text:
    Julia Ann MITCHELL v. STATE.
    6 Div. 120.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-692.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The Jefferson County Grand Jury, in its October, 1982 session, indicted appellant, Julia Ann Mitchell, for the murder of Clarence Quarels. On February 1, 1983, she was found guilty as charged, and on February 11, 1983, she was sentenced to twenty years in the state penitentiary.

At trial, in preliminary testimony, David Hubbard stated that he had known Clarence Quarels for twenty years, that they worked together, had lived together for a year and that they were good friends. He testified that he had known Ms. Mitchell all of his life, that she and Quarels were going together, and that she stayed overnight at Quarels’ house about three nights a week. He characterized their relationship as that of boyfriend and girlfriend.

Hubbard next recounted events which concluded in the death of Quarels on July 17, 1982. He testified that at 4:30 a.m., on the morning in question, he was awakened by Ms. Mitchell and Mr. Quarels arguing in the street. She was hollering and Quarels tried to get her to come inside. When she refused to come in, he locked the front screen door and went back into the kitchen. Hubbard, who remained in the front room, saw Ms. Mitchell cut the screen, let herself in and go into the bedroom. Later, while Hubbard and Quarels were talking in the front room, she rushed out of the bedroom and said, “I’m going to kill you,” and began hitting Quarels in the chest with a knife. Hubbard grabbed her, seizing the weapon, and Quarels collapsed on the floor. Ms. Mitchell stood over him and said, “Oh, I done killed Mr. Clarence,” upon which she ran out of the house. In answer to Hubbard’s call, both the paramedics and the Birmingham Police Department sent personnel to the scene, where they found Quarels’ body.

Mr. Quarels and Ms. Mitchell had been drinking and Hubbard had seen them together the previous night at a party. He testified that they argued often, and that it was his opinion that they were both drunk when they came in that morning.

Detective Ann Ballard, of the Birmingham Police Department, testified that on July 17, at about 8:10 or 8:15 a.m., after advising Ms. Mitchell of her rights, she took a tape recorded statement from her.

In her statement, Ms. Mitchell said that she and Mr. Quarels always argued and that on the morning in question she and Quarels had been drinking and arguing. She got a sharp knife from the kitchen, and, planning to cut him on the arm to “shut him up for a while,” she hit him with a knife. She stated that she had not realized she cut him till after Hubbard stopped her and took the knife away. When she realized that Mr. Quarels was injured she ran to a neighbor’s house where she remained until the police came for her.

Testimony revealed that Ms. Mitchell had been without sleep for some twenty-three or twenty-four hours and that she had been drinking the night before and that she was upset at the time of making the statement. It was also shown that she was properly advised of her rights, and there was no evidence indicating that she was mistreated in any way, or that any promise of any kind was made to her to induce her to make a statement.

Appellant raises six issues for consideration on appeal. The first issue raised is whether it was error for the court to permit the State to use its peremptory challenges to exclude all black females from the jury. (Apparently, there was a black male on the jury.) At the hearing on appellant’s motion for new trial, appellant’s counsel asserted that the district attorney in the case had, in violation of appellant’s constitutional rights, systematically excluded Black females from the jury.

This issue has been addressed many times and it is clear that it is not error for a prosecuting attorney to strike a jury on the basis of race. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Robinson v. State, 428 So.2d 167 (Ala.Cr.App.1982); Carpenter v. State, 404 So.2d 89 (Ala.Cr.App.1980), cert. denied, 404 So.2d 100 (Ala.1981); and eases cited therein.

In an extensive discussion of the history and purposes of the peremptory challenge in jury selection, this court, in Allen v. State, 414 So.2d 163, 168 (Ala.Cr.App.1982), held that “[n]o appellate court should attempt to second guess the prosecution’s use of its peremptory challenges.”

In Swain v. Alabama, supra, the Supreme Court recognized the possibility that constitutional rights may be violated by a State’s deliberate and continued exclusion of Blacks from juries through the use of peremptory challenges. The court added, however, that a defendant bears a heavy burden when he seeks to show systematic discrimination of constitutionally significant magnitude. There is, in fact, a presumption in any particular case that the district attorney used the State’s peremptory challenges to obtain a fair and impartial jury. Swain v. Alabama, supra; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).

Appellant cites State v. Brown, 371 So.2d 751 (La.1979), where the court found that the defense made out a prima facie case, unrebutted by the State, that there had been systematic exclusion of blacks from the particular petit jury and from prior petit juries. The defense in Brown, supra, presented several witnesses who testified to a systematic and continuing practice of such exclusion of Blacks; hence, the case was reversed and remanded for a new trial.

In this case, appellant offered no proof by way of statistics, facts or testimony from any witness that there existed any continued and systematic exclusion of Blacks from petit juries. Inasmuch as appellant proffered mere unsubstantiated allegations, her argument that the State’s peremptory challenges were unconstitutional is untenable.

The second issue raised by appellant is whether the trial court erred in denying appellant’s motion to suppress her inculpa-tory statement.

It is a well settled rule of law in Alabama that a statement made subsequent to arrest is prima facie involuntary and inadmissible at trial, and that the State must demonstrate voluntariness and a Miranda predicate in order to get admission of the statement. Thomas v. State, 373 So.2d 1167 (Ala.1979); Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976). The voluntariness of a statement is, however, a question of law to be determined by the trial court upon preliminary proof and that court’s decision will not be disturbed on appeal unless it appears contrary to the great weight of evidence, or is manifestly wrong. Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.1976), cert. denied, 339 So.2d 1070 (Ala.1976); Daniels v. State, 53 Ala.App. 666, 303 So.2d 166 (Ala.Cr.App.1974); Stewart v. State, 49 Ala.App. 681, 275 So.2d 360 (1973).

There is ample evidence whereby the court could have determined that appellant’s statement was voluntarily given. Thus, the trial court’s decision on the issue must be upheld.

The third issue raised is whether the trial court committed error in admission of State’s exhibits six and seven, which were photographs of the knife which killed the victim, and of the deceased.

The test for determining admissibility of a photograph is whether it is a true and accurate representation of the subject which it purports to represent, as it existed at the time pertinent to inquiry. Elmore v. State, 414 So.2d 175 (Ala.Cr.App.1982); Osborn v. Brown, 361 So.2d 82 (Ala.1978).

The court in Osborn, supra, held that “... the determination as to the sufficiency of the preliminary proofs offered to identify the photograph or show that it is an accurate representation of the objects which it purports to portray is a matter within the sound discretion of the trial court and will not be reviewable except for gross abuse,” at 86. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.) cert. denied, 397 So.2d 208 (Ala.1981); Carpenter v. State, 400 So.2d 427 (Ala.1981); Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

Generally, photographs are admissible if they are verified by a person familiar with the subject matter of the photograph and if they are relevant to some disputed or material issue, illustrate or elucidate some other relevant fact or evidence, or corroborate or contradict some other evidence offered. Photographs may also be admitted if they have some tendency to shed light on, strengthen, or illustrate other testimony in the case. Donner v. State, 409 So.2d 461 (Ala.Cr.App.1981).

Testimony of the State’s witness established that the photographs correctly depicted the scene at the time they were taken. Both the murder weapon and the victim’s body were certainly relevant in this trial. We find no abuse of discretion.

The fourth issue raised by appellant is whether the trial court erred in sentencing her to twenty years in the penitentiary under § 13A-5-6(a)(4) Code of Alabama 1975.

Appellant was convicted of murder, which is a class A felony under § 13A-6-2(e), Code of Alabama 1975. In regard to sentencing in Class A felony convictions, § 13A-5-6 reads in pertinent part:

“(4) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, not less than 20 years.”

Appellant argues that this section is not mandatory and should not be applied in her case since there were mitigating factors involved. The factors she specifies as mitigating were: the fact that the incident occurred at four or five o’clock in the morning, the drinking bout which preceded the murder, the fact that there was a “domestic” quarrel, and that the murder weapon was a knife kept in the kitchen, as opposed to being a pistol, firearm or other deadly weapon.

We find the language of the applicable statute clear and its meaning plain. The jury in this case, with all mitigating factors before them, found Ms. Mitchell guilty of murder. The knife used by Ms. Mitchell certainly qualified as a deadly weapon. Thus, sentencing under § 13A-5-6(a)(4) was proper.

The fifth issue appellant raised is whether use of a chart by the trial court in its oral charge to the jury constituted reversible error. There was no objection made at trial to the use of the chart, and hence, no adverse ruling to be reviewed. The correctness of the trial court’s oral charge cannot be challenged for the first time on appeal. Jackson v. State, 375 So.2d 558 (Ala.Cr.App.1979); Hafley v. State, 342 So.2d 408 (Ala.Cr.App.), cert. denied, 342 So.2d 412 (Ala.1977); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967).

Lastly, appellant contends that the prosecutor’s closing arguments were prejudicial and thereby denied appellant due process.

The parts of the prosecutor’s closing argument which appellant objects to were as follows:

“(1) MR. BOUDREAUX: So, what’s the defense in this case? Well, it’s what I call a multiple choice defense. Mr. Johnson, he figures well, it can’t be alibi because she was caught there at the scene and confessed to it. So, what have we got left? We have got self-defense or insanity.
“MR. JOHNSON: Now, Judge, I’m going to object to this. There is no insanity in this case. And I think this is highly improper.
“THE COURT: He’s talking about what lawyers do, I guess, sometimes, in these cases. I might urge you to perhaps get away from this area. But I’m not going to sustain your objection at this time, Pete.
“MR. JOHNSON: We respectfully except.
“MR. BOUDREAUX: When we get all of these defenses that you can elect from, the defense attorney has got to pick one that he thinks the jury will buy.
“MR. JOHNSON: Now, Judge, I object to this. I think this is improper argument.
“THE COURT: Scott, I don’t think that you can impute to Mr. Johnson any type of suggestion that he might do something inappropriate or improper to manufacture evidence or fictionalize the defense. So, I will sustain.
“MR. BOUDREAUX: I wasn’t trying to imply that, Your Honor. I’m just trying to discuss with the jury the options open in this case—
“THE COURT: All right.
“MR. BOUDREAUX: She’s a murderer.
“MR. JOHNSON: Judge, I object to that improper argument.
“THE COURT: What crime was committed, if any, ladies and gentlemen, is exclusively your province to determine.
“MR. BOUDREAUX: But when you go home and talk to your friends and neighbors you can tell them that you done your good deed and you cut another one loose.
“MR. JOHNSON: Judge, I object to this improper argument.
“THE COURT: All right. Let’s move on.”

This court held in Sprinkle v. State, 368 So.2d 554, 561 (Ala.Cr.App.1978), cert. denied, 368 So.2d 565 (Ala.1979): “Trials are adversary in nature and a vigorous prosecution and defense is to be expected. Neither side should be hampered too closely in making its particular presentation.” (citations omitted)

In addition, the trial judge in a criminal prosecution has broad discretion in controlling closing arguments. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981); Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Smith v. City of Birmingham, 36 Ala.App. 72, 52 So.2d 394 (1951). Each case must necessarily be determined on its own peculiar facts, and the trial judge, who is in the best position to determine when closing arguments are prejudicial and what curative measures are called for, is given wide discretion. Hurst, supra; Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958).

After careful consideration pf the record before us, we cannot hold that, as a matter of law, the trial court abused its discretion during the prosecutor’s closing arguments.

We have examined each issue raised by appellant, and we have searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction and sentencing is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HUBERT TAYLOR, Judge.

license: Public Domain

text:
    Benny Ray JONES v. STATE.
    6 Div. 194.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-640.

      Roger C. Appell and David W. Haines, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant, Benny Ray Jones, was convicted of robbery in the first degree and sentenced to life imprisonment without parole. The issue on appeal is whether a denial of a pretrial plea of former jeopardy is immediately appealable.

Jones contends that the denial of his plea is a final judgment within the meaning of § 12-22-2, Code of Alabama 1975, and immediately appealable based on the authority of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The right of appeal in a criminal case is wholly statutory and the statutes granting it are strictly construed. Bell v. State, 367 F.2d 243 (5th Cir.1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967); State v. Gautney, 344 So.2d 232 (Ala.Cr.App.1977). The more specific, and therefore controlling, statute dealing with this subject is § 12-22-130, which indicates that a person must be convicted before he can appeal. This is in accord with all of the case law from our State.

Although the briefs submitted to this court were not helpful on this point, the issue has been decided in several other jurisdictions. In People ex rel. Mosley v. Carey, 74 Ill.2d 527, 25 Ill.Dec. 669, 387 N.E.2d 325, cert. denied, 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306 (1979), the Supreme Court of Illinois held that Abney, supra, did not constitutionally require the states to grant immediate appellate review of a pretrial denial of a plea of former jeopardy. We agree. Unlike the statute relied on in Abney, the statute relied on by Jones pertains almost exclusively to civil matters.

Additionally, the Kansas Court of Appeals in State v. Fisher, 2 Kan.App.2d 353, 579 P.2d 167 (1978), made the same distinction. That court noted that the federal statute applied to both civil and criminal cases, while Kansas had separate statutes for each type of ease. The court went on to note, appropriately so, that the Abney case did not determine whether there was a constitutional right to appeal from the denial of a pretrial motion to dismiss an indictment on the grounds of double jeopardy, but whether such denial was a final decision within the meaning of the federal statute.

Although we realize there is a split of authority, we take the view that a denial of a pretrial motion based on a plea of double jeopardy is not immediately appeala-ble.

The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.

      . State v. Jenich, 94 Wis.2d 74, 288 N.W.2d 114 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); El Paso v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977); Gray v. State, 36 Md.App. 708, 375 A.2d 31 (1977).


text:
    Billy Franklin OLIVER v. STATE.
    8 Div. 875.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-660.
    Chas. S. Rodenhauser, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Phillip C. Davis, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Billy Franklin Oliver, was convicted of buying, receiving or concealing stolen property and sentenced to twenty years in the penitentiary.

Linda McBride testified that a Sears Kenmore microwave oven was taken from her home on March 1, 1982, and was returned to her husband by a policeman at some later date. State’s evidence tended to show that Oliver was involved in a sale of a microwave oven on approximately the same date. There was no evidence presented at trial that the microwave oven sold by Oliver was the same microwave oven taken from Mrs. McBride.

In Parker v. State, 386 So.2d 495, 496 (Ala.Cr.App.1980), this court said, “There must be some evidence of common characteristics other than color, make, and model ... in order to establish identity_ The identity of the property received or concealed with that alleged in the indictment to be stolen must be established beyond a reasonable doubt to support a conviction _” (Original emphasis.) In the case sub judice, we do not even have evidence that the microwave oven was the same model or color.

Because the State “utterly failed” to make out a case of buying, receiving or concealing stolen property, the judgment of the lower court must be reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Jerry Anthony SPARKS, alias Jerry Sparks v. STATE.
    8 Div. 937.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-687.

      Dave Beuoy, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

On September 29, 1982, Jerry Anthony Sparks, the appellant, shot his ex-wife, Donna Berryman Sparks, five times with a .38 caliber pistol. Sentence was life imprisonment. Seven issues are raised on appeal.

I

Sparks contends that he should have been granted a change of venue because thirty-one members of the jury ve-nire stated that they had either heard of, read about, or discussed the case.

The motion for change of venue was properly denied. As a procedural matter, the motion was not verified under oath and did not set forth specifically the reasons why a fair and impartial trial could not be had in Franklin County. Alabama Code Section 15-2-20 (1975).

Additionally, the defendant failed to sustain his burden of proof. Here, as in Murphy v. Florida, 421 U.S. 794, 802-03, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975), and Dobbert v. Florida, 432 U.S. 282, 301-03, 97 S.Ct. 2290, 2302-03, 53 L.Ed.2d 3.44 (1977), there was no showing that “the trial setting was inherently prejudicial or that the jury selection process permitted an inference of actual prejudice.” Dobbert, 432 U.S. at 302, 97 S.Ct. at 2303. Sparks has not shown that the pretrial publicity either prejudiced an individual juror who was not struck for cause or caused pervasive hostility within the community. The fact that jurors have knowledge of a case does not automatically establish their prejudice or bias. Anderson v. State, 362 So.2d 1296, 1300 (Ala.Cr.App.1978). See also Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982), affirmed, Ex parte Magwood, 426 So.2d 929 (Ala.), cert. denied, Magwood v. Alabama, — U.S. -, 103 S.Ct. 3097, 74 L.Ed.2d 1355 (1983). The existence of widespread publicity in and of itself does not require a change of venue. Hopkins v. State, 429 So.2d 1146 (Ala.Cr.App.1983).

“But under Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a ‘trial atmosphere ... utterly corrupted by press coverage,’ Murphy v. Florida, supra, 421 U.S., at 798, 95 S.Ct. at 2035. One who is reasonably suspected of murdering his children cannot expect to remain anonymous.” Dobbert, 432 U.S. at 303, 97 S.Ct. at 2303.

The trial judge had the best opportunity to assess the prejudicial nature, if any, of the publicity given Sparks’ murder of his ex-wife. No abuse of the judge’s discretion in denying the motion has been demonstrated and his decision must be affirmed. Johnson v. State, 433 So.2d 473, 478 (Ala.Cr.App.1982), affirmed, 433 So.2d 479 (Ala.1983).

II

Fourteen of the veniremen stated that they had formed an opinion about the case. Sparks argues that his challenge for cause to each of these jurors should have been granted. Alabama Code Section 12-16-150(7) (1975). We disagree.

The voir dire of the jury was extensive. The record reveals that the trial judge examined those veniremen who indicated that they had formed an opinion and determined that those opinions were not “fixed” so as to render them biased or prejudiced to the accused. The judge granted a challenge for cause to those veniremen whose fixed opinions would influence their verdict and not allow a decision based solely on the evidence presented at trial.

“It is not the mere fact that a person has a personal or fixed opinion as to any of the issues involved in a criminal prosecution which renders that person incompetent to serve as a juror. However, a person is not qualified to serve as a juror where his opinion is so fixed that it would influence his decision so that he could not lay aside his opinion and try the case fairly and impartially according to the law and the evidence.” Gwin v. State, 425 So.2d 500, 503 (Ala.Cr.App.1982), writ quashed, 425 So.2d 510 (Ala.1983).

III

Sparks’ requested jury charge on criminally negligent homicide was properly refused. The shooting in this ease involved no inadvertent risk creation. The killing was not accidental. Phelps v. State, 435 So.2d 158, 164-66 (Ala.Cr.App.1983).

Sparks’ own testimony reveals that he deliberately shot his ex-wife five times at close range and that he “really don’t know why” he shot her. All the evidence showed that Sparks and his ex-wife had been arguing over an amount of delinquent child support payments which Sparks owed her pursuant to a divorce decree. Here, there was simply no rational basis for a verdict of criminally negligent homicide. Alabama Code Section 13A-l-9(b) (1975).

IV

Immediately before the State called the last witness on its case in chief, defense counsel requested a mistrial based upon the alleged conduct of a circuit court judge, who had been the District Attorney, in qualifying and excusing jurors. That request was:

“MR. BEUOY (Defense Counsel): Judge, it has come to my attention since the time that we struck the jury and began the trial of this case that Judge John Jolly did some of the qualifying of jurors, and excused certain jurors from service for this week. Judge Jolly was the prosecuting attorney in this case at the preliminary hearing and was actively involved in the case up until the time he took the bench as Judge. We think his involvement to that extent is improper. We think it has resulted in potential bias or prejudice of jurors remaining against this Defendant, and at this time based upon this, we move for a mistrial.”

Other than these allegations of defense counsel, the record only shows that Jolly, as District Attorney, endorsed the indictment. The record also shows that the judge who actually presided over Sparks’ trial was a “special judge” who was appointed as a result of Judge Jolly’s “having some connection with this case that prevented him from being able to sit on this case as a judge.”

The general rule is that “a judge who, before his elevation to the bench, was a prosecuting officer, and who actively participated in the prosecution of the accused, was disqualified from sitting at the trial of the case.” Annot., 72 A.L.R.2d 443, 503-04 (1960). “In most of the cases it has been held that a judge who, as prosecuting officer, signed án information or indictment, was disqualified from sitting in the case.” 72 A.L.R.2d at 508. See also Annot., 16 A.L.R. 4th 550 (1982). Without question, Judge Jolly was disqualified from trying this case because of his prior activities as prosecuting attorney in the same ease.

In Salm v. State, 89 Ala. 56, 8 So. 66 (1890), it was held that the incompetency of a judge to try a particular case extends to all preliminary proceedings, such as drawing the jurors and setting the day of trial. However, in that case the actions of the disqualified judge, who did not try the case, on the preliminary matters were taken over the objection and exception of defense counsel on the grounds of incompetency.

Here, we find that defense counsel's motion for a mistrial raising this issue was filed too late. This is an issue which should have been raised at the “earliest opportunity.” Baker v. State, 52 Ala.App. 699, 700, 296 So.2d 794 (1974). If the facts causing disqualification are known, objection must be made before issue is joined and the trial is commenced, otherwise the accused will be deemed to have waived the objection. De Moville v. Merchants & Farmers Bank, 237 Ala. 347, 352, 186 So. 704 (1939); Collins v. Hammock, 59 Ala. 448, 452 (1877). This information could have been discovered before trial with the exercise of due diligence.

This Court takes judicial notice that Franklin County has only one circuit judge. Defense counsel was appointed to represent Sparks in December of 1982 after his indictment in November. However, Judge Jolly took office in January of 1983. See Alabama Reporter, 418-420 So.2d at XIV. The record does not reveal when or if Judge Jolly qualified the jury venire or when or if he excused some jurors. There is also no showing when the special trial judge was appointed. Likewise, the record is devoid as to whether Judge Jolly recused himself on his own motion or on that of defense counsel.

Here, the objection to Judge Jolly’s alleged actions was made after the State had almost completed its case in chief. Although this issue was also raised in a motion for new trial, there was no attempt to establish either that Judge Jolly actually qualified the venire or excused some veniremen or that his alleged actions caused or resulted in prejudice. In fact, no argument or evidence was presented in support of any ground of the motion for new trial which was denied by operation of law as authorized by A.R.Crim.P.Temp. 13(d). Where no evidence is taken in support of a motion for new trial, a reviewing court can consider only the record of the trial in chief. Hayes v. State, 33 Ala.App. 364, 370, 33 So.2d 744 (1948).

In arguing his request for mistrial, defense counsel stated:

“I meant there was a possibility some jurors that might have been more receptive to the Defense may have been excused. I don’t know who was excused. I’ve got a master jury list, some of them probably weren’t served, some were excused for medical reasons, some deceased, but I’m sure some of them called and talked with Judge Jolly and his staff and were excused from service for various reasons. The reasons may have nothing to do with the case, but it’s simply the fact Judge Jolly, who had been prosecutor in this case, did talk with jurors, did qualify the jury initially in this case, and I think his overstepping of the judicial function I think he can’t act as both prosecutor and judge in the case, which in effect is what he has done in qualifying this jury.”

Upon these general and speculative allegations of defense counsel, unsupported by evidence, we are unwilling to predicate a reversal of this conviction. Cf. Daniels v. State, 416 So.2d 760, 762 (Ala.Cr.App.1982) (no error in overruling motion for new trial where there was nothing in the record, apart from objections and motions of defense counsel, to support allegation of trial judge’s misconduct); Adams v. State, 29 Ala.App. 547, 198 So. 451 (1940). Statements made by counsel are not evidence. Hale v. State, 355 So.2d 1158, 1160 (Ala.Cr.App.1978) (“Where the appellant moves to quash the indictment upon grounds which involve matters outside the record, there is nothing presented to this Court for review.”). See also Dunaway v. State, 291 Ala. 93, 278 So.2d 205 (1973) (record did not support defendant’s claim that he was required to strike from the same venire which had just witnessed his trial for a different offense); Taylor v. State, 249 Ala. 130, 136, 30 So.2d 256 (1947) (the record did not support alleged error regarding excusal of jurors); Jones v. State, 209 Ala. 655, 96 So. 867 (1923) (when ground of motion for new trial complaining that list of veniremen served on defendant did not contain names of two veniremen was supported by nothing in the record, there was nothing for review). “Whether or not a mistrial should be granted is within the sound discretion of the trial judge who is in a position to determine what effect, if any, some occurrence may have had on a jury’s ability to decide an accused’s fate fairly and justly.” Donley v. City of Mountain Brook, 429 So.2d 603, 616 (Ala.Cr.App.1982), reversed on other grounds, 429 So.2d 618 (Ala.1983).

V

The trial judge properly denied Sparks’ request for a continuance.

Sparks entered pleas of not guilty and not guilty by reason of insanity to the indictment on December 17, 1982.

On December 21st, counsel filed a “motion for mental examination of defendant” which was granted that same date. On the first of February 1983, counsel requested a continuance, alleging that “on or about January 29, 1983, defendant’s attorney received written notification from the Department of Mental Health stating that they would not examine this defendant as ordered by the Court.” An explanation of this refusal to examine Sparks is not contained in the record. Counsel alleged that the defense had not had an adequate time to prepare a defense.

At trial, after the defense had rested its case, the plea of not guilty by reason of insanity was withdrawn without comment or explanation by defense counsel. In testifying in his own behalf, Sparks testified that he did not think he was crazy but could not “really say at that moment why I shot her.” When the prosecutor attempted to delve into Sparks’ mental condition, defense counsel objected:

“Q. Mr. Sparks, you made a plea of not guilty by reason of insanity. Weren’t you examined by a psychiatrist shortly after this?
“A. Yes, I was.
“Q. Dr. Glaister?
“A. Yes, I was.
“Q. Didn’t he say you were sane at that time?
“MR. BEUOY: I object, and move for a mistrial at this time.
“THE COURT: Well, I sustain the objection.
“MR. BEUOY: Move for a mistrial.
“THE COURT: I sustain the objection and deny the motion.”

Based on the transcript before this Court, it is obvious that we have not been presented with a complete factual record of what actually occurred at trial. Although this issue was also raised by motion for new trial, no evidence was offered to support the bare allegations of counsel. A motion for continuance is addressed to the sound discretion of the trial judge and the exercise of that discretion will not be disturbed unless clearly abused. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973). Here, the record simply does not show any abuse of discretion. From the record, we can only conclude that, after having been examined by a psychiatrist, Sparks and his counsel made the tactical decision not to pursue a defense of insanity at trial.

VI

Sparks also argues that the trial court “erred in not taking appropriate curative action when it was learned that one of defendant’s witnesses had been threatened by the prosecution.” As with the two preceding issues, this contention is not supported by the record. That record only reveals the following in regard to this issue:

“MR. BEUOY: I understand that Peggy Sparks, the wife of this Defendant, has also been charged with the crime of murder as a co-defendant. I further understand that there have been discussions relating to settlement of her case, and an offer made by the district attorney to her and her attorney for the settlement of that case. This particular' individual was subpoenaed by the State as a witness in this case, and then yesterday after Court recessed, or adjourned for the day, the district attorney informed Jerry Porch, counsel for Peggy Sparks, that if she testified on behalf of her husband in this case, that the deal he had offered was off, and based upon that, we have chosen not to call that particular witness to testify in this case.”

This issue is not preserved for review.

At trial, there was no objection raising the issue now presented; neither was there any request for “appropriate curative action.”

There was never any attempt made to substantiate defense counsel’s “understanding”. Although this Court does not question counsel’s truthfulness or honesty, the present state of the record does not allow us to make an intelligent decision on this issue.

What we said in Gilbert v. State, 401 So.2d 342, 343 (Ala.Cr.App.1981), is applicable here: “From the record it is not absolutely clear to this Court exactly what did occur in the trial court. At any rate it is certain that the record does not reflect any factual basis for the defendant’s objection. In view of this fact there is nothing for this Court to review.”

This Court can consider the case only as presented in the record. Jackson v. State, 260 Ala. 641, 71 So.2d 825 (1954). We will not presume a fact not shown by the record and make it a ground for reversal. Williams v. State, 412 So.2d 1274 (Ala.Cr.App.1982). “It is the appellant’s duty to present the points he intends to raise upon the record, with reasonable certainty. If this is not done, so as to enable this Court to decide, without danger of mistake, the exceptions taken in the court below, or point reserved, will be disregarded, for uncertainty.” McCullough v. State, 357 So.2d 397, 398-99 (Ala.Cr.App.1978).

Our review convinces this Court that Sparks received a fair trial and the judgment of the circuit court is due to be affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Adolphus WEDGEWORTH, alias v. STATE of Alabama.
    6 Div. 20.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-695.
    Larry Waites, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Attys. Gen., for appellee.
   TYSON, Judge.

Adolphus Wedgeworth was indicted for the murder of one Lenora May Wedge-worth in violation of § 13A-6-2, Code of Alabama 1975. The jury returned a verdict of guilty as charged in the indictment and the trial court sentenced him to 15 years’ imprisonment.

The evidence shows that the appellant and the deceased’s father, Frank May, drove around drinking on the afternoon of July 19, 1980. Later that same afternoon the appellant went to the home of his ex-wife, Lenora May Wedgeworth, to talk to her. During this visit, the appellant shot Ms. Wedgeworth, causing her to sustain injuries from which she subsequently died. The appellant left the house and subsequently disposed of the gun. Upon learning that Ms. Wedgeworth had died, the appellant turned himself in to the police.

The sufficiency of the evidence is not challenged by the appellant and after a review of the record in this cause we find no error prejudicial to the appellant.

I

The appellant argues on appeal that the trial court committed reversible error in allowing the prosecution to question the appellant’s character witnesses as to a pri- or specific misdeed of appellant. '

The general rule in such a case as this is that if a witness testifies, at the calling of the accused, to the accused’s good general reputation as a whole, the State may, on cross-examination, ask him whether prior to the time of the alleged offense, he heard reports, rumors or statements derogatory as to the accused. The purpose of the State’s capacity to do this is not to prove the bad reputation or character of the accused, but to test the credibility of the character witness. Gamble, McElroy’s Alabama Evidence, § 27.01(5), 1975 and cases cited therein. In so doing, the State may inquire as to specific acts of the accused and this may include prior convictions. Frazier v. State, 366 So.2d 360 (Ala.Cr.App.1978); Jackson v. State, 353 So.2d 40 (Ala.Cr.App.), cert. denied, 353 So.2d 48 (Ala.1977); Crowe v. State, 333 So.2d 902 (Ala.Cr.App.), cert. denied, 333 So.2d 906 (Ala.1976); Travis v. State, 397 So.2d 256 (Ala.Cr.App.), writ denied, 397 So.2d 265 (Ala.1981).

The form of the question asked by the State should be “Have you heard” of such occurrence prior to the commission of the offense for which the defendant is on trial. Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (Ala.Cr.App.1972); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Ragland v. State, 178 Ala. 59, 59 So. 637 (1912). In the present cause the State asked the following questions of the accused’s character witnesses after they had testified to the accused’s good general reputation:

(On cross-examination of Bernie L. McHugh) (R. 266-267)
“Q. Let me ask you this: You have known him for 20 years. Prior to July the 19th, 1980 had you heard rumors and reports in the community out there where he worked that he had been arrested for grand larceny?
“A. No, sir, I haven’t.
“Q. You had not heard that?
“A. No, sir.”
(On cross-examination of John Hawkins) (R. 269)
“Q. Mr. Hawkins, let me ask you this: You say you have known him 22 years?
“A. Yes, sir.
“Q. Has that been primarily out there at work at Connor’s Steel?
“A. Yes, sir.
“Q. Y’all didn’t get together socially away from work or go to each other’s home or visit with each other?
“A. Yes, sir, we have.
“Q. Prior to July the 19,1980 had you heard rumors and reports out there in the community where you work with him, and more specifically on March the 3, 1961, Mr. Wedgeworth was convicted of grand larceny?
“A. No, sir.
“Q. You did not know that?
“A. No. sir.”

It is clear from our examination of the record and from the foregoing authorities, that the trial court committed no error in allowing the above questions. Therefore, the judgment of conviction is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    David H. BENTLEY v. STATE of Alabama.
    8 Div. 925.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Clyde Baker, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg and Michael Bownes, Asst. Attys. Gen., for appellee.
   ON REHEARING

TYSON, Judge.

The opinion of this court entered on January 31, 1984, is hereby withdrawn and the following is hereby substituted therefor on rehearing.

David H. Bentley, a licensed practitioner of veterinary medicine, was indicted for unlawfully prescribing, administering, or dispensing Hydromorphone (Dilaudid), a controlled substance, so placed under control by the Board of Health of the State of Alabama by § 20-2-20 of the Code of Alabama, as last amended, in violation of the Alabama Uniform Controlled Substances Act and § 20-2-74(a) of the Code of Alabama 1975. The jury found the appellant “guilty as charged”, and the trial court sentenced him to ten years’ imprisonment, of which he is to serve thirty days in the Marshall County Jail, with the remainder of the sentence suspended, and placed on probation for a term of five years.

The appellant raises three issues on appeal.

I

The appellant contends that his motion to quash the jury verdict and his challenge as to seating certain jurors who resided in the Guntersville division of Mar-shall County rather than the Albertville division was error and cites us to the Act approved August 18, 1909 (Special Session, Acts 1909, p. 16) and Alabama Local Acts No. 23, p. 12 (1919).

Local Act No. 137, Acts of Alabama 1936 at page 78, specifically provides that:

“[T]he Jury Commission for Marshall County, or persons hereafter authorized to draw jurors for the Circuit Courts of Albertville and at Guntersville shall provide one jury box only for both courts.”

Thus the requirement for having separate jury boxes for the two divisions was repealed and is no longer in force and effect. Therefore, no error resulted from using jurors from one division within the county from the other division.

II

The appellant argues that his conviction was based on an involuntary confession made during custodial interrogation, which involuntariness would, under the statement, be inadmissible in court. We have carefully examined the record and the voir dire examination wherein the statement was inquired into outside the presence of the trial jury. The appellant contends that he made a confession on the promise of Sheriff’s Detective A.G. Lang to have his bond reduced. Officer Lang testified that he never made any promises at all to the appellant. Officer Whitten testified that he knew of no promises being advanced. We are of the opinion that the trial judge’s conclusion that the appellant’s statement was voluntary was adequately supported by the facts, and that the trial judge properly admitted the appellant’s statement into evidence. It is the province of the trial judge to first determine the voluntariness of a statement in a voir dire examination outside the presence of the jury, and unless there is a clear abuse this decision will not be overturned. Snider v. State, 422 So.2d 807 (Ala.Cr.App.1982); Hardy v. State, 409 So.2d 996 (Ala.Cr.App.1982); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (Ala.Cr.App.1973); Shewey v. State, 48 Ala.App. 730, 267 So.2d 520 (Ala.Cr.App.1972).

Moreover, the record shows that the appellant was advised of his Miranda rights by Officers Lang and Whitten and that he freely and intelligently signed a waiver of rights form. See Shorts v. State, 412 So.2d 830 (Ala.Cr.App.1981); Hardy v. State, supra.

Ill

The appellant’s final contention is that the State failed to adequately substantiate that Hydromorphone (Dilaudid) was a controlled substance on the date of the offense. The State attempted to show that Hydromorphone (Dilaudid) was a controlled substance by the introduction into evidence of copies of the State Board of Health’s list of controlled substances. The appellant specifically argues that the State failed to prove such because they failed to lay a proper foundation to authenticate the document. The documents introduced over defense counsel’s objections were copies of records of the State Board of Health certified as true records by the State Health Officer, who has lawful custody of those records. Certified copies of public records, signed and certified by the officer who has lawful custody, are properly authenticated and admissible into evidence. Ballenger v. State, 406 So.2d 995 (Ala.Cr.App.), writ denied, 406 So.2d 998 (Ala.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164; Harmon v. State, 420 So.2d 299 (Ala.Cr.App.1982); Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975); Gamble, McElroy’s Alabama Evidence, § 218.01 (1977).

IV

The appellant further argues that the trial court committed error in its oral charge to the jury when the court stated:

“I charge you at this time, ladies and gentlemen, that dilaudid or hydromor-phone is a controlled substance, and it is in schedule 2 of the Code of Alabama. Therefore, that element is not necessary to prove. I charge you that it is a controlled substance.”

This charge was objected to by defense counsel on the grounds that there was no evidence that Hydromorphone (Dilaudid) was a controlled substance and the court could not take judicial notice of such. This argument is without merit. The trial court can properly take judicial notice of whether a substance is designated as a controlled substance and can so instruct the jury. Gilbert v. State, 401 So.2d 342 (Ala.Cr.App.1981); Harmon v. State, supra; United States v. Berrojo, 628 F.2d 368 (5 Cir.1980). Therefore, after review of the authorities we can find no error in either the introduction of the documents into evidence or in the trial court’s oral charge.

We have carefully searched this record and find no error. This judgment is therefore affirmed.

APPLICATION FOR REHEARING GRANTED; AFFIRMED.

All the Judges concur.


author: ADKINS, Justice. McDONALD, Justice,

text:
    Eligaah Ardalle JACOBS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent.
    No. 62595.
    Supreme Court of Florida.
    Feb. 23, 1984.
    Rehearing Denied June 14, 1984.

      Patrick D. Doherty of Gross & Doherty, Clearwater, and Robert E. Gerber and Mary Gilmore of Fried, Frank, Harris, Shri-ver & Jacobson, New York City, for petitioner.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for respondent;
   ADKINS, Justice.

We have before us a petition for a writ of habeas corpus. The petitioner is now imprisoned under sentence of death pursuant to judgment and sentence affirmed by this Court in Jacobs v. State, 396 So.2d 1113 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). We have jurisdiction. Art. V, § 3(b)(9), Fla. Const.

The petitioner, Jacobs, alleges that he was subject to ineffective assistance of appellate counsel. He bases this allegation on claims of eleven perceived failings of his counsel. We will assess Jacobs’ claims according to the principles of Knight v. State, 394 So.2d 997 (Fla.1981). In Knight, we adopted the four step process which is encompassed in United States v. DeCoster (DeCoster III), 624 F.2d 196 (D.C.Cir.1979) (en banc). Since Knight, those elements must be present in order to demonstrate ineffectiveness of counsel.

We will not involve ourselves in an examination of the performance of Jacobs’ trial counsel. Whether trial counsel’s omissions were strategic or negligent can only be determined by the trial court pursuant to a motion for post-conviction relief, Fla.R.Crim.P. 3.850, subject, of course, to appellate review.

Jacobs first alleges that his appellate counsel erred in failing to argue that the trial court’s exclusion or nonstatutory mitigating factors at sentencing was error. There was no proffer of the attempted testimony after the trial judge excluded it. The purpose of a proffer is to put into the record testimony which is excluded from the jury so that an appellate court can consider the admissibility of the excluded testimony. Reversible error cannot be predicated on conjecture. Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); See Singer v. State, 109 So.2d 7 (Fla.1959). Jacobs’ appellate counsel failed to raise an issue which he was procedurally precluded from raising and cannot be considered incompetent for doing so.

Jacobs next alleges that appellate counsel erred in failing to move for a resen-tencing upon rehearing, on the authority of Elledge v. State, 346 So.2d 998 (Fla.1977), after this Court had found an improper doubling of aggravating circumstances in the sentencing phase. We addressed this issue in Jacobs’ direct appeal, 396 So.2d at 1119, and decided that Elledge did not apply in this instance. Remand for resen-tencing is not necessary every time an aggravating factor is stricken. Armstrong v. State, 429 So.2d 287 (Fla.1983). A motion for rehearing shall not reargue the merits of the Court’s order. See Fla.R.App.P. 9.330(a). Appellate counsel’s failure to make this argument is not a serious deficiency measurably below that of competent counsel. It is no deficiency at all.

The next claim is that Jacobs’ appellate counsel failed to argue a violation of the Federal Constitution arising from denial of speedy trial. Appellate counsel did argue this issue based on the Florida Constitution and we resolved it finding no violation. 396 So.2d at 1116. Counsel’s failure to make the argument based on the Federal Constitution as well does not establish incompetence. Constitutional guarantees to a fair trial and competent attorney do not insure that defense counsel will raise every conceivable constitutional claim. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Francois v. State, 423 So.2d 357 (Fla.1982).

Jacobs also contends that the admission, in the sentencing proceeding, of trial testimony to the effect that Jacobs’ three accomplices were afraid of him constituted introduction of a nonstatutory aggravating factor. He contends that his appellate counsel erred in not raising this issue on appeal. We find this contention to be without merit in as much as section 921.141(1) provides for liberal admissibility of relevant evidence at the sentencing phase. Additionally, the trial judge mentioned only the statutory aggravating circumstances in instructing the jury.

Jacobs’ next seven errors complained of are as follows: 1) failure to argue error of failure to charge jury of need to prove aggravating circumstances beyond a reasonable doubt; 2) failure to argue improper jury charge as to party with burden of proof; 3) failure to instruct jury on nonstatutory mitigating factors; 4) failure to argue that the jury charge gave jury improper discretion (trial judge read the statutory aggravating and mitigating circumstances to the jury verbatim); 5) failure to argue lack of proper consideration of applicable statutory mitigating factors; 6) failure to argue that death sentence based on killing by co-participant was unconstitutional and improper under Florida law; and 7) failure to argue the cumulative effect of the errors in the sentencing phase. We find these allegations to be without merit. Each fails to either: 1) demonstrate any error on the part of appellate counsel; 2) demonstrate a serious deficiency, measurably below the standard expected of competent counsel; or 3) demonstrate a substantial error likely to have affected the outcome of the appeal. See Armstrong v. State; Straight v. Wainwright, 422 So.2d 827 (Fla.1982); Francois v. State; Knight v. State; Songer v. State, 965 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

We hold that the petitioner is not entitled to relief and deny the petition for writ of habeas corpus.

It is so ordered.

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

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

McDONALD, Justice,

concurring in part, dissenting in part.

I conclude that appellate counsel was ineffective when he failed to raise the issue of error in the trial judge’s exclusion of nonstatutory mitigating evidence at the sentencing proceeding. The right to submit nonstatutory mitigating evidence is afforded to all persons facing a sentence of death. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The majority opinion recognizes this right but holds that appellate counsel could not argue this point because there had been no proffer.

A general question of mitigating circumstances asked of the defendant was disallowed. The trial judge then made it unmistakably clear that only evidence of statutory mitigating circumstances would be allowed. Because the nature of the excluded evidence was apparent, a proffer of the nonstatutory mitigating circumstances should not be required to raise this issue on appeal. Because of this error I would grant relief and require a new sentencing hearing.

On all other issues I concur with the opinion.

OVERTON, J., concurs.


author: McDONALD, Justice.

text:
    STATE of Florida, Petitioner, v. Luis A. VAZQUEZ, Respondent.
    No. 63502.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied June 7, 1984.
    Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondent.
   McDONALD, Justice.

The state petitions for review of Vazquez v. State, 427 So.2d 1125 (Fla. 5th DCA 1983), on the basis of conflict with McLean v. State, 23 Fla. 281, 2 So. 5 (1887), and Winburn v. State, 28 Fla. 339, 9 So. 694 (1891). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash Vazquez.

The state charged Vazquez with aggravated assault, a third-degree felony. At trial the state attorney acknowledged that he would proceed on the lesser included offense of assault, a misdemeanor. After a nonjury trial, the court adjudicated Vazquez guilty of assault and imposed a fine.

On appeal Vazquez claimed that the circuit court had no jurisdiction to try him on a misdemeanor charge. The district court agreed, holding that the state had, in effect, nol prossed the felony charge, thereby divesting the circuit court of jurisdiction of the misdemeanor charge. The district court quashed the judgment and sentence and remanded for dismissal. We disagree with the district court’s ruling.

Section 26.012(2)(d), Florida Statutes (1981), gives exclusive original jurisdiction to circuit courts “[o]f all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.” As pointed out in both McLean and Winburn, jurisdiction in criminal cases is determined by the charge made in the indictment or information. The information against Vazquez charged him with committing a felony, thereby giving the circuit court jurisdiction over his case. When a felony is charged, a conviction of a lesser included offense is not void because the circuit court also has jurisdiction of all lesser included offenses. § 26.-012(2)(d); Winburn; McLean. Moreover, “[tjhere is no rule which requires the state to prove the [felony] charge for the court to retain jurisdiction.” Vazquez, 427 So.2d at 1127 (Upchurch, J., dissenting) (emphasis in original).

The central problem in this case is whether the state dropped the felony charge, thereby leaving only the misdemeanor over which, standing alone, the circuit court had no jurisdiction. We agree with Judge Upchurch that the state did not drop the felony charge against Vazquez. As stated in an opinion of the attorney general:

Nolle prosequi is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment, or as to part of a divisible count, or as to some of the persons accused, or altogether. Upon entry on the record, it amounts to a dismissal or nullification of the particular indictment or information and renders nugatory any proceedings carried on subsequently under the same indictment or information.

1958 Op. Att’y Gen. Fla. 058-169 (May 23, 1958) (emphasis supplied). The state made no formal entry on the record and, therefore, did not nol pros the felony charge. The words spoken by the trial court and the state attorney’s response are not sufficient to divest the circuit court of jurisdiction. If the defense had been .concerned about the procedure at the time, instead of only on appeal, it could have insisted that the state either present its case supporting the felony charge or else formally drop that charge on the record. We therefore quash the district court’s decision and remand for further proceedings consistent with this opinion.

It is so ordered.

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


author: BOYD, Justice.

text:
    CITIZENS GROWTH MANAGEMENT COALITION OF WEST PALM BEACH, INC., Appellant. v. CITY OF WEST PALM BEACH, INC., et al., Appellees.
    No. 63564.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied June 14, 1984.

      Albert J. Hadeed, John K. McPherson and William P. Healy of Southern Legal Counsel, Inc., Gainesville, for appellant.
    Carl V.M. Coffin, City Atty., West Palm Beach, for City of West Palm Beach.
    L. Louis Mrachek and David M. Layman of Gunster, Yoakley, Criser &- Stewart, Palm Beach, for the Goodman Co.
    James R. Wolf, General Counsel, Tallahassee, for Florida League of Cities.
    Stephen W. Metz, Florida Home Builders Association, Tallahassee, and Robert M. Rhodes of Messer, Rhodes & Vickers, Tallahassee, for Florida Home Builders Assn.
   BOYD, Justice.

We have for review the judgment of the circuit court in Palm Beach County rejecting the challenge of a citizens’ group (Citizens Growth Management Coalition of West Palm Beach) to a rezoning decision of the City of West Palm Beach. The citizens’ group appealed and the district court of appeal certified that the issues presented by the appeal are such that the determination thereof will have a great effect on the proper administration of justice throughout the state and that they require immediate resolution by this Court. We have jurisdiction pursuant to article V, section 3(b)(5), Florida Constitution. We find that the circuit court’s judgment was correct in all respects and we therefore affirm.

The appellant Citizens Growth Management Coalition is an incorporated association the membership of which includes residents, citizens, and taxpayers of West Palm Beach. The Coalition filed a complaint for injunctive and declaratory relief and a petition for statutory writ of certiora-ri challenging the validity of two ordinances, one a rezoning ordinance and the other a clarification of an existing zoning ordinance. The ordinances were enacted to allow the construction of a large-scale residential and commercial building complex in the downtown area of West Palm Beach. The gravamen of the Coalition’s complaint was that the ordinances were not enacted in conformity with the Local Government Comprehensive Planning Act of 1975, sections 163.3161-.3211, Florida Statutes (1981). The trial court entered judgment against the Coalition on the ground that it lacked standing to question the validity of the ordinances under Renard v. Dade County, 261 So.2d 832 (Fla.1972). Following the taking of an appeal and the district court’s certification of the case as one requiring immediate resolution, we accepted jurisdiction and granted motions by the Florida League of Cities and the Florida Home Builders Association to file amicus curiae briefs.

In its brief the Coalition raises two issues. The first is whether it had standing to raise the question of whether the ordinances were passed in conformity with the Local Government Comprehensive Planning Act. The second is whether the city was required to use administrative procedures in determining whether the proposed development was consistent with the city’s comprehensive plan. Because we affirm the trial court’s holding with respect to standing, we refrain from commenting upon the second issue.

The question of standing to challenge zoning decisions was comprehensively explained in Renard v. Dade County. In that case a district court of appeal certified as a question of great public interest:

The standing necessary for a plaintiff to (1) enforce a valid zoning ordinance; (2) attack a validly enacted zoning ordinance as not being fairly debatable and therefore an arbitrary and unreasonable exercise of legislative power; and (3) attack a void ordinance, i.e., one enacted without proper notice required under the enabling statute or authority creating the zoning power.

261 So.2d at 834. This Court held that under the first category a plaintiff had to prove special damages different in kind from that suffered by the community as a whole, that under the second category a plaintiff needed to have a legally recognizable interest that was adversely affected, and that under the third category an affected resident, citizen, or property owner had standing.

It therefore became important to determine into which category a particular case fell, for different rules of standing applied depending on whether the action sought to enforce a valid zoning ordinance, whether it attempted to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative power, or whether it involved an attack upon a zoning ordinance which was void because not properly enacted.

Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082, 1087 (Fla.1978).

Appellant argues that none of these three categories are applicable to actions seeking to enforce compliance with the Local Government Comprehensive Planning Act. Appellant claims that although the legislature did not enact a separate statutory section on standing, it intended to grant standing to the fullest extent possible by using the phrase “justiciably raised” in section 163.3194(3)(a), which provides in part:

A court, in reviewing local governmental action or development regulations under this act, may consider, among other things, the reasonableness of the comprehensive plan or element or elements thereof relating to the issue justiciably raised or the appropriateness and completeness of the comprehensive plan or element or elements thereof in relation to the governmental action or development regulation under consideration.

We do not find that the legislature, by adopting this section, intended to broaden the requirements for standing. Because the legislature did not specifically address the question of who has standing to enforce compliance with the Act, we find that it must not have intended to alter the standing requirements established in Renard v. Dade County.

In the alternative, appellant argues that the Act creates for citizens and residents legally recognizable interests which are adversely affected if a rezoning ordinance fails to comply with the Act’s requirements. We disagree with this contention. The legislature specifically delineated the intent and purpose of this act in section 163.3161, which provides:

163.3161 Short title; intent and purpose.—
(1) This act shall be known and may be cited as the “Local Government Comprehensive Planning Act of 1975.”
(2) In conformity with, and in furtherance of, the purpose of the Florida Environmental Land and Water Management Act of 1972, chapter 380, it is the purpose of this act to utilize and strengthen the existing role, processes, and powers of local governments in the establishment and implementation of comprehensive planning programs to guide and control future development.
(3) It is the intent of this act that its adoption is necessary so that local governments can preserve and enhance present advantages; encourage the most appropriate use of land, water, and resources, consistent with the public interest; overcome present handicaps; and deal effectively with future problems that may result from the use and development of land within their jurisdictions. Through the process of comprehensive planning, it is intended that units of local government can preserve, promote, protect, and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare; prevent the overcrowding of land and avoid undue concentration of population; facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, housing, and other requirements and services; and conserve, develop, utilize, and protect natural resources within their jurisdictions.
(4) It is the intent of this act to encourage and assure cooperation between and among municipalities and counties and to encourage and assure coordination of planning and development activities of units of local government with the planning activities of regional agencies and state government in accord with applicable provisions of law.
(5) It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act.
(6) It is the intent of this act that the activities of units of local government in the preparation and adoption of comprehensive plans, or elements or portions therefor, shall be conducted in conformity with the provisions of this act.
(7) The provisions of this act in their interpretation and application are declared to be the minimum requirements necessary to accomplish the stated intent, purposes, and objectives of this act; to protect human, environmental, social, and economic resources; and to maintain, through orderly growth and development, the character and stability of present-and future land use and development in this state.

Thus the legislature has not indicated in this section that it intended to create additional legal rights in citizens who are only affected in common with the community as a whole. The expressed intent contained in subsection (5) that development shall not be permitted unless it is in conformity with the comprehensive plan imposes a legal duty upon the governing body but does not create a right of judicial redress in the citizens and residents of the community. The legal duty imposed on local governmental bodies is akin to their general obligation to pass ordinances that are reasonable. See 1 Rathkopf, The Law of Zoning and Planning § 3.05 (4th ed. 1979). We therefore hold that only those persons who already have a legally recognizable right which is adversely affected have standing to challenge a land use decision on the ground that it fails to conform with the comprehensive plan. Since the trial court found that the Coalition had failed to prove that it or any of its members had a legally recognizable interest which would be affected by the city’s ordinances, we affirm its holding that appellant lacked standing to question the validity of the ordinances.

It is so ordered.

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

ADKINS, J., dissents.


author: ADKINS, Justice.

text:
    William M. SQUIRES, Appellant, v. STATE of Florida, Appellee.
    No. 61931.
    Supreme Court of Florida.
    March 15, 1984.
    Rehearing Denied June 13, 1984.

      Jerry Hill, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen. and Ann G. Pase-hall, Asst. Atty. Gen., Tampa, for appellee.
   ADKINS, Justice.

William M. Squires was convicted of the first-degree murder of Jesse Albritton. The trial judge imposed the death penalty in accordance with the jury’s advisory sentence recommendation. Squires appeals from the conviction and the sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Having reviewed the record and considered the issues presented on appeal, we find no reversible error and affirm Squires’ conviction and sentence.

Evidence at trial described the following events: On the evening of September 2, 1980, Jesse Albritton was abducted from the service station where he worked. Incident to the kidnapping, the service station was robbed of an undetermined amount of money and cigarettes. The next day Al-britton’s body was discovered in a wooded area in Hillsborough County. He had been shot five times at close range — once in the shoulder with a shotgun and four times in the head with a pistol.

At the time of Albritton’s murder, Squires was an escapee from the Florida State Prison System, having been sentenced to three consecutive life sentences. Tampa police apprehended Squires on December 24, 1980, after receiving information of the fugitive’s whereabouts from Mrs. Charlotte Chambliss. On April 29, 1981, Squires was indicted and charged with the premeditated murder, robbery, and kidnapping of Albritton.

At trial the state called Rex Seimer, a correctional officer at Lake Butler, and Robert Fain, a prison inmate. Both men testified that Squires admitted to them to killing Albritton. Detective Gerald Helms also testified that Squires had admitted to robbing the victim and to being present when Albritton was shot. However, Squires told Helms that he personally had not pulled the trigger. The state then offered the testimony of Terry and Charlotte Chambliss, both of whom confirmed that Squires was in Tampa on September 2, 1980, the date of Albritton’s abduction and murder. Mr. Chambliss told the court of seeing Squires with several pistols and a shotgun. He also observed several cartons of cigarettes in the back of the defendant’s automobile. Finally, Mr. Chambliss recounted a conversation he had with Squires during which Squires stated that he had run into trouble during a robbery and had to “dust one.” Squires’ defense was basically that of alibi, attempting through testimony and credit card records to place himself somewhere else when the crime was committed. The jury found Squires guilty as charged of premeditated murder, robbery, and kidnapping, then recommended that the death penalty be imposed.

On appeal Squires raises seven points which will be addressed in order of their presentation. In the first point on appeal Squires contends that the trial court violated the Williams Rule by permitting the state to introduce testimony that he had, on several occasions, shot at persons other than the victim. Squires argues that this testimony introduced prejudicial evidence of his alleged criminal activity unrelated to the charges brought at trial and served no purpose but to illustrate his bad character. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); § 90.-404(2)(a), Fla.Stat. (1981).

We cannot agree. The record shows that appellant put forward testimony of Officer Kinnard who stated that Squires had personally spared his (Kinnard’s) life during an unrelated kidnapping episode. Squires then took the stand and made additional self-serving statements regarding his aversion to killing. Only after the accused entered these statements did the state produce the challenged testimony linking Squires with other shootings. By attempting to demonstrate his non-violent character, Squires had placed this alleged trait in issue. The trial court properly allowed the state to rebut these assertions of non-violent character by showing that Squires had fired deadly weapons at persons other than the victim. Lewis v. State, 377 So.2d 640 (Fla.1979); § 90.404(1)(a), Fla.Stat. (1981).

In his second point on appeal Squires argues that the trial court committed fundamental error by failing to instruct the jury on excusable and justifiable homicide. This argument is also without merit. At trial appellant’s counsel and the prosecutor entered into a written stipulation setting forth the appropriate jury instructions. The agreed upon instructions contained the following reference to the terms “excusable” and “justifiable” deadly force:

In this case, William M. Squires is accused of first degree murder.
Murder in the first degree includes the lesser crimes of murder in the second degree, murder in the third degree and manslaughter, all of which are unlawful. A killing that is excusable or was committed by the use of justifiable deadly force is lawful.

Squires never objected to these instructions. In the absence of fundamental error, failure to object to the instructions as given precludes review of those instructions on appeal. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). Where defendant is convicted of first-degree murder an error or omission in an instruction on the lesser included offense of manslaughter is not fundamental error. See Ray v. State, 403 So.2d 956 (Fla.1981); Dobbert v. State, 328 So.2d 433 (Fla.1976), aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Since the instructions were not objected to at trial and no fundamental errors have been detected in the record, Squires is precluded from a review of those instructions on appeal.

The balance of Squires’ challenges focus upon the penalty phase of the trial. In his third point on appeal, Squires submits that the trial court found in mitigation that he was an incidental accomplice in a murder committed by another person and, therefore, the imposition of the death penalty was inappropriate under the rationale of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (there the Court held that identical treatment of a robber, who killed victims, and an accomplice, who did not kill and did not intend to participate in the murders, for purposes of imposing the death penalty, was impermissible under the eighth amendment). We disagree, for here, unlike Enmund, both the sentencing order and the record indicate that the defendant (Squires) was personally responsible for the murder of Jesse Albritton. The finding from which Squires argues was made in respect to the factor enumerated in section 921.141(6)(d), Florida Statutes (1981), where the trial court stated:

D. THE DEFENDANT WAS AN ACCOMPLICE IN THE CAPITAL FELONY COMMITTED BY ANOTHER PERSON AND HIS PARTICIPATION WAS RELATIVELY MINOR.
FACT:
The evidence in the record by way of defendant’s own testimony reveals that the defendant admitted to Detective Gerald Nelms, Detective George Peterson and A1 Dayton that he had assisted in the robbery and kidnapping of the victim, Jesse Albritton, but that he had not personally shot the victim. Defendant admitted to Detective Nelms that he was present when the victim was killed but that he did not actually pull the trigger.
CONCLUSION:
Evidence based solely on the Defendant’s own testimony supports the contention that the defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor, (emphasis added).

This finding was written in compliance with Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), which requires the trial court to consider all relevant mitigating evidence and weigh it against evidence of aggravating circumstances before imposing the death penalty. In the aforementioned finding, the trial court reports only that it has considered all possible evidence in mitigation; namely, appellant’s self-serving statements disavowing personal involvement in the murder. Contrary to Squires’ contentions, the court did not accept his testimony as ultimate fact. When viewed in total, both the sentencing order and the record point to one conclusion — Squires was personally responsible for the shooting death of Jesse Albrit-ton. Accordingly, Squires’ reliance on Enmund is unfounded. We find no reversible error. Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983).

In his fourth point on appeal Squires contends that the trial court improperly used the underlying felonies in this case (robbery and kidnapping) both to support his felony-murder conviction and as an aggravating circumstance in the penalty phase and therefore violated due process and equal protection principles. He argues that one convicted of felony-murder is prejudiced by section 921.141(5)(d) for that person enters the sentencing phase with one statutory aggravating circumstance already established against him. This Court has consistently rejected this very argument. See Waterhouse v. State, 429 So.2d 301 (Fla.1983); Menendez v. State, 419 So.2d 312 (Fla.1982); and White v. State, 403 So.2d 331 (Fla.1981), cert. denied, — U.S. -, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). We see no reason to recede from our position as enunciated in these decisions. Therefore, we reject Squires’ arguments as being without merit. Our decision remains notwithstanding the United States Supreme Court’s ruling in Enmund v. Florida. Enmund did not invalidate section 921.141(5)(d); rather, it prohibited the imposition of the death penalty on one who was vicariously guilty of felony-murder, but neither killed nor intended to kill the victim. Since this Court has already determined that Squires was personally responsible for the death of Jesse Albritton, the Enmund decision has no impact on our ruling here.

In his fifth point on appeal Squires contends that the trial court effected an improper “doubling” of aggravating circumstances by finding that the capital felony was especially heinous, atrocious and cruel, and was committed in a cold, calculated and premeditated manner. We do not agree. 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), this Court indicated that, facts permitting, a murder can be both heinous, atrocious, and cruel, and cold, calculated, and premeditated. The record in the instant case shows that the victim was shot five times at close range, once in the shoulder with a shotgun and four times in the head with a pistol. In addition, trial testimony shows that Squires admitted to Robert Fain that he had shot the victim first with a shotgun and then, as the victim lay screaming in pain, completed the task by firing the remaining shots into victim’s head with a revolver. The evidence shows clearly that the murder was committed so as to cause the victim unnecessary and prolonged pain. Therefore, the trial court’s finding that the murder was heinous, atrocious, and cruel should not be disturbed. Cf. Stevens v. State, 419 So.2d 1058 (Fla.1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983). Furthermore, ample evidence in the record supports the finding that the murder was committed in a cold, calculated and premeditated fashion. As stated above, Squires shot Jesse Albritton four times in the head with a revolver after having initially wounded the man with a shotgun. The fatal pistol shots were fired at extremely close range, a distance estimated by the medical examiner of not more than two inches. Squires’ cold-blooded, calculating and painstaking efforts in effecting the murder are plainly illustrated by the record. Accordingly, the trial court’s finding that the murder was committed in a cold, calculating, and premeditated fashion was proper. Cf. Smith v. State; Combs v. State.

In his sixth point on appeal, Squires argues that the trial court gave improper double consideration to a single circumstance by citing both that he had previously been convicted of a violent felony and that the capital felony was committed by a person under sentence of imprisonment, citing 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).

The principle enunciated in Provence does not apply. In Provence we held it improper for a trial court to consider two aggravating circumstances (murder committed during the course of a robbery and murder committed for pecuniary gain) both based on the same evidence and the same aspect of the defendant’s crime. This reasoning does not apply to the two aggravating circumstances here. Squires’ previous life felony convictions and his status as an escapee are two distinct characteristics of the defendant not based on the same evidence and the same essential facts. Separate findings of the two factors are therefore proper. Cf. Waterhouse v. State.

In his final point on appeal, Squires submits that the trial court found him guilty of felony murder rather than premeditated murder, and that by sentencing him for first-degree felony murder and for the underlying felonies of robbery and kidnapping, the trial court violated the principle of law as enunciated in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We do not agree. This Court recognizes Heg-strom and its sentencing restrictions in felony-murder situations. Here, however, Squires was not sentenced for felony-murder. Rather, the record supports the conclusion that Squires committed premeditated murder. Since the Hegstrom sentencing restrictions do not operate in premeditated murder situations, the imposition of life sentences on both the robbery and kidnapping charges was proper.

Squires’ convictions and sentences are affirmed.

It is so ordered.

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


text:
    DADE COUNTY, Petitioner, v. NATIONAL BULK CARRIERS, INC., Respondent.
    No. 62862.
    Supreme Court of Florida.
    March 22, 1984.
    Rehearing Denied June 12, 1984.

      Robert A. Ginsburg, Dade County Atty., and Eileen Ball Mehta, Asst. County Atty., Miami, for petitioner.
    Michael R. Storace of the Law Offices of Michael R. Storace, Coral Gables, for respondent.
   ADKINS, Justice.

This case is before the Court for review of the decision of the Third District Court of Appeal which is reported at 419 So.2d 697 (Fla. 3d DCA 1982). This case conflicts with City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953), appeal dismissed, 348 U.S. 906, 75 S.Ct. 292, 99 L.Ed. 711 (1955), and Mailman Development Corp. v. City of Hollywood, 286 So.2d 614 (Fla. 4th DCA 1973), cert. denied, 293 So.2d 717 (Fla.), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974).

Respondent, National Bulk Carriers, is the owner of 1,850 acres of property located in Dade County, Florida. The land was previously owned by Seadade Realty, Inc.

In 1962, Seadade sought and obtained from Dade County a rezoning of the property to the IU-3 (Unlimited Manufacturing) classification in order to construct a petroleum refinery. The approval included a conditional permission to excavate canals and a harbor and the entire application was made subject to an agreement that the applicant would not seek a building permit until Dade County had enacted a comprehensive pollution control ordinance. Two years later Seadade Realty voluntarily abandoned its oil refinery project. The county commission subsequently adopted Resolution Z-154-64 on June 16, 1964, which withdrew approval of the oil refinery without affecting the IU-3 zoning or the permission to excavate the canals and harbor.

In the ensuing years no attempt was made by National Bulk Carriers or its predecessor to develop the property in accordance with the approval granted in Resolution Z-154-64. In 1975, however, Dade County adopted its Comprehensive Development Master Plan which designated a portion of the property as “environmentally sensitive” and the remainder as “agriculture and open space.” In July of 1979 National Bulk Carriers filed with the Dade County Building and Zoning Department an application for an unusual use permit to excavate a lake on its property and to fill the remainder of the land to the elevation of flood criteria. The county’s Department of Environmental Resources Management (DERM) had expressed opposition to the application. Specifically, DERM observed that the filling of the lands located below the mean high water line would be contrary to the objectives of the Biscayne Bay Aquatic Preserve Act, section 258.165, Florida Statutes (1981). DERM also recognized that the project would conflict with the policies of Dade County’s Comprehensive Development Master Plan and the Florida State Comprehensive Plan to preserve the land in its natural state.

National Bulk Carriers’ application was heard by the zoning appeals board on June 11, 1980, and a motion to approve the application resulted in a tie vote. In accordance with the procedural rules of the zoning appeals board, the application was again presented to the board on June 25, 1980. At that time, a motion to deny the application was adopted. National Bulk Carriers appealed the decision of the zoning board to the board of county commissioners and the matter was heard on September 4, 1980. National Bulk Carriers submitted that the purpose of its application was to make the property suitable for farming. Their experts contended that the marl soil found on the upland portion of the property could be pushed aside while fill material excavated from the proposed lake would be spread throughout the property, raising its elevation to flood criteria. Thereafter, a blanket of the reserved marl would be spread over the artifically elevated land. One expert speculated that the cost of the procedure would fall between $4,000 to $7,000 per acre. The board of county commissioners denied the application with prejudice on September 4, 1980.

In January of 1981 the commission rezoned the property from IU-3 to CU (Interim Use) in order to conform to the Comprehensive Development Master Plan classification as a preservation zone. National Bulk Carriers appealed both the denial of its unusual use application and the approval of the rezoning. On a consolidated appeal, National Bulk Carriers sought judicial review contending that the county’s actions constituted a taking of property without compensation. The circuit court upheld the county’s action. The court noted that its opinion should not be construed as a denial of National Bulk Carriers’ right to raise the taking issue in a separate action. Pursuant to a petition for writ of certiorari, the Third District Court of Appeal held that the circuit court erred in failing to resolve the inverse condemnation issue. The district court remanded the cause for further proceedings pursuant to section 373.617, Florida Statutes (1981), and the remainder of the circuit court’s order was affirmed. Discretionary review was then granted by this Court.

Petitioner submits that the district court erred in remanding the cause for a determination on the taking issue because a zoning decision cannot be correct and unconstitutional at the same time. Respondent submits that the action of Dade County should be ruled a taking. However, respondent also seeks reversal of the ruling by the Third District Court of Appeal because it takes the position that the district court should have resolved the taking issue without remand.

In our recent decisions in Albrecht v. State, 444 So.2d 8 (Fla.1984), and Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982), we recognized the proposition that under certain circumstances a statute or regulation may meet the standards necessary for an exercise of the police powers and authorize a taking. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). In Albrecht we held that a claim of uncompensated taking constitutes a separate and distinct cause of action from an action challenging the propriety of an agency’s action in denying a permit to dredge and fill. We recognized that the determination, judicially or otherwise, that such an action was authorized under the applicable statute does not necessarily also determine that there is no taking. We distinguished between a zoning change or denial on the one hand and a permit denial on the other hand in Key Haven. We explained that “[a] zoning ordinance is, by definition, invalid if it is confiscatory,” 427 So.2d at 159, and, consequently, no inverse condemnation would be necessary. On the other hand, as in Key Haven, if the “statute authorizes a permit denial which is confiscatory,” id., a separate condemnation proceeding is an appropriate remedy. Under the type of statutory- permitting-scheme involved in Key Haven, Albrecht, and Graham v. Estuary, it was contemplated that its application may result in a taking. Such is not the case in the application of a zoning ordinance. To be valid, it must be reasonable. If a zoning ordinance is confiscatory, the relief available is a judicial determination that the ordinance is unenforceable and must be stricken. See City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953), appeal dismissed, 348 U.S. 906, 75 S.Ct. 292, 99 L.Ed. 711 (1955), and Mailman Development Corp. v. City of Hollywood, 286 So.2d 614 (Fla. 4th DCA.1973), cert. denied, 293 So.2d 717 (Fla.), cert. denied, 419 U.S. 844, 95 S.Ct. 77, 42 L.Ed.2d 72 (1974). See also Kasser v. Dade County, 344 So.2d 928 (Fla. 3d DCA 1977). We hold that this cause should be remanded to the circuit court for a determination of whether the county’s action is confiscatory and constitutes a taking without just compensation, in which event the action of the board must be stricken. A denial of rezoning cannot be both reasonable and confiscatory.

We also hold that the district court’s application of section 373.617 to the facts of this case was erroneous.

Section 373.617(2) provides a method of judicial review of final action of any agency with respect to a permit. A “permit” is defined to mean “any permit or license required by this chapter.” See § 373.-617(1)(b). “Agency” is defined to mean “any official, officer, commission, authority, council, committee, department, division, bureau, board, section, or, other unit or entity of state government.” See § 373.617(1)(a). It is obvious that the legislature intended to apply the provisions of chapter 373 to agencies dealing with water resources. The short title of that chapter is “Florida Water Resources Act of 1972.” The limited scope of this legislation was explained in an article appearing in The Florida Bar Journal:

Key operational definitions of “agency” and “permit” limit the court action to state agency decisions involving Chapters 161, 253, 373, 380 and 403, Fla.Stat. Hence, the Department of Natural Resources decisions regarding coastal construction control lines, Trustees of the Internal Improvement Trust Fund decisions regarding dredge and fill permit appeals and sale and lease of state owned lands, Land and Water Adjudicatory Commission and regional water management district decisions regarding water permits, Land and Water Adjudicatory Commission decisions regarding developments of regional impact and areas of critical state concern, and Environmental Regulation Commission decisions regarding pollution control permits are subject to the circuit court action established by the act.

R. Rhodes, Compensating Police Power Takings: Chapter 75-85, Laws of Florida, 52 Fla.BJ. 741, 743 (1978) (footnotes omitted).

The district court has clearly attempted to add to section 373.617 in order to make it cover a situation which is not within the meaning of the legislation. The courts cannot amend or complete acts of the legislature intending to supply relief in instances where the legislature has not provided such relief.

Accordingly, we remand this cause with directions to remand it to the circuit court for proceedings consistent with this opinion.

It is so ordered.

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