author: TAYLOR, Judge.

text:
    Otto MAYES, Jr. v. STATE.
    4 Div. 250.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.

      Hugh Davis, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant Otto Mayes, Jr., escaped from the Covington County jail in July 1980. The October 1980 grand jury of Covington County, returned an indictment against him for this escape. Appellant was caught in Columbus, Georgia, and in January, 1981 was returned to another county in Alabama to be tried on other charges. He testified at his motion for a speedy trial that he had been in jails in Geneva and Elba and that he was tried in May 1981 in Enterprise.

In July 1983, appellant, then a resident of Holman Prison, filed in Covington County a pro se “motion for fast and speedy trial.” The authorities thereupon proceeded to act on the old indictments and caused the appellant to be “arrested” in August 1983. A hearing was held on appellant’s speedy trial motion and motion to dismiss the indictment. Appellant argued that since he was currently serving a term of life imprisonment without parole, no further action should be taken against him. The motions were denied. Appellant was arraigned and pleaded not guilty on October 3, 1983. The case was tried on October 27, and appellant was convicted. He was sentenced to life imprisonment in the penitentiary. On this appeal he contends that his right to a speedy trial as preserved by the Sixth Amendment to the United States Constitution was violated.

The total time delay between the beginning of the criminal prosecution and the actual trial of this case was October 1980 to October 1983. Four factors have to be considered in determining whether a defendant has been denied his right to a speedy trial: (1) length of delay, (2) reason for the delay, (3) defendant’s assertion of his rights, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Times greater than three years have been found not to violate the speedy trial right. Extended delay does trigger the court’s inquiry into the other factors. The time during which the appellant was a fugitive cannot be held against the prosecuting authority in computing the time.

We note that during the interim period, the appellant was tried and convicted of another offense in another county in this state, resulting in his receiving a sentence of life imprisonment without parole. The period of delay attributable to disposition of the other charge in the other county, where reasonable, cannot be charged against the state as needless delay.

In Turner v. Estelle, 515 F.2d 853 (5th Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976), and in Jamerson v. Estelle, 666 F.2d 241 (5th Cir.1982), the Fifth Circuit Court of Appeals held that conservation of prosecution and judicial resources also constituted a valid ground for post-indictment delay. Each of those federal cases involved a delay in bringing an accused to trial because he had received a death sentence in another case. The U.S. Fifth Circuit Court of Appeals stated in part:

“... Texas’ position is that it justifiably chose not to expend scarce judicial and prosecutorial resources in trying a defendant facing a death sentence, the execution of which would have eliminated the need for any trial at all. 515 F.2d at 856. We found this reasoning to be compelling in Turner.”

We have recognized this principle in Thomas v. State, 432 So.2d 15 (Ala.Crim.App.1983).

That an accused has, since indictment, been sentenced to life imprisonment without parole in a different case is a valid consideration in evaluating the reason for delay. We recognize a difference between death and life without parole cases, however, in that there exists a higher statistical probability that some court will find fault with any death penalty case. When the appellant in this case did assert his right to a speedy trial, the state acted promptly and trial was had within a short period of time. We find no proof of actual prejudice to the appellant in the preparation and presentation of his defense resulting from the delay. On balance, we conclude that the trial court did not err in denying the motion to dismiss the indictment for failure to provide a speedy trial.

Appellant also contends that the court erred in refusing to give his written requested jury instructions on the issue of duress. Suffice it to say that in order to claim the very narrow and limited defense of duress, the defendant must prove that he surrendered himself to the proper authorities after attaining a position of safety with reference to the threatened harm. There is no evidence of surrender in this case and consequently the court could not have legally charged the jury on the issue of duress.

Accordingly, this case is affirmed.

AFFIRMED.

All the Judges concur except BOWEN, P.J., who concurs in result only.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Tommie RODGERS v. STATE.
    4 Div. 290.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.

      George W. Andrews III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Tommie Rodgers was convicted in 1975 of second-degree murder. It appears that he gave oral notice of appeal but that his retained counsel never filed an appeal with this court. Because he was, thereby, denied his right to a direct appeal, the appellant sought relief through a petition for a writ of error coram nobis. The trial court, after an appropriate hearing, agreed that the appellant should be granted an out-of-time appeal but denied his petition on the grounds that it did not have the authority to grant this relief.

For aught that appears in the record, the appellant was denied a direct appeal through no fault of his own. Therefore, on the authority of Longmire v. State, 443 So.2d 1265 (Ala.1982), the trial court’s denial of appellant’s coram nobis petition must be reversed and this cause must be remanded with instructions that the appellant be afforded an appeal to this court. See, Campbell v. State, 435 So.2d 234 (Ala.Crim.App.1983).

REVERSED AND REMANDED.

All the Judges concur.


text:
    Walter Lee ALLEN v. STATE.
    8 Div. 113.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Walter Lee Allen, pro se.
    Charles A. Graddick, Atty. Gen. and H.P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

This is an appeal of the trial court’s refusal to take jurisdiction of appellant’s petition for writ of habeas corpus.

From aught that appears in the record, the trial court was correct in con-eluding that appellant’s petition presented only “factual issues which cannot be reached by habeas corpus proceedings,” and in refusing to take jurisdiction. “It is a well-settled principle of law in Alabama that a writ of habeas corpus cannot be used to replace a writ of error [coram nobis] or an appeal.” Cooper v. Wiman, 273 Ala. 699, 145 So.2d 216 (1962), cert. denied, 371 U.S. 958, 83 S.Ct. 516, 9 L.Ed.2d 505 (1963); see also, Fields v. State, 407 So.2d 186 (Ala.Crim.App.1981); Collins v. State, 424 So.2d 693 (Ala.Crim.App.1982); Brown v. State, 429 So.2d 674 (Ala.Crim.App.1983).

Consequently, the trial court’s judgment in refusing jurisdiction is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Isiah WILSON v. STATE of Alabama.
    3 Div. 9.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Isiah Wilson, pro se.

      Charles A. Graddick, Atty. Gen., and T. A. Harding Fendley, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Isiah Wilson filed a petition for writ of error coram nobis in circuit court seeking to void his robbery conviction which petition was denied by the circuit court without a hearing, based upon the fact that the appellant had an original appeal to this court which had been affirmed and no new issues were raised in the coram nobis petition. See Wilson v. State, 3 Div. 733, affirmed January 10, 1984, without opinion.

The appellant was originally charged by indictment with the robbery of one Dan Fowler for removing a credit card, wallet and $1,071.00 in U.S. currency from his person, through use of a deadly weapon, to-wit a pistol, contrary to § 13A-8-41, Code of Alabama 1975 as amended. As a habitual offender, he was sentenced to 21 years imprisonment.

Prior to trial, the appellant’s counsel had filed a motion to produce, which was granted. Also, prior to trial, a hearing of a motion to suppress was conducted and was denied after a pre-trial hearing. This had sought to attack the eye-witness identification.

At trial, Mr. Dan Fowler testified that he was an insurance agent for Mutual Savings Life Insurance Company on August 5, 1982. He was making his rounds, collecting on policies and had called on several customers that evening. He stated that as he was leaving a home on Liberty Street, two black males approached him, each carrying pistols. He stated that he did not have an opportunity to flee to his automobile as they ran toward him with pistol in hand. They took his wallet which contained his driver’s license and a number of personal credit cards and in addition, took $1071.00 in U.S. currency. Fowler related that the men did not take the change which he had on his person. He said that shortly after the men left, he went to police headquarters and was asked to view two suspects. He told the police that neither was the party who had robbed him that evening. The next day, and again the following week, he viewed some mugshots at police headquarters. He was unable to select anyone at this time.

“About a month” after the robbery, Mr. Fowler was asked to come to police headquarters and there view a lineup. He stated that the first lineup he examined he immediately recognized the appellant, Isiah Wilson, who was in position number five. He also made a positive in-court identification of Wilson at trial.

Mr. Fowler further testified that he viewed a second lineup later that day and immediately picked out Wilson’s companion who had also participated in the robbery.

Billy Wayne Smith testified that on September 14, 1982, he was present at a lineup at Montgomery Police Headquarters and that, without any hesitation, Fowler immediately picked out Isiah Wilson, who was in position number five of a lineup of six black males of essentially the same size and build.

He stated that no suggestion whatever had been given Mr. Fowler prior to the lineup as to who would be in same.

Montgomery Police Detective F. Blankenship then identified some photographs of the lineup at which Mr. Dan Fowler identified the appellant and the photographs show that the appellant was in position number five at the time of the lineup on September 14, 1982.

On cross-examination, Detective Blankenship testified that he had received information from an informant that the appellant and a companion had robbed Mr. Fowler on Liberty Street as he was making his rounds to collect on policies. He stated that he went to the home of the appellant about four o’clock on the afternoon of September 14, 1982, arrested him and brought him to police headquarters for a lineup.

The appellant’s motion for a directed verdict of acquittal and motion to exclude were overruled.

The appellant presented the testimony of one Donald King, who testified that he had participated in the robbery of the insurance man, Mr. Dan Fowler, on August 5, 1982, on Liberty Street in Montgomery. He stated that he was accompanied by a friend named Michael T. He stated that the appellant, whose nickname was “Candy” Wilson was not present at the time of the robbery. King admitted that he had already pled guilty and been sentenced.

On cross-examination, King admitted that he had pled guilty of the robbery of Mr. Fowler, and also to two other robberies. He also admitted that he had given the police two identifications of two different black males and identified a statement that he had given police on September 15, 1982, admitting participation in the robbery of Mr. Fowler. He also stated that in the statement he told police that the appellant, “Candy” Wilson, had pointed a pistol at Mr. Fowler at the time of the robbery.

Appellant presented the testimony of one Willie James Smith who stated that he remembered the date of August 5, 1982, and that he had been at “Ed’s Place” and that the appellant, Isiah Wilson, had been there with him.

The appellant took the stand and testified that he remembered the date of August 5, 1982, because he had seen Mr. Fowler come by collecting on insurance policies. He denied participating in the robbery of Mr. Fowler and stated that he was elsewhere on this date. He admitted having two prior robbery convictions on cross-examination.

There was no exception to the oral charge of the court and the trial court gave four of seven written requested charges. The appellant’s motion for new trial challenging the weight and sufficiency of the evidence was overruled.

I

Because the appellant contends that his lineup identification was unduly suggestive, we have taken time to again review this trial transcript and find this contention to be utterly without merit. We have examined the totality of circumstances as required by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) and find that the lineup was carefully conducted and no unduly suggestive matter was brought to the attention of Mr. Fowler prior to his identification of the appellant. Contrary to the appellant’s contentions, Mr. Fowler stated that he instantly recognized the appellant and identified him as being in position five at the lineup on September 14, 1982, at Montgomery Police Headquarters. He also made a positive in-court identification and further identified his companion who had been in a second lineup. We are of the opinion that the trial court properly denied the motion to suppress and motion for new trial challenging the weight and sufficiency of the State’s evidence. See Childers v. State, 339 So.2d 597 (Ala.Crim.App.1976), cert. denied, 339 So.2d 601 (Ala.1976); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Dixon v. State, 357 So.2d 690 (Ala.Crim.App.1978) and authorities therein cited.

It is clear that the arresting officers had ample probable cause to effect the arrest of this appellant and the State properly proved a prima facie case as required by law.

Appellant’s petition for writ of error cor-am nobis was here properly denied. Cannon v. State, 416 So.2d 1097 (Ala.Crim.App.1982).

This record also clearly establishes that the appellant was thoroughly, adequately and competently represented by counsel throughout his original trial and initial appeal to this court. Williams v. State, 448 So.2d 964 (Ala.Crim.App.1984) and authorities therein cited.

The judgment of the trial court, including both the original trial proceedings and the coram nobis proceedings, is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Lewis MURRY, alias v. STATE of Alabama.
    3 Div. 953.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Claude F. Allison, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

.Lewis Murry was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial judge sentenced him to life imprisonment in the penitentiary.

At approximately 12:30 p.m. on January 14, 1982, a man entered Hardin’s Supermarket in Montgomery and told Michael David Fitzgerald, an employee, that he would blow Fitzgerald’s head off with a gun if Fitzgerald did not fill his sack with money. Fitzgerald began giving the man money out of the cash register and the man reached over and grabbed some $5.00 bills. This action triggered the camera hidden in the store. The man told Fitzgerald to lie on the floor and to stay there for five minutes. As soon as the man left, Fitzgerald called the police.

Fitzgerald viewed two lineups and picked the appellant out of the second lineup. He also identified the man in the photograph which was developed from the hidden camera as the man who robbed him and positively identified the appellant as the robber during the trial.

I

The appellant objects to the admission into evidence of the photograph of the appellant which was taken by the hidden camera.

A photograph is properly admitted into evidence if it tends to prove or disprove some disputed matter, illustrates or elucidates some relevant fact or corroborates or disproves some other issue offered or to be offered. McElroy’s Alabama Evidence, § 123.03(1) (3d ed. 1977); Myers v. State, 431 So.2d 1342 (Ala.Crim.App.), cert. quashed, 431 So.2d 1346 (Ala.1982); Carpenter v. State, 400 So.2d 417 (Ala.Crim.App.), writ, den., 400 So.2d 427 (Ala.1981). However, a photograph is not self-proving, and before it may be admitted into evidence, it must be properly authenticated. It is not necessary that the photographer authenticate the photograph. Certainly this is true because in cases such as the one at bar, there is no actual photographer. A photograph may be verified by any person who is familiar with the subject matter of the photograph and can testify that the photograph correctly depicts the scene at the relevant time period. McElroys, supra, at § 123.03(1), § 123.03(3); Whittington v. State, 432 So.2d 25 (Ala.Crim.App.1983); Donner v. State, 409 So.2d 461 (Ala.Crim.App.1981).

George Wyatt Gantt, the Montgomery Police Officer who is in charge of the crime eye cameras, testified that the hidden camera in Hardin’s Supermarket is activated by a transmitter attached to a money clip, which is kept in the cash register. Fitzgerald testified that the camera was activated when the appellant grabbed the $5.00 bills from the cash register. Soon after the robbery occurred, Gantt took the film out of the camera and developed the film. Fitzgerald had described the clothing which the subject of the photograph wore, and he identified the subject of the photograph, the appellant, as the man who robbed him on the night in question.

The testimony of Gantt and Fitzgerald was sufficient verification of the subject matter which the photograph depicted. The photograph showed that the appellant was in the store at the counter when the camera was activated. The photograph certainly tended to prove that the appellant was the person who robbed Fitzgerald the night in question. Therefore, we hold the photograph was properly admitted into evidence.

II

During the trial of this case, Officer A.F. Blankenship, an investigator with the robbery-homicide division of the Montgomery Police Department, testified that, after he received the photograph developed from the crime eye camera at Hardin’s Supermarket, he showed this picture to three inmates in the Montgomery City Jail. Over the objection of defense counsel, Blankenship testified that these three persons told him that the picture was of a person named Lewis who lived on Mill Street in Montgomery. The appellant contends Blankenship's testimony should have been excluded by the trial judge as inadmissible hearsay.

We do not agree with the appellant’s contention. Blankenship’s testimony was not admitted to prove that the appellant was the person who committed the robbery. The purpose of his testimony was to identify the person depicted in the photograph. These inmates gave Blankenship a lead as to the person’s identity. The appellant, Lewis Murry, was arrested on Mill Street.

Therefore, Blankenship’s testimony was properly admitted as an exception to the hearsay rule. McElroys, supra at § 273.02; Carroll v. State, 405 So.2d 163 (Ala.Crim.App.1981).

For the reasons stated above, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Marvin FREEMAN, Sr., alias v. STATE of Alabama.
    5 Div. 888.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Calvin D. Biggers, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen. and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Marvin Freeman, Sr., was indicted for receiving stolen property in the second degree in violation of § 13A-8-18, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and following a habitual offender hearing, the trial judge set sentence at ten years’ imprisonment in the penitentiary.

On August 1, 1981, two Poulan chain saws were found missing from a shed on the campus of Tuskegee Institute. The chain saws had a value of $300.00.

Later that day, C.J. Faulk received a phone call from a man named Clifford Johnson, who asked Faulk if he wanted to buy two chain saws. Soon afterwards, Faulk met the appellant and Johnson at the back gate of the campus. Johnson told Faulk the appellant was going out of the pulp wood business and wished to sell the two saws. Faulk then gave the appellant a $200.00 check in payment for the saws. The appellant cashed the check at Bargain Town that same day.

Several defense witnesses testified that the appellant had taken the saws in pawn from Johnson and the reason the check was made out to the appellant was because Johnson owed him money.

I

During the course of the trial, several defense witnesses attempted to testify about what the appellant had told them. The prosecution objected to this testimony and the trial judge sustained these objections. The appellant contends these statements should have been allowed into evidence as an exception to the hearsay rule.

There is no need to discuss the merits of this issue since we find the appellant did not properly preserve this issue for our review. Following the trial court’s ruling on these objections by the prosecution, defense counsel should have made an offer of proof of what the witness was expected to answer and stated the reason the statement should be admitted into evidence. See R. 83-84, 86, 87, 97-98, 110, 116-118.

Since defense counsel failed in each instance to make an offer of proof, there is nothing before this court on which we could predicate error. McElroy’s Alabama Evidence § 425.01 (3d ed. 1977); Reeves v. State, [Ms. 1 Div. 702, June 12, 1984] (Ala.Crim.App.1984).

II

After the jury had begun their deliberations, the following occurred.

“THE COURT: First, let me tell you that I certainly will not inquire as to any votes that you have taken or anything like that. And my inquiry is just a very general inquiry. Who is your foreman? What I need to ask you is whether you are anywhere — feel that you are anywhere near a verdict at this point in time because it’s now 6:25 at night. And I’ve got to make a very difficult decision about what to do next, in the case because we have — tomorrow is a state holiday. I do have other things scheduled on Monday. But it appears to me that probably if we don’t reach a verdict tonight that we may have to come back and resume the deliberations on Monday morning. That’s a long time to be divided and a long time to not be reviewing the evidence. I mean, you know, to get away from the evidence and so forth. So what do you think: Are you anywhere near a verdict?
“FOREMAN: Your Honor, would one hour be reasonable?
“THE COURT: I can’t say what would be reasonable.
“FOREMAN: I feel that we may perhaps come to a conclusion within an hour.
“THE COURT: O.K. I’m going to let you go back. I will not promise any set time. As a practical matter I had somewhere I’m supposed to be a little bit later tonight. I may at any time have to make a decision to stop the deliberations. It would not be appropriate under any circumstances for me to just set an arbitrary time. But I will simply tell you to go back and continue your deliberations and see how you come out. And we will send for you if it becomes necessary to do that and for us to disband for the night.” (R. 155-156).

The appellant complains that he was denied a fair trial because the trial judge’s statement to the jury imposed an arbitrary limit on the period of deliberation.

The above-quoted portion of the record clearly indicates that the trial judge was not giving the jury a specific time period in which to reach a verdict. The trial judge was merely inquiring if the jury had an idea of when they might reach a verdict so he could make plans in the event they were unable to reach a verdict that night. We cannot hold that the appellant was prejudiced by the trial court’s actions in this regard.

Moreover, defense counsel did not object to the trial court’s statement and, therefore, did not preserve this issue for our review.

Ill

The appellant asserts he was denied a fair and impartial trial as a result of the conduct of the trial judge during the course of the trial. The record does not support this contention.

We have examined this record in each instance referred to by counsel in brief.

This includes the trial judge's admonition to witness Marilyn Stinson, with reference to her testimony, also Nettie Stinson and Clifford Johnson as to their testimony.

We also have examined the questions asked of several witnesses by the trial judge. We find no error in the instances cited to us. Brandes v. State, 17 Ala.App. 390, 85 So. 824 (1920) and Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218 (1973).

After our review of the record, this court finds the trial judge conducted the trial in a fair and impartial manner. We do not ascertain any improper conduct on the part of the trial judge and, therefore, we hold there is no basis for a reversal on this issue. Thomas v. State, 393 So.2d 504 (Ala.Crim.App.1981), and authorities herein cited.

IV

The appellant’s last contention is that the trial court erred by allowing the jury to view the two chain saws which had been stolen because a proper chain of custody had not been shown. We cannot agree with this contention. The two saws were never offered into evidence and, therefore, it was not necessary for the State to establish a proper chain of custody in regard to the two saws.

For the reasons stated above, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Ronald W. GREY, Respondent.
    Nos. 62736, 63490.
    Supreme Court of Florida.
    April 5, 1984.
    Rehearing Denied Aug. 31, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Stephen 0. Rushing, Bar Counsel, Tampa, for complainant.
    Michael L. Kinney, Tampa, for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before us on complaints of The Florida Bar and the report of the referee. Neither party has sought review of the referee’s report. We have jurisdiction. Art. V, § 15, Fla. Const. The Florida Bar, in two complaints, charged respondent with ten counts of misconduct. Respondent’s alleged misconduct, which occurred over a period of more than three years, involved the neglect of legal matters, inappropriate financial dealings with clients, and the failure to refund unearned fees. The referee consolidated the two complaints and received evidence in a single hearing.

The referee recommended that respondent be found guilty of nine of the ten counts. The Florida Bar did not proceed on the tenth count. Specifically, the referee recommended that respondent be found guilty of thirty-nine violations of Disciplinary Rules of The Florida Bar Code of Professional Responsibility and six violations of The Florida Bar Integration Rule. The referee noted that the misconduct was apparently precipitated by respondent’s financial difficulties. Based upon the cumulative nature of respondent’s misconduct, the referee recommended that respondent be disbarred from the practice of law in Florida. The referee also recommended that all costs of these proceedings be charged to respondent. We approve the referee’s findings and recommended discipline. Accordingly, respondent is disbarred effective thirty days from the date of this opinion, giving him time to close out his practice and protect any remaining clients. Respondent shall pay the costs of these proceedings in the amount of $6,317.51.

It is so ordered.

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


author: OVERTON, Justice.

text:
    AETNA CASUALTY & SURETY COMPANY, Petitioner, v. J. Stuart KOBERT, et al., Respondents.
    No. 64466.
    Supreme Court of Florida.
    May 10, 1984.
    Rehearing Denied Aug. 30, 1984.

      Richard A. Sherman, Fort Lauderdale, and Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for petitioner.
    Nancy Little Hoffmann, and J. Jay Si-mons, Fort Lauderdale, for respondents.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as Kobert v. Zarem, 437 So.2d 730 (Fla. 4th DCA 1983). We find direct conflict with Vetter v. State Farm Mutual Automobile Insurance Co., 423 So.2d 991 (Fla. 3d DCA 1982); Allstate Insurance Co. v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982); Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980); and State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

We have resolved this conflict in our decision in New Hampshire Insurance Group v. Harbach, 439 So.2d 1383 (Fla.1983). For the reasons expressed in that decision, we quash the decision of the district court in the instant case. We also deny the respondents’ motion for attorneys’ fees.

It is so ordered.

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


author: BOYD, Justice.

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, General Telephone Company of Florida, and Citizens of the State of Florida, Appellees.
    Nos. 62599, 63636.
    Supreme Court of Florida.
    May 17, 1984.
    Rehearing Denied Aug. 30, 1984.

      Earl B. Hadlow and Robert J. Winicki of Mahoney, Hadlow & Adams, Jacksonville, William B. Barfield, Miami, and J. Robert Fitzgerald, Atlanta, Ga., for appellant.
    William S. Bilenky, Gen. Counsel, and Bruce W. Renard, Associate Gen. Counsel, Tallahassee, for the Florida Public Service Com’n, appellee.
    James V. Carideo, Lorin H. Albeck, Leslie R. Stein and Michael W. Tye, Tampa, for General Tel. Co. of Florida, appellee.
    Jack Shreve, Public Counsel, Benjamin H. Dickens, Jr., and Stephen Fogel, Associate Public Counsels, Tallahassee, for Citizens of the State of Florida, appellee.
   BOYD, Justice.

These consolidated cases are before the Court on appeal from orders of the Public Service Commission. The orders appealed from relate to the rates or service of utilities providing telephone service. Therefore we have jurisdiction. Art. V, § 3(b)(2), Fla. Const. Both of the orders appealed from were rendered in the same quasi-judicial proceeding before the Public Service Commission. The orders concern the distribution, between appellant Southern Bell Telephone and Telegraph Company and appel-lee General Telephone Company of Florida, of long-distance telephone service toll revenues. We hold that the Public Service Commission has the statutory authority to “adjudicate” the dispute under section 364.-07(2), Florida Statutes (1981), and that this statute is a proper assignment of quasi-judicial authority pursuant to article V, section 1, Florida Constitution. We hold further that the Commission’s authority includes the power to order a change in the course of dealing followed by the two telephone companies pursuant to their contractual arrangement. However, we also hold that the Commission departed from the essential requirements of law in making the change retroactive. Because we find that the Commission exceeded its authority in making its order retroactive, we also hold that the Commission was wrong to penalize Southern Bell for its failure to immediately comply with the order.

Southern Bell and General Telephone are both in the business of providing long-distance telephone service. Because much long-distance service uses the equipment and facilities of both companies and because each company receives revenue from users in unequal proportion to the actual use of their respective facilities, it is necessary that they adjust the distribution of revenue received from users through billing. For many years, Southern Bell and General Telephone have been dividing long-distance telephone service revenues pursuant to two separate settlement agreements, one for intrastate and the other for interstate long-distance service toll revenues. Both agreements provide that the allocation of toll revenues is to be based upon periodic studies governed by the principles and procedures set forth in Part 67 of the Rules and Regulations of the Federal Communications Commission. The Federal Communications Commission’s Separations Manual (Feb. 1971), which is incorporated by reference into the rules, provides that the studies are to be performed during “representative” periods. See 47 C.F.R. § 67.1 (1982). For several years prior to the development of the current dispute, a course of dealing had been followed by Southern Bell and General Telephone under which they divided their long-distance service revenues on the basis of periodic five-day study periods.

On January 1, 1981, General Telephone began to use seven-day study periods to determine what its share of revenues should be. Southern Bell refused to agree to this change in the study method, so General Telephone, on December 14, 1981, filed a petition with the Public Service Commission to resolve the dispute. Public Counsel joined the proceeding on behalf of the Citizens of the State of Florida and argued in favor of the change sought by General Telephone. On July 1, 1982, the Commission issued Order No. 10953 finding the seven-day study method to be more accurate and more appropriate and ordering the two utilities to use seven-day holding time studies for purposes of settling the distribution of toll revenues. Moreover, the Commission ordered that the change of method be made retroactive to January 1, 1981, the date General Telephone first unilaterally announced its intention to use the seven-day study periods. The Commission determined that General Telephone would have received a larger share of divided revenues had Southern Bell agreed to the change at that time. The Commission ordered Southern Bell to pay to General Telephone the money it had received since January 1, 1981 in excess of what it would have been entitled to keep if it had begun using the seven-day method when General Telephone announced its demand. This amount was determined to be about $33,000,000, with approximately $30,-000,000 attributable to interstate service and $3,000,000 attributable to intrastate service.

Southern Bell petitioned for rehearing, which was denied. So, Southern Bell filed a notice of appeal and asked the Commission for a stay of its order, indicating its readiness to make bond to protect General Telephone pending the appeal. The motion for stay was denied orally on October 21, 1982, and by written order on November 10. Meanwhile Southern Bell also asked this Court to stay the Commission’s order, which was denied on November 12, 1982, with reconsideration being denied on November 24, 1982.

On November 30, 1982, Southern Bell paid to General Telephone approximately $3,000,000, representing the intrastate portion of the money the Commission had ruled Southern Bell owed to General Telephone. As to the interstate portion, Southern Bell filed suit in United States District Court against the Public Service Commission and General Telephone seeking to enjoin enforcement of Order 10953 on the ground of unconstitutionality. On December 2, Southern Bell filed a petition with the Federal Communications Commission seeking a declaration that federal law preempts the field of interstate telephone service regulation. (Subsequently the Federal Communications Commission ruled in Southern Bell’s favor on this petition.) On December 15, the Public Service Commission asked this Court to stay the proceedings in the appeal of Order 10953 and to remand it to the Commission for reconsideration. This Court granted the request and remanded the case to the Commission. Southern Bell then voluntarily dismissed its federal court action without prejudice.

Upon remand, the Commission issued Order No. 11824, modifying its earlier order by limiting its effect to intrastate toll settlements. The Commission reversed its earlier conclusion and found that it had no statutory authority over interstate long-distance toll settlement agreements. Order No. 11824 also imposed a monetary penalty on Southern Bell for its earlier failure to comply with the intrastate portion of Order 10953. Although Order 10953 had in effect required Southern Bell to pay General Telephone $33,000,000, and although the Commission was reversing itself as to approximately $30,000,000 of that amount, the Commission reasoned that the failure of Southern Bell, from November 17, 1982 when it exhausted administrative remedies until November 30,1982, to pay the $3,000,-000 attributed to intrastate revenues amounted to “open and unexplained diso-beyance [sic] of the Commission’s order.” The Commission imposed one-half the statutory penalty of $5,000 per day, section 350.127(1), Florida Statutes (1981), in recognition of the fact that as to interstate revenues, Order 10953 “may arguably have been invalid on its face.” Southern Bell appealed Order No. 11824, and we consolidated the two appeals in recognition of the fact that the two orders under review are essentially the products of a single proceeding. The Public Service Commission, General Telephone Company, and the Citizens of the State of Florida through Public Counsel, are before us as appellees and have filed briefs in support of the Commission’s action.

Southern Bell argues that the Public Service Commission’s order, requiring Southern Bell to pay General Telephone $3,000,-000, was an exercise of judicial authority over a contractual dispute and was therefore beyond the administrative and quasi-judicial powers of the Commission. Southern Bell relies on article Y, section 1, Florida Constitution, vesting all “judicial power” in the courts. The appellees respond that article V, section 1 allows administrative commissions to exercise quasi-judicial power in matters connected with the functions of their offices and that the Commission has been given authority to adjudicate disputes between telephone companies over the division of long-distance service revenues.

Section 364.07(2), Florida Statutes (1981), provides:

The commission is authorized to review intrastate toll settlement agreements and disapprove any such agreement if such agreement is detrimental to the public interest. The commission may also require the filing of all necessary reports and information pertinent to intrastate toll revenue settlements. The commission is also authorized to adjudicate disputes among telephone companies regarding intrastate telecommunications settlements.

This paragraph was enacted by the 1980 legislature. Ch. 80-36, § 8, Laws of Fla. See Florida Telephone Corp. v. Mayo, 350 So.2d 775 (Fla.1977) (commission had no power to regulate division of toll revenues in absence of statutory authority). The appellees argue that this grant of authority is valid because such adjudication directly relates to the Commission’s function in regulating the rates and service of telephone companies. Moreover, appellees contend, it was proper for the Commission to make its order regarding the method of time-study retroactive because, as a matter of fairness and public policy, the Commission properly determined that the new method should have been adopted when General Telephone demanded that it be adopted.

Southern Bell argues that the Commission has essentially reformed the contract between the two telephone companies and has departed from principles of due process. Southern Bell says General Telephone, if it was dissatisfied with the arrangement, should have terminated the agreement and negotiated a new one. However, the telephone companies’ agreement does not specify that five-day or seven-day studies will be used. It simply refers to the Federal Communications Commission’s rules incorporating the concept of periodic studies of “representative” periods.

We agree with appellees that the Commission has the authority to adjudicate disputes over the division of revenues and that this authority encompasses the power to order a change in practice on the matter of studying “representative periods.” Giving the Commission this authority did not offend against any principle proscribing the exercise of judicial authority by a quasi-judicial body. We believe that the statutory authority to adjudicate such disputes is properly related to the Commission’s essential function as regulator of the rates and service of utilities. However, we believe that any such adjudication must be given prospective effect only. To hold otherwise would violate the principle against retroactive ratemaking. See City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968).

Having resolved the main thrust of the appeal as discussed above, we find it unnecessary to address Southern Bell’s argument that the Commission’s order of payment was an award of “monetary damages,” an essentially judicial function as-sertedly beyond the powers of the Commission. Nor is it necessary for us to discuss the well-presented arguments of the several parties on the distinction between judicial and quasi-judicial powers as it relates to the retroactive effect of the Commission’s order. See, e.g., Myers v. Hawkins, 362 So.2d 926 (Fla.1978); Southern Bell Telephone & Telegraph Co. v. Mobile America Corp., 291 So.2d 199 (Fla.1974); Canney v. Board of Public Instruction, 278 So.2d 260 (Fla.1973); Florida Motor Lines, Inc. v. Railroad Commissioners, 100 Fla. 538, 129 So. 876 (1930). We simply hold that the Commission properly has the power to adjudicate the dispute, but may not retroactively adjust the distribution of revenues made pursuant to the telephone companies’ arrangement prior to the Commission’s order.

Regarding the penalty of $30,000, Southern Bell argues that it was an abuse of discretion for the Commission to have imposed it since Southern Bell, during the time period cited by the Commission, was diligently trying to obtain stays and judicial review and offered to make bond for the protection of General Telephone. We need not decide whether under the facts shown there was sufficient noncomplianee or willful disobedience to justify the penalty. We reverse the order imposing the penalty on the simple ground that the underlying decision of the Commission, ordering payment based on the retroactive application of the new study method, was erroneous so that Southern Bell may not now be penalized for not immediately complying with it.

Those portions of Orders No. 11824 and 10953 which require Southern Bell and General Telephone to use seven-day time studies in connection with their toll settlements, as of and prospectively from the date of the Commission’s Order No. 10953, are affirmed. Those portions of the orders making the change retroactive to January 1, 1981, are reversed. Those portions of the orders requiring Southern Bell to pay approximately $3,000,000 to General Telephone, and to pay a penalty of $30,000, are reversed.

It is so ordered.

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


text:
    Larry Eugene MANN, Appellant, v. STATE of Florida, Appellee.
    No. 63438.
    Supreme Court of Florida.
    May 24, 1984.
    Rehearing Denied Aug. 30, 1984.

      Jerry Hill, Public Defender, and W.C. McLain, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

A jury convicted Mann of first-degree murder and kidnapping and recommended the death penalty. The trial court sentenced Mann to death for the murder and to ninety-nine years for the kidnapping. On appeal we affirmed the convictions, but vacated the death sentence and remanded for resentencing. Mann v. State, 420 So.2d 578 (Fla.1982). On remand the trial court conducted a new sentencing proceeding without a jury and again sentenced Mann to death. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution and affirm the death sentence.

In Mann’s original sentencing proceeding the state introduced a copy of a conviction showing that Mann had been convicted of burglary in Mississippi. The state also presented evidence (testimony of the victim) to show that Mann committed a sexual battery upon the occupant of the house he burgled. Relying on this conviction and supporting evidence, the trial court found that the aggravating circumstance of previous conviction of a violent felony had been established. § 921.141(5)(b), Fla.Stat. (1979).

On appeal we held that the trial court had erroneously found this aggravating circumstance because burglary is not a crime of violence on its face. 420 So.2d at 580. We also held that the trial court had improperly found the establishment of another aggravating circumstance and that we could not tell what the trial court found regarding the mitigating evidence that Mann presented. We therefore vacated the sentence and remanded for resentenc-ing.

On resentencing the trial court deleted the second improper aggravating factor and specifically found in mitigation that Mann suffered from psychotic depression and feelings of rage. The court also again found that the prior Mississippi conviction established the aggravating factor of previous conviction of a violent felony. We hold that this aggravating circumstance has now been established.

Besides relying on the evidence presented in the first sentencing proceeding, at resentencing the state introduced a copy of a Mississippi indictment charging Mann with burglary both with the intent to commit unnatural carnal intercourse and that he did commit that crime against a named female person. Mann now claims that our first opinion precluded the state from presenting additional evidence. We disagree.

Our remand directed a new sentencing proceeding, not just a reweighing. In such a proceeding both sides may, if they choose, present additional evidence. Moreover, as we stated previously: “We are not presented with a copy of the Mississippi charge document and, thus, cannot determine whether it alleged, and the jury convicted him of, a breaking with intent to commit a crime of violence.” Id. at 581. The state remedied this omission on resen-tencing, and the proof — the indictment, the conviction, and the victim’s testimony — establishes a prior conviction of a violent felony.

In aggravation the trial court also again found the murder to have been committed during the course of a kidnapping and to have been especially heinous, atrocious, and cruel. He found that the three established aggravating circumstances outweighed the single mitigating circumstance and again sentenced Mann to death. Compare Adams v. State, 412 So.2d 850 (Fla.1982) (eight-year-old girl strangled, mitigating circumstances of emotional disturbance outweighed by aggravating circumstances). We find no error and affirm the sentence.

It is so ordered.

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


author: PER CURIAM. BOYD, Justice,

text:
    Davidson Joel JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 62557.
    Supreme Court of Florida.
    May 24, 1984.
    Rehearing Denied Aug. 30, 1984.

      ry Hill, Public Defender, and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Davidson James appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm both the conviction and sentence.

A grand jury indicted James for the first-degree premeditated murder of Dorothy Satey, the attempted first-degree murder of her husband, Felix Satey, and the armed robbery of Mr. Satey. At trial the jury convicted James of all counts as charged and recommended the death penalty. The court sentenced James to death for the murder and to consecutive life sentences for the other crimes.

The crimes occurred on October 30, 1981 when Larry Clark and James entered a sign shop owned and operated by the Sa-teys. After Clark shot Satey twice and robbed him, he and James entered the office/residential portion of the premises. Satey pleaded with them not to harm his wife who was incapacitated due to a physical disability, but then heard a gunshot followed by his wife’s moaning. She died from a single gunshot wound to the head. (In a separate trial Clark received the death penalty for her murder. Clark v. State, 443 So.2d 973 (Fla.1984)).

The night of the murder a detective awakened Satey, who had undergone surgery and who had been sedated, in his hospital room and asked him to look at photographs of five individuals. Satey, who did not have his eyeglasses at the time, tentatively identified the photographs of Larry Clark and of another person as being the men who shot and robbed him and his wife. Later, while wearing his glasses, Satey identified Clark from another photopack and identified James from a third group of pictures. The other person tentatively chosen from the first photopack turned out to be an unidentified juvenile whose picture happened to be on file with the police. The police apparently did not try to find and question the juvenile, and James now claims that withholding detailed information about him violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Brady provides that

suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment irrespective of the good faith or bad faith of the prosecution.

Id. at 87, 83 S.Ct. at 1196. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), however, qualifies Brady’s broad holding somewhat:

[T]o reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.

Id. at 108, 96 S.Ct. at 2400. Moreover, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Id. at 109-10, 96 S.Ct. at 2400-01.

Florida Rule of Criminal Procedure 3.220(a)(2) provides that the state shall disclose “any material information within the State’s possession or control which tends to negate the guilt of the accused as to the offense charged.” The purpose of the rules of procedure was to avoid obtaining convictions by suppressing evidence favorable to a defendant. Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). In the absence of actual suppression of evidence favorable to an accused, however, the state does not violate due process in denying discovery. Antone v. State, 410 So.2d 157 (Fla.1982). This is especially true where a defendant and the state have the same access to the sought-after information. See State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981).

In the instant case the unidentified photograph belonged to a juvenile with sealed records, which might have contained the information James requested. Because of the confidentiality of those records, they could be disclosed by the state or examined by James only on a court order. § 39.12, Fla.Stat. (1981). James concedes that he was aware of the possible existence of the photograph. Further, he raises only the “mere possibility” that the information might be “material” and, apparently, did not seek a court order pursuant to section 39.12. We see no Brady violation here. The photograph was equally accessible to the defense and the prosecution. Indeed, the defense was in a stronger position than the prosecution to argue that the confidential juvenile records should be opened to discovery. We find that the trial court did not err in denying the motion for sanctions for failure to provide discovery.

James also sought sanctions for the state’s failure to produce a tape recording of Satey’s call to the police reporting the shootings and robbery. The state did not concede that such a tape actually ever existed, but, not being able to find the tape, theorized that due to the passage of time any such tape would have been routinely erased prior to James’ request for its production. James has not shown that what Satey said when calling the police would have been material. Moreover, there is no lack of due process if the requested material would not have been beneficial. State v. Sobel, 363 So.2d 324 (Fla.1978). In summary, there was no showing that the tape recording existed, was suppressed, was material, or was exculpatory. The nonproduction of the tape did not prejudice James, and the trial court did not err in refusing to grant sanctions. Sobel; Weise v. State, 357 So.2d 755 (Fla. 4th DCA 1978).

As his second point on appeal James claims that the trial court erred in allowing an expert to use parole reports written by James as known examples of his handwriting. The state did not publish these reports to the jury and did not disclose the nature of the writings. The trial court did not err in allowing the expert to use the reports in his trial testimony.

As his last challenge to the conviction phase of his trial, James charges that the court improperly instructed the jury regarding felony murder. James claims that the state failed to establish “the essential element of nonconsent to entry” and that, therefore, no evidence supported the burglary felony-murder instruction. We recently held that consent is an affirmative defense to, rather than noncon-sent an element of, burglary. State v. Hicks, 421 So.2d 510 (Fla.1982). The critical element in a charge of burglary “is that a defendant enter or remain in the premises ‘with the intent to commit an offense therein.’ ” Id. at 512. The state’s evidence met this test, and we find no error in the felony-murder instruction given here.

James makes several attacks on the instructions given during the penalty proceedings. The trial court, however, gave the standard instructions, and we find no error in his denying the instructions James requested. Moreover, we find no error in the “majority” language used in the verdict form because the trial court orally instructed the jury that life imprisonment would be the appropriate recommendation on a vote of six or more jurors. See Hitchcock v. State, 432 So.2d 42 (Fla.1983).

One instruction, however, requires discussion. In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court reversed our affirmance of Enmund’s conviction and sentence of death for first-degree murder because Enmund himself did not kill, attempt to kill, or intend that a killing take place or that lethal force be employed. James, the accomplice in the instant robbery/killing, asked the trial court to give a penalty proceeding instruction based on Enmund because he, like Enmund, did not commit the actual murder.

The trial court rejected part of James’ proposed instruction, but, based on En-mund, instructed the jury as follows:

In addition to your deliberations on the penalty which you will recommend to me, there is one other task which you must perform. You need to find whether Davidson Joel James killed Dorothy Sa-tey or attempted to kill Dorothy Satey or intended that a killing take place, or intended that a lethal force would be employed.
In determining this, you will rely on the same evidence that you heard in the first phase of this trial. You will use the same rules for deliberations that you were given in the first instructions, and weigh the evidence in the same manner.
Again, the burden of proof is on the State. The State must prove beyond and to the exclusion of every reasonable doubt that Davidson Joel James caused or intended to cause the death of Dorothy Satey, or intended to kill her, or intended that lethal force would be employed.
A reasonable doubt is defined as it was in the first phase, and may arise from the evidence, a conflict in the evidence or the lack of evidence.
Your verdict finding that Davidson Joel James did or did not kill Dorothy Satey, did or did not intend her death, or did or did not intend that lethal force would be employed, must be by a majority of the jury.
You will be given two verdict forms which I will now read to you:
“We, the jury, by a majority of_, find that Davidson Joel James killed Dorothy Satey, or attempted to kill her, or intended that a killing take place or intended that lethal force would be employed;” or
“We, the jury, by a majority of_, find that Davidson Joel James did not kill Dorothy Satey, nor attempt to kill her, nor did he intend a killing take place, nor did he intend that lethal force be employed.”

By an eleven-to-one vote the jury found that James killed the victim or that he “attempted to kill her, or intended that a killing take place, or intended that lethal force would be employed.”

James now claims that the evidence did not support the jury’s finding on the Enmund issue and that the court erred in omitting part of the proposed instruction and in not requiring that the Enmund finding be unanimous. After reviewing the record, we disagree with James and find the evidence sufficient to support the jury’s finding. Prior to Mrs. Satey’s murder, Mr. Satey had already been shot and robbed. The jury could reasonably infer, therefore, that James, by his continued presence, intended or contemplated that lethal force might be used or that life might be taken. We also hold that the Enmund instruction given by the court follows the holding of that case and that the court did not err in refusing to give part of the proposed instruction. Finally, the United States Supreme Court has never held that jury unanimity is a requisite of due process, and in Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976), this Court held that the jury in a capital case could recommend an advisory sentence by a simple majority vote. We do not find that unanimity is necessary when the jury considers this issue.

In sentencing James to death the trial court found no mitigating circumstances, but found that five of the aggravating circumstances listed in subsection 921.141(5), Florida Statutes (1981), applied. The aggravating factors found by the court are: 1) prior conviction of violent felonies; 2) committed during burglary and robbery; 3) committed for the purpose of avoiding or preventing arrest; 4) heinous, atrocious, and cruel; and 5) cold, calculated, and premeditated. James now challenges all but the first aggravating circumstance.

We disagree with James’ claim that the court improperly found the felony-murder aggravating circumstance. We find that ample evidence supports the applicability of this factor. James complains that the court did not instruct the jury on the felony-murder aggravating circumstance, but we find no error in this instance. The court did instruct on pecuniary gain as an aggravating factor, but, in finding the presence of that factor, concluded that it merged with the felony-murder circumstance. Moreover, the jury had been fully instructed on felony murder during the first portion of the trial, and, during the penalty instructions, the court told the jury it could rely on the evidence presented previously.

We next observe that it is clear that this entire episode was a joint operation by James and Clark. The jury found that James met the Enmund test. Although Clark did the actual killing, James was present and actively participated in the events. In such a situation we have held that who is the actual killer is not determinative because each participant is responsible for the acts of the other. Hall v. State, 403 So.2d 1321 (Fla.1981). Under these circumstances we find that the aggravating circumstances which arose because of the motive and method of the killing are equally applicable to the two participants. Considered in this light the trial judge properly found all aggravating factors except especially heinous, atrocious, and cruel. See Clark v. State, 443 So.2d 973 (Fla.1984).

We are left, therefore, with four valid aggravating circumstances and one invalid aggravating circumstance. If there are no established mitigating circumstances, striking invalid aggravating circumstances does not necessarily mean that resentencing is required. Francois v. State, 407 So.2d 885 (Fla.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982). In the instant case James presented a considerable amount of evidence in an attempt to mitigate his sentence. The trial judge, however, found that no mitigating circumstances existed. Finding the evidence insufficient to support one aggravating circumstance, when there are four valid aggravating circumstances and no mitigating circumstances, does not warrant a reversal of the sentence. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981); Elledge v. State, 346 So.2d 998 (Fla.1977).

Following the jury’s recommendation, James asked that the jury be polled. The court refused to do so, but, a week later, reconvened the jury and polled its members as to whether death was the majority’s recommended sentence. James claims that this constitutes reversible error.

As a general rule, once a jury is discharged it cannot be reimpaneled to hear matters relating to the same case. Lee v. State, 294 So.2d 305 (Fla.1974). This is so because after discharge the members lose their separate identity as a jury and because they are subject to outside influences. Id.; Masters v. State, 344 So.2d 616 (Fla. 1st DCA), cert. denied, 352 So.2d 173 (Fla.1977). These concerns, however, are not present in this case. The jury members when reconvened, merely had to say “yes” or “no,” they did not have to hear or consider anything more relating to the case. We find no reversible error in the instant case because reconvening the jury was limited to clarifying a procedural matter.

As his last point on appeal, James requests that his sentence for robbery be vacated pursuant to State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We find Hegstrom inapplicable to this case because the robbery of Mr. Satey was a separate and distinct crime from the robbery and murder of Mrs. Satey. We therefore find no error regarding the conviction and sentence for robbery. Norris v. State, 429 So.2d 688 (Fla.1983).

We find no reversible error regarding James’ conviction of first-degree murder and affirm that conviction. We also affirm the sentence of death.

It is so ordered.

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

BOYD, J., concurs specially with an opinion, in which ADKINS, J., concurs.

BOYD, Justice,

concurring specially.

I concur in the results of the majority opinion affirming the convictions of first-degree murder and robbery and the sentence of death.

I find the trial court’s special “Enmund” instruction, and the majority’s discussion of it, unnecessary because the evidence showed that appellant shared in a premeditated design to effect the death of Mrs. Satey. See Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983). The evidence showed that the fatal shooting of Mrs. Satey was not precipitated by any kind of resistance or provocation from the robbery victims nor by any sudden interference by a third party. The evidence also showed that not only Mrs. Satey but also her husband was shot, that he was shot in the chest and was shot more than once. There was also evidence that after fatally shooting Mrs. Satey the robbers returned from the residential portion of the building to the sign shop looking for Mr. Satey in order to make sure he was dead but that he hid from them and they had to flee before accomplishing their purpose. There was not the faintest suggestion in the evidence that James tried to stop Clark from shooting the elderly victims, nor that he tried to withdraw from the scene in any way. Therefore, this case is doubly distinguishable from Enmund because not only was James a personally present principal (i.e., actually rather than constructively present) in the felonies of robbery and burglary, he was also a personally present aider and abettor of intentional murder, fully sharing in the actual perpetrator’s premeditated design to effect death. See §§ 782.04(1)(a) & 777.011, Fla.Stat. (1981). James’ liability is not vicarious but direct. Because of the sufficiency of the evidence of premeditation, the trial court need not have concerned itself with the Enmund question. See Smith v. State, 424 So.2d at 733.

The existence of sufficient evidence that appellant shared in the premeditated design to kill Mrs. Satey also obviates the Hegstrom argument answered by the majority opinion. This is simply not a felony-murder case, so there is no question of the robbery being a lesser included offense of the murder.

Regarding the sentence of death, I concur in the Court’s affirmance thereof but disagree with the conclusion that the trial court erred in finding the murder of Mrs. Satey to have been especially heinous, atrocious, or cruel. The murder of the elderly victim was preceded by the infliction of severe mental anguish as she heard the intruders shoot her husband and then come looking for her. Moreover, the evidence showed that the wheelchair-bound woman, powerless to escape or resist, did not die instantly but moaned in pain as her life was gradually extinguished. These circumstances clearly set the crime apart from the simple norm of an intentional murder. See Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 1164, 102 S.Ct. 1037, 1039, 71 L.Ed.2d 319, 320 (1982); Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); Knight v. State, 338 So.2d 201 (Fla.1976); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). This Court should construe aggravating circumstances according to the plain language adopted by the legislature. The taking of the life of Mrs. Satey, which her husband begged James and Clark to spare, was cold-blooded, pitiless, depraved, merciless, vile, and especially heinous, atrocious, and cruel. I therefore do not agree with the disapproval of the trial court’s application of this circumstance to this murder, to which it clearly applies.

ADKINS, J., concurs.

      . § 39.12, Fla.Stat. (1981), provides that juvenile records are confidential and can be inspected only on court order by persons deemed to have a proper interest in such records.

        . § 39.031(2)(c), Fla.Stat. (1981), provides that photographs of juvenile offenders can be distributed to law enforcement agencies.

      . Prejudice is the key question in any alleged discovery violation. Holman v. State, 347 So.2d 832 (Fla. 3d DCA 1977).

      . Enmund v. State, 399 So.2d 1362 (Fla.1981).

      . Enmund’s petition presented "the question whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life.” Enmund v. Florida, 458 U.S. 782, 787, 102 S.Ct. 3368, 3371, 73 L.Ed.2d 1140 (1982) (footnote omitted). The Supreme Court answered the question in the negative and reversed “[b]ecause the Florida Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken.” Id. at 801, 102 S.Ct. at 3379. We assume that the death penalty could be appropriate for a defendant who meets these criteria.

      . Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

      . Evidence showed that some money had been taken from the office where Mrs. Satey’s body was found.

      . See Enmund v. State, 399 So.2d 1362 (Fla.1981), reversed in part, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (reversal as to death sentence only).

      . State v. Hegstrom, 401 So.2d 1343 (Fla.1981).


text:
    THE FLORIDA BAR, Complainant, v. Emile Gus MUSLEH, Respondent.
    No. 62074.
    Supreme Court of Florida.
    May 24, 1984.
    Rehearing Denied Aug. 31, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    C. Clyde Atkins, Jr. of Musleh, Piccin, Atkins & Krehl, Ocala; and Louis M. Jepe-way, Jr. of Jepeway & Jepeway, Miami, for respondent.
   PER CURIAM.

This cause is before the Court on cross-petitions for review of a referee’s report and recommendation. We have jurisdiction pursuant to Florida Bar Integration Rule, article XI, Rule 11.09. We adopt the findings of fact and recommendation as to guilt but modify the disciplines to be imposed.

Respondent is a sole practitioner in practice since 1949. In 1980, respondent was indicted by a federal grand jury for conspiring to receive, to transport in interstate commerce and to sell stolen securities. He was found to be incompetent to stand trial and entered Shands Hospital for evaluation and treatment. He was released after five weeks but continued a course of out-patient treatment consisting of drug and clinical therapy. His condition stabilized dramatically under this regimen.

Respondent filed a notice of defense of insanity and was found competent to stand trial. In February, 1982, he was tried and found not guilty by reason of insanity.

In April, 1982, The Florida Bar filed a complaint alleging violations of Rules 11.-02(3)(a) and (b) of article XI of the Integration Rule of The Florida Bar and of Disciplinary Rules 1-102(A)(3), (4), (5) and (6) of the Code of Professional Responsibility. The allegation of violation of DR 1-102(a)(5) was later withdrawn. Respondent answered that the conduct giving rise to the complaint was “not intentional or willful, but occurred during a time when he was mentally incompetent and not responsible for his acts.” Respondent recited the outcome of his trial and also detailed the diagnosis (bi-polar affective disorder — manic-depressive illness) and treatment of his mental condition. He did not deny the nature or the occurrence of the events underlying the criminal charges and the Bar complaint.

At the hearing, respondent presented several character witnesses, including his secretary, several professional colleagues, and personal friends, who testified to his earlier competency in the practice of law, his sudden, marked deterioration in personal and professional behavior around the time of the criminal conspiracy, and his subsequent return to his normal high standard of conduct.

The referee found that respondent was clearly mentally ill at the time of the infractions, and he went on to address the question of whether respondent could appreciate the criminality of his conduct. Relying on the testimony of respondent’s treating psychiatrist, the referee found that respondent could appreciate the nature of his acts.

The referee recommended that respondent be found guilty on all counts and that respondent be suspended from the practice of law for six months. Thereafter, the referee recommended, he should be automatically reinstated but continue on probation for three years. Costs in the amount of $1,413.84 were itemized with the recommendation that they be charged to respondent.

Respondent filed a petition for review and the Bar answered and filed a cross-petition for review.

As a threshold issue, respondent argues that complainant is barred by collateral estoppel from proceeding against him because he was acquitted in the criminal trial. This contention is answered by Florida Bar Integration Rule, article XI, Rule 11.04(2)(c): “The acquittal of an accused in a criminal proceeding shall not necessarily be a bar to disciplinary proceedings.” The rule is justified by the different standard of proof of guilt in the two proceedings, and by the different goals of the two proceedings. In a criminal proceeding, guilt must be proved beyond a reasonable doubt; the standard in bar proceedings is clear and convincing evidence. The Florida Bar v. Hirsch, 359 So.2d 856 (Fla.1978); The Florida Bar v. Quick, 279 So.2d 4 (Fla.1973). Moreover, even though bar disciplinary proceedings share the same goals as criminal proceedings (punishment, deterrence, protection of society), they do so in the context of enforcing the higher standard of duty and conduct required of those who exercise the privilege of practicing law. See Fla.Bar Integr.Rule, art. XI, Rule 11.02. The finding of not guilty of the charged felony in federal court does not necessarily indicate that respondent did not violate the more stringent Code of Professional Responsibility.

Respondent next asserts the defense of insanity, contending that it is available as a defense in all bar disciplinary actions and that the referee erred in finding him legally sane at the time of the charged actions. We note, first, that the test for insanity applied in the federal court was the Model Penal Code test, adopted by the Fifth Circuit in Blake v. United States, 407 F.2d 908 (5th Cir.1969), which defines insanity as a lack of substantial capacity to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law. Florida has declined to accept this definition and still follows the M’Naughten Rule which requires that a person, to be found legally insane, must lack the mental capacity to understand what he is doing and to understand that his act is wrong. Wheeler v. State, 344 So.2d 244 (Fla.1977). Thus, under any circumstances, the holding of the federal court is not binding on these proceedings.

Respondent argues that the Bar failed to prove, by clear and convincing evidence, that he did appreciate the criminality of his acts. The referee, in summarizing the evidence on this point, wrote:

Although a greater number of mental health professionals were of the opinion as expressed during the criminal proceedings that the Respondent could not have willfully, intentionally committed the criminal act in his mental state at the time, and the professionals testifying before this Court as to these proceedings certainly were not unanimous in their view as to the Respondent’s ability to appreciate and understand the illegality of his acts, I believe that the facts in this case support and require a finding that the Respondent’s mental state does not resolve [sic] him of the responsibility for this misconduct but rather should be considered by this Court as mitigating factors. Upon this rationale, I felt compelled to recommend the suspension as discipline in this case.

We have reviewed the record and agree that the evidence supports the referee’s findings.

Further, the referee correctly considered respondent’s mental illness in mitigation of his wrongful actions. This has been the course adopted in past disciplinary proceedings. See, e.g., The Florida Bar v. Perri, 435 So.2d 827 (Fla.1983); The Florida Bar v. Moran, 273 So.2d 379 (Fla.1973); The Florida Bar v. Parsons, 238 So.2d 644 (Fla.1970). The Parsons case is particularly apposite to our consideration of the case at bar. Parsons had been charged in circuit court with passing worthless checks, but he was found not guilty by reason of insanity on each count. The Florida Bar subsequently brought disciplinary charges against him on these and other allegations of misconduct. Parsons’ insanity notwithstanding, the Court accepted the recommended discipline of a one-year suspension, pending restitution to those injured and restoration to mental competence, and probationary supervision.

In light of Parsons and other cases involving mental illness, we find the referee gave the proper weight and effect to respondent’s evidence of mental illness. In reviewing the recommended discipline, however, we find the referee overlooked Rule 11.10(4) of The Florida Bar Integration Rule in recommending automatic reinstatement at the end of a six-months’ suspension. Rule 11.10(4) requires proof of rehabilitation for reinstatement after any suspension of more than ninety days.

In weighing the proper discipline to be assessed on the facts of this case, we are mindful of the three purposes of Bar discipline — punishment of the offender, deterrence of those who might be tempted to emulate the wrongdoer, and protection of the public. The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970). While we recognize the gravity of respondent’s misconduct, we consider in mitigation his severely limited ability to control his activity. We cannot see how greater deterrence or protection of the public will be achieved by a lengthy suspension of one who, until this episode, had an unblemished record and who has now, with the help of ongoing medical assistance, returned to his former level of conduct and practice. We, therefore, suspend respondent from the practice of law for ninety days, the period to begin forty-five days after the filing of this order. We further impose probation for so long as respondent remains active in the practice of law and require, as a condition of probation, the filing of quarterly medical reports with the Clerk of the Supreme Court with a copy to staff counsel for The Florida Bar. The failure to timely file such reports will automatically terminate probation and reopen the judgment in this case. The Court will entertain petitions from either party for modification of the condition of probation if at some time in the future respondent’s condition merits such review. Costs of the proceedings are assessed against respondent.

Accordingly, it is the judgment of this Court that respondent, Emile Gus Musleh, be suspended from the practice of law for ninety days to be followed by automatic reinstatement. Further, respondent is placed on permanent probation subject to the conditions set forth above, and respondent is to pay costs in the amount of $1,550.55.

It is so ordered.

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


author: SHAW, Justice.

text:
    Linda SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 63878.
    Supreme Court of Florida.
    June 7, 1984.
    Rehearing Denied Aug. 31, 1984.
    Richard L. Jorandby, Public Defender and Louis G. Carres, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   SHAW, Justice.

We have by petition for review Scott v. State, 431 So.2d 733 (Fla. 4th DCA 1983), which is in express and direct conflict with this Court’s decision in Bell v. State, 437 So.2d 1057 (Fla.1983). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Petitioner was convicted of and sentenced for manslaughter and child abuse. The district court found that the child abuse count was a lesser included offense of the manslaughter count and that petitioner could be sentenced for the manslaughter conviction only, citing Borges v. State, 415 So.2d 1265 (Fla.1982) and State v. Hegstrom, 401 So.2d 1343 (Fla.1981). The court did not reverse the child abuse conviction.

Petitioner contends that under this Court’s decision in Bell, her conviction for the lesser included offense may not stand. It is true that Bell prevents either a conviction or a sentence for a lesser included crime when a defendant has been convicted of and sentenced for the greater crime. Were child abuse a lesser included offense of manslaughter, Bell would require quashing the portion of the district court’s decision upholding petitioner’s conviction for child abuse. The district court applied the “category four” analysis of Brown v. State, 206 So.2d 377 (Fla.1968), to support its holding. The proper test, however, is whether the statutory elements of each offense require proof of a fact that the elements of the other do not under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); State v. Carpenter, 417 So.2d 986 (Fla.1982); Borges v. State. If so, the two offenses are separate. The district court erroneously analyzed the allegations and proof rather than the statutory elements.

Applying the Blockburger test, we find that section 782.07, Florida Statutes (1979), the manslaughter statute, requires proof of the killing of a human. Proof of this fact is not required by the child abuse statute, section 827.04, Florida Statutes (1979), which requires proof that a child was abused. To prove manslaughter it is unnecessary to prove that a child was killed. Manslaughter and child abuse are separate offenses.

We therefore quash that portion of the district court’s decision finding child abuse a lesser included offense of manslaughter and reversing the sentence for child abuse.

We see no reason to disturb the remainder of the decision.

It is so ordered.

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

ADKINS and OVERTON, JJ., dissent.

      The legislature adopted the Blockburger test when it amended section 775.021(4), Florida Statutes, in 1983.