte Springs Police Department. The victim’s body had sustained multiple stab wounds and lacerations resulting in near decapitation.

Earline Walker was employed as a night clerk at a convenience store and had been discovered missing from the store at approximately 3:30 A.M. when an officer of the Altamonte Springs Police Department made his regular patrol. The officer also found that the sum of $574.41 was missing from the store.

The appellant, Preston, was arrested on the following day on an unrelated charge. While he was in the custody of the Seminole County Sheriff, a deputy recovered a light brown pubic hair from Preston’s belt buckle. Police also found a jacket of Preston’s and several detached food stamp coupons in Preston’s bedroom at his mother’s house the day after his arrest during a search conducted after the police had received Preston’s mother’s consent. Comparison of the serial numbers on the food stamps recovered from the wastebasket in Preston’s bedroom with those on two coupon booklets turned over to the police by an employee of the convenience store showed four matching coupons. In addition, fracture pattern analysis confirmed the coupons had been used at the convenience store to make purchases several days before the murder. No latent fingerprints were obtained from these sources.

Analysis revealed that the pubic hair recovered from Preston’s belt and another discovered on his jacket could have originated from the victim. Blood samples taken from the victim and Preston were compared with two stains found on Preston’s jacket. The stains proved to be of the same blood type and same enzyme group as those of the victim. In processing the victim’s automobile, which had been found abandoned on the day of the murder, several usable latent fingerprints were obtained. One was identified as being Preston’s.

Prior to trial, the appellant challenged the admissibility of the evidence obtained from his bedroom. The trial court granted the motion to suppress. The state filed an interlocutory appeal in the Fourth District Court of Appeal, which transferred that case to this Court. We declined jurisdiction and remanded the cause to the Fifth District Court of Appeal for a decision. State v. Preston, 376 So.2d 3 (Fla.1979). In State v. Preston, 387 So.2d 495 (Fla. 5th DCA 1980), the district court reversed the trial court’s order suppressing the evidence. The court specifically held that Preston’s mother had the authority to give consent to the search. Id. at 497. Accordingly, the fruits of the search were received in evidence at appellant’s trial following a second suppression hearing and over defense objection.

As his first point on appeal, Preston contends that valid consent had not been given by his mother to search his room and, therefore, introduction of the jacket and the food stamp coupons at trial was improper. The state contends that the Fifth District’s decision on this issue is the “law of the case” .and thus, is no longer open for consideration by this Court.

We do recognize the general rule that all points of law which have been adjudicated become the “law of the case.” Greene v. Massey, 384 So.2d 24, 28 (Fla.1980). However, an appellate court does have the power to reconsider and correct erroneous rulings notwithstanding that such rulings have become the law of the case. Strazzula v. Hendrick, 177 So.2d 1, 4 (Fla.1965). Reconsideration is warranted only in exceptional circumstances and where reliance on the previous decision would result in manifest injustice. When the Fourth District transferred the interlocutory appeal in this case to this Court, we stated that interlocutory appeals under article V, section 3(b)(3) of the constitution are confined to orders “passing on a matter” which on final judgment would be appealable to this Court. State v. Preston, 376 So.2d 3, 4 (Fla.1979). We noted that routine interlocutory orders, such as the suppression order at issue here, could be appealable to this Court if a conviction is had and a death sentence imposed. Id. For these reasons, we declined jurisdiction to hear the appeal at that time. We now find that we do have jurisdiction of this cause and that reconsideration of the suppression issue is proper. Section 921.-141(4), Florida Statutes (1981), mandates automatic and full review of a judgment of conviction resulting in imposition of the death penalty. This Court has determined that the statute requires that “[i]n capital cases, the court shall review the evidence to determine if the interest of justice requires a new trial.” Fla.R.App.P. 9.140(f). The interest of justice, substantive due process requirements and Florida’s constitutional and statutory’ scheme of death penalty review jurisdiction support our decision to review this issue.

We now turn to the merits on this point. The first prong of appellant’s argument is that the Fifth District Court of Appeal erred in finding that Preston’s mother had sufficient joint access and dominion over her son’s room to authorize its search. Appellant relies on three cases to support this contention. First, he argues that United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and this Court’s decision in Silva v. State, 344 So.2d 559, 562 (Fla.1977), hold that when a third party gives permission to search they must possess common authority over or other sufficient relationship to the premises or effects sought to be inspected to justify a warrantless search. This common authority is decided on the basis of the following criteria: 1) the individual s reasonable expectation of privacy-in the area; 2) whether others generally had access to the area; and/or 3) whether the objects searched were the personal effects of the individual unavailable to consent. 344 So.2d at 563. In addition, appellant relies on People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 (1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974), for the proposition that mere access to premises to clean is insufficient access upon which to find authority to consent to its search. Appellant maintains that since Preston’s mother only had access to her son’s room for cleaning purposes she lacks the requisite authority to consent.

The district court utilized the standard enunciated in Matlock. The Court’s opinion stated:

The mother here had access for purposes of doing laundry. The jacket, an article of clothing, was left out in the open. The food stamps were found in a wastebasket, another area over • which the mother had access. In addition, there is no reasonable expectation of privacy in regard to articles thrown into the garbage or abandoned. This was not a closet or a bureau drawer, and we respectfully disagree with the trial court. We hold, based on all of the facts and circumstances in the record before us, that the mother did have equal access to the areas where these particular articles were found.

387 So.2d at 497 (citations omitted). The Fifth District Court of Appeal’s reasoning clearly comports with the criteria we established in Silva. People v. Nunn can be distinguished from the instant case. In Nunn, the Illinois Supreme Court invalidated the search of a son’s room because, even though his mother had access to the room to clean it, the son had locked the door when he left before the search and had told his mother not to let anyone enter. The court found it apparent from the precautions taken that the son believed the locked room would not be entered. 304 N.E.2d at 86. No such precautions or other exhibition of expectation of privacy by Preston in those articles which were left out in the open in his room are apparent from the facts established here. Preston was obviously aware of his mother’s access to the particular items seized here as well as anything within the regular scope of her cleaning activities. Thus, we agree with the district court of appeal’s conclusion that he had no reasonable expectation of privacy in those items.

The second prong of appellant’s argument is that Mrs. Preston did not voluntarily consent to the search. Appellant states in his brief that there is a strong suggestion in the record that Mrs. Preston’s consent was the product of mere acquiesance or submission to authority. We find no basis for this contention. Whether a consent to search was in fact voluntarily given is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Chesnut v. State, 404 So.2d 1064, 1065 (Fla.1981). We find the record was sufficient for the trial court to conclude that Mrs. Preston’s consent was voluntary.

Finally, appellant argues that his mother’s consent was conditioned upon her being present during the search and that, therefore, it could not be conducted until after five o’clock in the afternoon. The trial court made the factual determination that this condition was not placed by Mrs. Preston on her consent. We find evidence exists in the record to support this conclusion. The district court’s decision admitting the evidence seized will be upheld.

As his second point of error, appellant alleges that the trial court erred by failing to grant his motions for judgment of acquittal. Appellant’s argument is that the record fails to contain sufficient evidence of the element of premeditation to sustain Preston’s conviction for first-degree murder. The appellant admits that the record contains compelling evidence but that it is solely circumstantial.

Premeditation can be shown by circumstantial evidence. Sireci v. State, 399 So.2d 964, 967 (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, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). Whether or not the evidence shows a premeditated design to commit a murder is a question of fact for the jury. Larry v. State, 104 So.2d 352, 354 (Fla.1958). In Larry v. State, this Court stated:

Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it in so far as the life of his victim is concerned. No definite length of time for it to exist has been set and indeed could not be.

Id. (citations omitted).

There is substantial evidence from which premeditation could have been inferred by the jury. The victim sustained multiple stab wounds. The nature of the injuries she sustained were particularly brutal. There was almost a complete severance of her neck, trachea, carotid arteries and jugular vein. The medical examiner stated the murder weapon was probably a knife of four or five inches in length. Such deliberate use of this type of weapon so as to nearly decapitate the victim clearly supports a finding of premeditation.

Considering all reasonable inferences which the jury could draw from the appellant’s statements and the nature and manner of the wounds inflicted on the victim, we cannot conclude that the determination of the trial court was erroneous.

As his next contention appellant submits that the trial court erred in failing to instruct the jury on the defense of insanity. Appellant’s brief argument is basically that his prolonged use of drugs caused him to be insane at the time of the murder. Appellant relies on this Court’s decision in Cirack v. State, 201 So.2d 706 (Fla.1967), and argues that a Cirack type jury instruction should have been given.

In Cirack this Court recognized the type of insanity induced by the long and continued use of “intoxicants” which would produce a “fixed and settled frenzy or insanity either permanent or intermittent.” 201 So.2d 709 (citations omitted). See also Askew v. State, 118 So.2d 219 (Fla.1960); Cochran v. State, 65 Fla. 91, 61 So. 187 (1913). But, when a single instance or episode of voluntary intoxication impairs a defendant’s judgment and ability to distinguish between right and wrong it will not support the complete defense of insanity-

The burden is on the defendant to place in evidence matters that show his insanity. Parkin v. State, 238 So.2d 817, 822 (Fla.1970). It is proper to give the appropriate charges on the issue of insanity where there is substantial, though conflicting, evidence. Cochran v. State, 61 So. at 190. We do not believe that substantial evidence exists in the record to justify reversal of the trial court’s refusal to instruct on insanity. Dr. Vaughan, the appellant’s own expert witness, testified that Preston did not suffer from any mental infirmity, disease or defect. He also testified that he did not observe, in his examination of Preston, any fixed and settled insanity either permanent or intermittent. Appellant argues that, nevertheless, lay testimony presented supports an insanity defense. We find this argument to be unsupported by the record.

The fourth point raised on appeal is whether the trial court properly applied the aggravating and mitigating factors of section 921.141(5) and (6), Florida Statutes (1981), in arriving at his decision to impose the death penalty. The trial judge found four aggravating and no mitigating factors under the death penalty statute.

The first circumstance found applicable was section 921.141(5)(b), which reads:

The defendant was previously convicted of another capital felony or of a felony involving the use or the threat of violence to the person.

Evidence of Preston’s felony conviction for throwing a deadly missile into an occupied vehicle was presented by the state and stipulated to by Preston. Appellant concedes that the conviction of this offense supports a finding of this factor but argues that he had requested and been denied notice of whether the state intended to introduce evidence on this issue and that such notice is required by section 775.-084(3)(b), Florida Statutes (1981), the habitual offender statute, when a prior conviction is relied upon for the purpose of enhancing a penalty. We find this contention to be without merit. Previous efforts to analogize the provisions of section 775.084, the habitual offender statute, to capital eases have been rejected by this Court. Ruffin v. State, 397 So.2d 277, 282 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). Furthermore, the death penalty statute itself puts a defendant charged with a capital felony on notice that the provisions of section 921.141(5) will be applied. Spinkellink v. Wainwright, 578 F.2d 582, 609-10 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

The second aggravating factor applied was section 921.141(5)(d). That section reads:

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

The trial judge found that Preston had committed the murder immediately after he had committed the crime of robbery and while he was engaged in the commission of a kidnapping. Appellant does not contest the applicability of this aggravating factor and we find it to be supported by the evidence.

The trial judge found as his third applicable aggravating circumstance that the capital felony (murder) was especially heinous, atrocious, or cruel. § 921.-141(5)(h). The court set out its finding as follows:

The murder of Earline Walker was accomplished after Preston committed robbery and kidnapped the victim, by the use of a knife, cutting the throat of the victim by severing the jugular veins, trachea and main arteries of the neck. In addition, the victim was stabbed numerous times in and about her body, and a crossmark was cut into her forehead, which acts apparently took place immediately after the victim’s throat was slashed. The deliberate slashing of the throat of the victim from one side to the other with the force necessary to sever the jugular veins, trachea and main arteries is especially heinous, atrocious and cruel.

Preston claims that the manner of the killing is not the conscienceless or pitiless type of killing required by this Court in previous capital cases. He argues that the evidence established that the victim was not cognizant of the wounds inflicted after the initial slashing of her throat and, therefore, the death being instantaneous or near-instantaneous, it is not especially atrocious, heinous or cruel according to this Court’s holding in 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 has upheld the application of this factor where victims were killed instantaneously or nearly-instantaneously when, before the death occurred, the victims were subjected to agony over the prospect that death was soon to occur. The state argued in the trial court that this factor applied because of the mental anguish that the victim must have felt as the series of events surrounding the murder unfolded. The jury found that Preston had robbed the store and then forced the victim to accompany him on a mile-and-a-half journey (to where her car was discovered). Her virtually naked body was found approximately five hundred feet from the car. This creates an obvious picture of a woman being forced to walk at knifepoint this considerable distance speculating as to her fate and undoubtedly cognizant of the likelihood of death at the hands of her abductor. Clearly, the victim must have felt terror and fear as these events unfolded. This finding is in accord with many of our previous decisions. Adams v. State, 412 So.2d 850 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982) (fear and emotional strain of abduction and attempted rape on eight-year-old girl prior to instantaneous death by strangulation was heinous, atrocious and cruel); Jones v. State, 411 So.2d 165 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982) (point-blank range, handgun, execution style shooting of victim in back of head, while he lay prone on the floor of the liquor store pleading to be spared and after money had been taken from cash register, was properly called heinous, atrocious and cruel); Knight v. State, 338 So.2d 201 (Fla.1976) (victims, husband and wife, were kidnapped and held for hours by the defendant before he shot them with a rifle killing them almost instantaneously). Cooper, upon which the appellant relies, is easily distinguishable from the factual situation here. In Cooper, the defendant walked up to the victim, a deputy sheriff, and shot him twice in the head killing him instantly. 336 So.2d at 1136. We emphasized the instantaneousness and painlessness of the death and stated that additional acts which make a killing “heinous” were absent. Id. at 1141.

The fourth aggravating circumstance found by the lower court was under section 921.141(5)(i) which reads:

(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

The appellant argues that the finding of this factor in this case is absolute error in that it constitutes an ex post facto application of the law. The statute was enacted in July of 1979 and the murder of Earline Walker occurred on January 8, 1978. The state asserts that this argument has been previously rejected by this Court in 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). We agree that Combs did determine this issue. We held in Combs that this aggravating circumstance could be retroactively applied since we found that it did not change the substance of the sentencing law to the detriment of capital offenders. See also Justus v. State, 438 So.2d 358 (Fla.1983). We must reject appellant’s argument.

The level of premeditation needed to convict in the guilt phase of a first-degree murder trial does not necessarily rise to the level of premeditation required in section 921.141(5)(i) . This aggravating circumstance has been found when the facts show a particularly lengthy, methodic, or involved series of atrocious events or a substantial period of reflection and thought by the perpetrator. See, e.g., Jent v. State (eyewitness related a particularly lengthy series of events which included beating, transporting, raping, and setting victim on fire); Middleton v. State, 426 So.2d 548 (Fla.1982) (defendant confessed he sat with a shotgun in his hands for an hour, looking at the victim as she slept and thinking about killing her); Bolender v. State, 422 So.2d 833 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983) (defendant held the victims at gunpoint for hours and ordered them to strip and then beat and tortured them before they died).

The trial judge’s specific finding on this point, as stated in the record, is as follows:

This murder, specifically the cutting of the throat of the victim from one side to the other, was committed in a cold and calculated manner with premeditation and without any pretence of moral or legal justification.

We do not feel that this finding or the record adequately supports the existence of the heightened form of premeditation required by this aggravating circumstance. The type of facts previously held to justify a finding of “cold, calculated and premeditated manner” within the meaning of subsection (i) simply do not exist here. We must reverse the trial court as to its finding on this aggravating circumstance.

We hold that the trial court properly found three aggravating circumstances to be applicable, and we now turn to the issue of mitigating circumstances of which the trial court found none to be applicable. Appellant argues that the trial judge should have found three statutory mitigating circumstances: 1) that the murder was committed while the appellant was under the influence of extreme mental or emotional disturbance; 2) that the capacity of the appellant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and 3) the age of the defendant at the time of the crime.

We find that the evidence supports the trial court’s rejection of these three mitigating circumstances and feel further discussion is not warranted. Having concluded that no mitigating factors are applicable and that three aggravating factors are, we must affirm the judgment of conviction and the sentence of death.

It is so ordered.

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

      . This holding corrects an inadvertent error made by this Court in lent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), where we stated that the level of premeditation needed to convict in the penalty phase of a first-degree murder trial does not necessarily rise to the level of premeditation required in section 921.-141(5)(i).


author: OVERTON, Judge. ALDERMAN, Chief Justice,

text:
    Keith Darnell JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 63000.
    Supreme Court of Florida.
    Jan. 19, 1984.

      Michael E. Allen, Public Defender; Nancy A. Daniels and Steven L. Bolotin, Asst. Public Defenders, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for respondent.
   OVERTON, Judge.

This is a petition to review an en banc decision of the First District Court of Appeal reported as Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982), which approved the authority of a trial judge to tax costs against an indigent defendant for the Crimes Compensation Fund and the Florida Department of Law Enforcement Training Fund. The district court in its opinion expressly acknowledged conflict with Ivory v. State, 419 So.2d 695 (Fla. 2d DCA 1982); Johnson v. State, 419 So.2d 412 (Fla. 2d DCA 1982); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); and Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The relevant circumstances reflect that the petitioner, after being charged with felony offenses, executed an affidavit of insolvency stating under oath that he was “totally insolvent and unable to pay the charges, costs, or fees in this cause, either in whole or in part’’ 422 So.2d at 1010. (Emphasis supplied.) The trial court entered an order of insolvency adjudging that the defendant be declared “totally insolvent.” The petitioner was subsequently convicted of aggravated battery and carrying a concealed firearm. At the sentencing proceeding, the trial court imposed costs of ten dollars for the Crimes Compensation Fund under the authority of section 960.20, Florida Statutes (1981), and two dollars for the Law Enforcement Training Fund under the authority of section 943.25(4), Florida Statutes (1981). During the same sentencing proceeding, petitioner’s attorney asked for the appointment of the public defender to represent petitioner for the purposes of appeal. Upon inquiry, petitioner again indicated to the court that he had no funds. The court expressly acknowledged that petitioner’s financial situation had not changed and appointed the public defender.

On appeal to the First District Court of Appeal, petitioner challenged the imposition of the Crimes Compensation and Law Enforcement Training Funds costs pursuant to sections 960.20 and 943.25(4), Florida Statutes (1981). The district court, on its own motion, voted to hear this cause en banc because the preliminary panel decision in this case conflicted with the court’s prior decision in Mobley v. State, 414 So.2d 25 (Fla. 1st DCA 1982).

In affirming the assessment of costs against petitioner, the district court receded from Mobley. The court distinguished between attorney’s fees and “large court costs,” which the court conceded could not be assessed against an indigent defendant, and the “$12.00 or $24.00” costs for the Crimes Compensation and Law Enforcement Training Funds, which the court concluded are authorized to be assessed pursuant to sections 960.20 and 943.25(4), Florida Statutes (1981). The court distinguished the latter costs from other court costs and classified them as “special costs.” The court also determined that our decision in State v. Byrd, 378 So.2d 1231 (Fla.1979), and the first district’s decision in Arnold v. State, 356 So.2d 862 (Fla. 1st DCA 1978), were not applicable to these types of costs. The district court held that, to avoid imposition of these costs, an indigent defendant must affirmatively object to the assessment and “convince the trial judge of his inability to pay the charge.” 422 So.2d at 1008. The district court concluded that:

The trial court must find that the defendant is wholly unable to pay the $12.00 in costs and, if it so finds, shall discharge the defendant from the payment of the $12.00. See Section 939.05. The finding of indigency under Section 27.52 is not applicable to the costs imposed by Sections 920.20 and 943.25(4).

Id.

We must disagree with the district court’s analysis and its affirmance of the trial court’s assessment of costs in this instance. We agree, however, that a trial judge may, after compliance with due process requirements, tax these costs against an indigent defendant.

It is necessary that we reconcile this case with our prior decisions in Cox v. State, 334 So.2d 568 (Fla.1976), and State v. Byrd, 378 So.2d 1231 (Fla.1979). In Cox we held that costs, under the circumstances presented in that ease, could not be assessed as part of a sentence of imprisonment against an indigent defendant, noting that section 939.15, Florida Statutes (1975), directed the counties to pay all costs of an indigent defendant. In Byrd we modified that holding and explained that section 939.15 did not establish the right of an indigent defendant to have his costs paid by the government. We explained that the United States Supreme Court had already established this right as one guaranteed by the United States Constitution. See Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). We held in Byrd that section 939.15 was only intended “to prescribe which governmental entity in the State of Florida must pay the court costs of an indigent defendant in a criminal case.” 378 So:2d at 1232. We also recognized the authority of the court to direct, in an order of probation, that a presently indigent defendant repay court costs in accordance with the principles set forth in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). Those principles require that, before the provision for repayment is enforced, a judicial determination must be made that the defendant has the ability to pay. It should be noted that the legislature, through section 27.56, provided a means for the county to establish a lien to recover the funds it had expended on behalf of an indigent defendant. To ensure compliance with due process, section 27.56 requires “adequate notice” to the defendant that the county is seeking recovery of those costs and an opportunity for the defendant to be heard on that issue.

The existence of a similar lien statute for the recovery of state costs is not a prerequisite for the assessment of costs under sections 960.20 and 943.25 against an indigent defendant. The state must, however, provide adequate notice of such assessment to the defendant with full opportunity to object to the assessment of those costs. In addition, any enforcement of the collection of those costs must occur only after a judicial finding that the indigent defendant has the ability to pay in accordance with the principles enunciated in Fuller v. Oregon. Further, these costs have no priority over costs owed to the county pursuant to section 939.15.

In the instant case, there was no prior notice given to the defendant that these costs would be assessed against him at the sentencing hearing. Consequently, the assessment of costs was not appropriate in this case.

For the reasons expressed, we approve in part and disapprove in part the opinion of the district court. Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in this opinion.

It is so ordered.

BOYD and EHRLICH, JJ., and TILLMAN PEARSON (Ret.), Associate Justice, concur.

ALDERMAN, C.J., dissents with an opinion with which ADKINS and McDONALD, JJ., concur.

ALDERMAN, Chief Justice,

dissenting.

I would approve the decision of the First District Court of Appeal. As pointed out by Judge Mills in his opinion:

The costs issue was not presented to the trial judge. At the sentencing proceeding the judge, in open court and before Jenkins and his counsel, imposed the costs. He then found Jenkins indigent and appointed the public defender to represent him on appeal. It is not apparent that these are inconsistent. Section 27.52, Florida Statutes (1981), establishes the criteria for a determination of indi-gency. Even the most cursory reading of that statute, as well as common sense, reveals that a defendant may be unable to afford attorneys and the large court costs dealt with in State v. Byrd, 378 So.2d 1231 (Fla.1979), or Arnold v. State, 356 So.2d 862 (Fla. 1st DCA 1978), but is still easily able to pay $12.00 or $24.00. Jenkins was given ample opportunity to object and to convince the trial judge of his inability to pay the charge. He failed to take advantage of either.
Sections 939.05 and 939.15, as well as 924.17, are asserted as protecting Jenkins from the costs assessment. These are the statutes applied in Arnold and Byrd, supra. Neither are applicable to the special costs imposed by Sections 960.20 and 943.25(4), Florida Statutes (1981). See Griggs v. State, 416 So.2d 1270 (Fla. 5th DCA 1982).
We recede from our decision in Mobley v. State. A defendant who objects to the imposition of costs under Sections 960.20 and 943.25(4) shall be required to timely object on the ground of insolvency and shall offer due proof of insolvency in open court.
The trial court must find that the defendant is wholly unable to pay the $12.00 in costs- and, if it so finds, shall discharge the defendant from the payment of the $12.00. See Section 939.05. The finding of indigency under Section 27.52 is not applicable to the costs imposed by Sections 960.20 and 943.25(4).

Jenkins v. State, 422 So.2d 1007, 1008 (Fla. 1st DCA 1982) (emphasis supplied).

There is no need for further proceedings. The trial court did not err in assessing costs for the Crimes Compensation Fund and for the Law Enforcement Training Fund against this defendant.

ADKINS and McDONALD, JJ., concur.

      . Section 960.20, Florida Statutes (1981), reads as follows:
      Additional costs. — When any person, after January 1, 1978, pleads guilty or nolo conten-dere to, or is convicted of, any felony or misdemeanor under the laws of this state, there shall be imposed as an additional cost in the case, in addition and prior to any other cost required to be imposed by law, the sum of ⅞ 10. The clerk of the court shall collect and forward $9 of each $10 collected to the Treasurer, to be deposited in the Crimes Compensation Trust Fund. The clerk shall retain the remaining $1 of each $10 collected as a service charge of the clerk’s office. Under no condition shall a political subdivision be held liable for the payment of this sum of $10.

      . Section 943.25(4), Florida Statutes (1981), provides that "[a]ll courts created by Art. V of the State Constitution shall assess $2 as a court cost against every person convicted for violation of a state penal or criminal statute_”

      . Section 939.15, Florida Statutes (1975), reads as follows:
      Costs paid by county in cases of insolvency. —When the defendant in any criminal case pending in any circuit or county court, a district court of appeal or the supreme court of this state has been adjudged insolvent by the circuit judge or the judge of the county court, upon affidavit and proof as required by s. 924.17 in cases of appeal, or when the defendant is discharged or the judgment reversed, the costs allowed by law shall be paid by the county in which the crime was committed, upon presentation to the county commissioners of a certified copy of the judgment of the court against such county for such costs.

      . Section 27.56, Florida Statutes (1981), entitled "Assistance; lien for payment of attorney’s fees or costs,” authorizes a court to assess attorney's fees and costs against the person who has been adjudicated guilty and who has received the assistance of court-appointed counsel. The court may order payment of these costs as a condition of probation or suspension of sentence. The section further provides that, when the court determines the amount of these costs, the defendant shall have adequate notice thereof and shall have the opportunity to object to the court’s determination.


author: PER CURIAM.

text:
    Johnny Ray OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 83-613.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
   ON MOTION TO MODIFY MANDATE

PER CURIAM.

On November 16, 1983, the state filed a motion to recall and modify mandate which was issued on October 4, 1983, in the case of Owens v. State, 437 So.2d 796 (Fla. 2d DCA 1983). The state alleged in its motion that after the time period for filing a motion for rehearing had expired, the case of Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978), came to the state’s attention. The state further alleged that Owens v. State is in direct conflict with Vitko v. State, and thus, an intradistrict conflict exists.

On November 23, 1983, this court entered an order granting the state’s motion “only insofar as it seeks to withdraw and stay the mandate” pending further order from the court. Having considered the merits of the state’s entire motion, we now grant that portion of the state’s motion requesting modification of the mandate.

The appellate court has the power to recall its mandate so long as the recall is within the term during which the opinion was issued. See State Farm Mutual Automobile Insurance Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981), and United Faculty of Florida v. Board of Regents, State University System, 423 So.2d 429 (Fla. 1st DCA 1982); Jerry v. State, 174 So.2d 772 (Fla. 2d DCA 1965). Here, the applicable term commenced July 1, 1983, and concluded December 31, 1983. Thus, withdrawal of the Owens mandate was proper.

Concerning the merits of the state’s motion, we direct our discussion to the instant case and the cases cited by the parties. In Owens, this court held that it was reversible error for the trial court to deny appellant’s request for a jury instruction on aggravated assault, a category (2) lesser included offense of robbery with a firearm, because “carrying” a deadly weapon alleged in the information satisfied an essential element of aggravated assault. The state argues in its motion that Vitko is in direct conflict. In Vitko, this court held that the defendant’s conviction of aggravated assault, as a lesser included offense of attempted robbery for which he was charged, could not stand because the allegation that the defendant “did carry” a deadly weapon in the information did not allege an essential element of aggravated assault. In response to the state’s argument, the defendant cites Blow v. State, 386 So.2d 872, 874 (Fla. 1st DCA 1980), in support of his argument that this court should recede from Vitko and follow the Owens ruling. In Blow, the court stated that “the allegation [in the information] that he [defendant] carried a firearm in the commission of the offense was sufficient to apprise him of the lesser included charge [aggravated assault].” The applicability of the Blow decision to the resolution of the conflict, however, is diluted by the defendant’s failure to object to the jury instructions which was the pivotal issue in the determination of the case. In Blow, the court did not opine as to how it would rule if the defendant had objected to the jury instructions. In any event, we conclude the more favorable approach is to modify the mandate to conform with our holding in Vitko. In so doing, an interdistrict conflict with the above-quoted language in Blow is created and we therefore certify the following question to the supreme court:

WHETHER AN INFORMATION WHICH ALLEGES THAT A DEFENDANT “CARRIED” A FIREARM IS SUFFICIENT TO ALLEGE AN ESSENTIAL ELEMENT OF AGGRAVATED ASSAULT, AN OFFENSE THAT IS STATUTORILY DEFINED BY SECTION 784.021(l)(a) AS AN ASSAULT WITH A DEADLY WEAPON.

Accordingly, the mandate issued on October 4, 1983, is recalled and vacated, and the case is affirmed with directions that the defendant’s adjudication and sentence be reinstated. The trial court is also directed to strike court costs and the fine to the Crimes Compensation Trust Fund imposed against the indigent defendant unless defendant was given adequate notice of such assessment and full opportunity to object to the assessment. See Jenkins v. State, 444 So.2d 947 (Fla.1984).

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.


author: McDONALD, Justice.

text:
    Frederick BEISEL and Elizabeth Beisel, his wife, Petitioners, v. G. William LAZENBY, Respondent.
    No. 63216.
    Supreme Court of Florida.
    Jan. 19, 1984.
    Sam Daniels of Daniels & Hicks, and Anderson & Moss, Miami, for petitioners.
    Thomas Saieva of Woodworth, Carlson, Meissner & Webb, St. Petersburg, for respondent.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, for Dade County Trial Lawyers Ass’n, amicus curiae.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for the Florida Defense Lawyers Ass’n, amicus curiae.
   McDONALD, Justice.

This case is before us to review a district court decision, Lazenby v. Beisel, 425 So.2d 84 (Fla. 2nd DCA 1982), which held the defendant in a medical malpractice action entitled to a directed verdict where the plaintiffs failed to prove the negligence more likely than not caused the damages claimed. The district court certified this decision to us as being in direct conflict with the decisions in Hernandez v. Clínica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974), and Dawson v. Weems, 352 So.2d 1200 (Fla. 4th DCA 1977). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution and approve the decision under review.

In Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984), we examined Hernandez and Dawson and disapproved them insofar as they tend to relax the probable or more than likely requirement of causation in medical malpractice actions. While some jurisdictions allow recovery for the loss of any chance for improvement, we believe anything less than the more likely than not causation requirement in medical malpractice actions to be improper. It would impose a much heavier burden on health care providers than that imposed on all other professionals accused of malpractice. See Gooding.

In the case under review the Beisels’ expert witness could not state that any of the treatments he recommended but which were not given by the defendant probably or more likely than not would have saved Mr. Beisel’s eye. To prevail he needed to do so and thus the district court correctly held the evidence supporting Beisel’s claim was insufficient to create a jury question on causation. Accordingly, we approve the decision of the district court.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and SHAW, 33., concur.

ADKINS, J., dissents.