text:
    Jimmy HUMPHREY v. STATE.
    3 Div. 846.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.

      W. Mark Anderson, III and James R. Cooper, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

This is an appeal by an indigent from a conviction for assault with intent to murder, wherein the appellant was convicted by a Montgomery Circuit Court jury and sentenced to twenty years imprisonment.

This appeal is submitted to this court on briefs, and the pertinent facts are as follows:

Willie Moulton testified that he was the owner of the Moulton Cafe in Montgomery, Alabama, on the night of July 15,1976. He stated that on the night in question there was a “juke box” and a “record hop” with door prizes. The prizes were two quarts of wine and one-half gallon of gin. As the patrons entered the cafe, they were handed a number and, later, three numbers were drawn to determine the winner. No one claimed the third number drawn, so another number was drawn and the holder was awarded the one-half gallon of gin.

After the gin was awarded, Moulton testified that the appellant came into the cafe and demanded the gin claiming that he held the first number drawn for it. After appellant was denied the prize, Moulton stated that the appellant cursed him and started a fight with him. According to Moulton the appellant then kicked him and threw a bottle at him. Moulton then got a pistol from behind the counter and fired a shot into the air.

Moulton testified that, when the appellant left the cafe, he shouted that he would be back and shoot someone. Moulton stated that the appellant left the cafe with some other people but, as they drove away, the appellant warned that he would return, and did not care “who I shoot when I get there.” According to Moulton, the appellant was wearing an “old flopped down white hat and white shirt and pair of bluejeans.”

About an hour later, Moulton was shot in the face, resulting in permanent blindness in both eyes.

Emma Durisseau testified that she was at the cafe on the evening in question and first recognized the appellant during the fight, when he kicked Moulton in the back. She explained that the appellant was arguing about a raffle ticket, and threw a bottle at Moulton, after which Moulton shot into the air. She stated that when the appellant rode away from the cafe in a car, he “screamed out he would be back and he would be ready to know who G__ d— he shoot.” She also stated that the appellant was wearing “a round white hat pulled down and jeans and a light-colored shirt.” During cross-examination, Durisseau admitted that she noticed the appellant for the first time, on the night in question, but stated that she was sure he was the person who threw the bottle at Moulton. She also testified that when the appellant and the others left, “Somebody in the car yelled out. ‘We are going to get a shotgun and come back and shoot everybody.’ ”

Minnie Williams testified that she was sitting with Willie Washington, on the hood of a car parked in front of the Moulton Cafe, when the shooting occurred. She stated that she first saw the appellant when he came around the corner of the building with a shotgun. According to Williams, she observed the appellant looking through the window of the cafe. When asked how long she observed the appellant looking through the window, she stated:

“I was talking to Willie so I don’t know . I don’t know, I looked around this one and that’s when I saw him, and that’s when the shotgun went off. That’s all I saw. I was on the ground.”

Further, she said that she had identified the appellant from five photographs, but admitted, during cross-examination, that the identification was made about a year after the shooting. She also admitted that she had not seen the defendant since the night in question, but did say, “I saw him when he fired that’s when I fell.”

Detective Billy Knighten, of the Montgomery Police Department, testified that he investigated the shooting at the Moulton Cafe and stated that he found a white cap near the side of the building, close to the door that leads to the kitchen.

Further, Knighten identified exhibits 11, 12 and 13, and stated that, on the inside of the Moulton Cafe, just left of the front door, he found a piece of wadding which had “come out of a four ten gauge shotgun.” He also stated that he found a part of the wadding on the inside of the cafe near the window. Knighten said he found a part of the “birdshot” in the wall.

During the trial Clifford King, an investigator for the district attorney’s office, identified certain photographs describing the scene at the Moulton Cafe.

After being recalled to the stand, he identified the shotgun, State’s Exhibit 14, and stated that it had been brought to his office by the appellant’s mother at his request. He explained that the shotgun was a “four hundred and ten gauge single shot.”

Detective Leo Blankenship of the Montgomery Police Department stated that he did the “follow up” investigation of the shooting at the Moulton Cafe. According to Blankenship, he asked Minnie Williams to attend a photographic lineup, in which she positively identified the appellant.

The State Toxicologist, Thomas Hopen, testified that State’s Exhibits 11, 12,13 and 14 had been in his possession. He stated that these were; a “plastic collar,” “paper wadding,” and a “pellet,” which were all “consistent with having been fired out of a fourteen gauge shotgun shell.” However, he explained that the pellet could have been fired from any gauge shotgun. Further, he explained that, due to the fact that the shotgun was a “smooth bore weapon,” there was no method to “make a comparison of anything fired through that barrel and say it had been definitely fired in that weapon.”

Gussie Lee Humphrey, the defendant’s mother, identified the shotgun, State’s Exhibit 14, and stated that it came from her home. She denied that the appellant had taken it on the night in question, or that he had left the house again after he had arrived home. She testified that the gun had a broken stock and was in that condition at the time she had acquired it.

The appellant’s sister, Ivory Pearl Humphrey, was living at the Humphrey home at the time of the shooting and confirmed her mother’s testimony.

The appellant took the stand in his own behalf, and denied that he had kicked Moul-ton or thrown a bottle at him. He maintained that he left the cafe in the car and denied that anyone in the car had made any threats. The appellant stated that he did not return to the cafe and did not shoot Moulton.

I

The appellant contends that the shotgun, which belonged to the appellant’s mother, should not have been introduced into evidence for three reasons; first, it was not properly identified as the weapon used in the assault; secondly, the chain of custody was not established; and finally, it was not relevant to the issues on trial.

Regarding the appellant’s assertion that the shotgun introduced was not relevant nor properly identified, we find that the State offered the testimony of Minnie Williams to the effect that the appellant had a shotgun when he returned to the cafe. Further, Detective Knighten and the toxicologist stated that the wadding from State’s Exhibit 11 was consistent with having been fired from a 410 shotgun.

The State toxicologist also testified that State’s Exhibit 14, was a 410 shotgun, and that, although he stated that “the pellet [found at the scene] could have been fired from another gauge shotgun,” he also stated that it could have been fired from the 410 shotgun.

The collar and the wadding, which were consistent with being fired from a 410 shotgun were found in the cafe after the shooting. There was also evidence that the defendant had access to a 410 shotgun. His mother, during her testimony, admitted that she had owned the 410 shotgun, admitted into evidence as State’s Exhibit 14. We also note that Williams testified that she saw the appellant fire a shotgun into the cafe.

As stated in Corpus Juris Secundum: "Evidence to show that accused owned, possessed, or had access to, tools, implements, weapons, or any articles with which the particular crime was or might have been committed is relevant, at least where accused is identified as having been at or near the scene of the crime at about the time of its commission, as is also evidence that he owned or had in his possession weapons with which the crime was or might have been committed prior to, or after, the commission of the crime. On the other hand, evidence of possession by accused of weapons, or various poisons, not in any way connected with the crime charged is inadmissible.” 22A C.J.S. Criminal Law § 611.

In Lewis v. State, Ala.Cr.App., 335 So.2d 426, this court, in a footnote, cited Douglas v. State, 42 Ala.App. 314, 163 So.2d 477, which stands for the proposition that a jury may properly compare markings on shotgun shells and, although shotgun marks may not be as distinctive as “riflings,” such a deficiency is a question of the weight to be given them. Therefore, the introduction of the shotgun was relevant, and it would be for the jury to determine the weight it would give to the shotgun, in considering the appellant’s guilt.

This court, in Means v. State, 51 Ala.App. 8, 282 So.2d 356, observed that, even though a witness could not say positively that the knife introduced into evidence was the same knife used to stab the deceased, it should not be excluded from the jury’s consideration, in view of the fact that the witness did say it was the same or a similar knife. See also, Shiflett v. State, 265 Ala. 652, 93 So.2d 526.

Under these facts and the authorities cited above, it is our judgment that, because the appellant had access to the shotgun owned by his mother and was seen at the time of the shooting with a shotgun in his possession, the admission of the shotgun was proper. The shotgun was relevant as possibly being the weapon used at the time of the shooting. At any rate, the shotgun was relevant to the issues at trial, and the weight to be given to this item of evidence was for the jury to determine.

Turning to the appellant’s assertion that a proper chain of custody was not shown, we find that Clifford King testified that he had requested the appellant’s mother, prior to trial, to bring the shotgun to his office. Further, the appellant’s mother and sister testified that the weapon introduced was that belonging to the appellant’s mother. She also identified the gun as hers because she recognized the shotgun’s broken stock, which she said it had at the time she acquired it. She also explained that the hand guard on the shotgun was a “little loose.”

Based upon the foregoing, we hold that, because the appellant’s mother identified the shotgun as belonging to her, any question as to whether it was the weapon she had given to the investigator was resolved.

The purpose of establishing a chain of custody is to show, to a reasonable probability, that no one had tampered with the shotgun which was introduced into evidence. See Sexton v. State, Ala.Cr.App., 346 So.2d 1177; 22A C.J.S. Criminal Law § 709. Here, there is no contention made that the shotgun had been tampered with, nor was it shown that the police had a motive or an opportunity to tamper with the weapon. Bell v. State, Ala.Cr.App., 339 So.2d 96.

The shotgun was introduced merely to show that the appellant had access to a 410 gauge shotgun. No tests results were introduced concerning the shotgun, and the jury was entitled to consider this item of evidence and to allow it whatever weight they deemed sufficient under all the facts presented to them in the case.

As to the relevancy of the admission of the shotgun, we are of the opinion that the court correctly admitted it into evidence. The shotgun had a reasonable tendency to prove or disprove a material fact in issue at the trial. See also, Manson v. State, Ala.Cr. App., 349 So.2d 67; Lucy v. State, 49 Ala. App. 116, 269 So.2d 134; McElroy, Alabama Evidence, § 21.01(1), at pp. 15-16.

The determination of whether the shotgun was relevant to the issues at trial was addressed to the trial court’s discretion. Without a showing of an abuse of that discretion, and no such showing has been made, the evidence, in our judgment, was correctly admitted. See Strickland v. State, Ala.Cr.App., 348 So.2d 1105.

II

Appellant complains that the trial court erred in allowing the results of the photographic lineup into evidence. He argues that the pictures were referred to by number on information sheets and that some of the numbers had been changed. Picture No. 1, the appellant claims, “was listed on the form as being that of a 57 year-old negro man, when it was actually a picture of a young man.”

From the transcript of evidence, we have found no indication that anyone had changed the numbers on the photographs. Further, Williams, in identifying the appellant’s picture, from aught that it appears, was unaware of any change in numbering.

Regarding the appellant’s insistence that the information on the sheets concerning “a 57 year-old black man” was such that would have tainted the identification procedure, we find that the evidence showed the appellant to be 23 years of age. Also, the photographs shown to Williams were of persons whose ages were 20, 31, and 24, and the appellant, whose age was then unknown, but he was considered to be young. In any event, the ages of all of the parties in the photographic lineup were comparable to appellant’s.

We fail to see how this prejudiced the appellant in any way, especially in view of the fact that Williams was not aware of the ages written on the backs of the photographs. Further, the fact that Williams was an eyewitness to the shooting, and saw the appellant shoot into the building with a shotgun was sufficient to dissipate any possible taint of the identification, if any existed. See Cannon v. Alabama, 5 Cir., 558 F.2d 1211, 1217 n. 13. Considering the totality of the circumstances, we find that the use of the pictures was proper. Caver v. Alabama, 537 F.2d 1333; Williams v. State, 51 Ala.App. 1, 282 So.2d 349.

Ill

In reviewing the record and transcript of evidence we are of the opinion that the evidence was sufficient to present a question of appellant’s guilt for the jury and would support the jury’s verdict. Therefore, the court’s denial of appellant’s motion to exclude, and his motion for a new trial was proper. The judgment of conviction by the Montgomery Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Sammie Lee LAMAR v. STATE.
    3 Div. 983.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    R. Howell Dean, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant-defendant was indicted in April 1975 for a robbery, which the evidence shows occurred in January 1975. By reason largely of his absence from Alabama he was not tried until September 1978. A jury found him guilty and fixed his punishment at imprisonment for eleven years. Upon sentencing him for imprisonment for thirty years, the court said:

“THE COURT: The Court is of the opinion that armed robbery is one of the most serious offenses we have in this section. And I am going to treat this Jury’s verdict, as far as the number of years, as advisory. And based on the Jury’s verdict of guilt of robbery—and it was armed robbery, and you were found by this Jury to have a weapon—I am going to find you guilty of robbery, pursuant to the Jury’s verdict.
“You say you have nothing to say whether the sentence of the law should not now be imposed upon you?
“THE DEFENDANT: No, sir.
“THE COURT: I am going to sentence you to thirty years in the penitentiary. You are now committed to the custody of the Sheriff.”

We must hold that the court was in error in changing the punishment fixed by the jury from imprisonment for eleven years to imprisonment for thirty years.

At the time of the trial, Code of Alabama 1975 was in effect. According to Acts of Alabama 1977, No. 20, and the Proclamation of the Governor, as shown by Code of Alabama 1975, Vol. I, vi, its effective date was October 31, 1977. However, by said Code, § 1-1-9, it is provided:

“This Code shall not affect any existing right, remedy or defense, nor shall it affect any prosecution now commenced, or which shall be hereafter commenced, for any offense already committed. As to all such cases, the laws in force at the adoption of this Code shall continue in force. But this section does not apply to changes in forms of remedy or defense, to rules of evidence, nor to provisions authorizing amendments of process, proceedings or pleadings in civil cases.”

By Code of Alabama 1975, § 13-3-110, we find:

“Any person who is convicted of robbery shall be punished by imprisonment in the penitentiary for not less than 10 [ten] years, or as otherwise specified by law.”
By Code of Alabama 1940, as amended, Tit. 14, § 415, it was provided:
“Any person who is convicted of robbery shall be punished, at the discretion of the jury ... by imprisonment in the penitentiary for not less than ten years.”

It is to be seen from the above quoted statutory authority that for the particular robbery here involved, one committed before the effective date of Code of Alabama 1975, the trial court had no authority to fix the punishment, that the sole authority for fixing the punishment was in the jury that determined the issue of guilt or innocence. This conclusion is readily reconcilable with Burton v. State, Ala.Cr.App., 364 So.2d 394 (1978), in which case the robbery considered occurred in January 1978.

The evidence fully supports the verdict finding the defendant guilty of robbery. There is no contention to the contrary. The only other contentions of appellant are as to the admission in evidence of defendant’s confession and a failure to give one of defendant’s refused charges.

As to the admission in evidence of defendant’s confession, defendant requested and was given the opportunity before the trial commenced to present evidence out of the presence of the jury. The evidence consisted of the testimony of Detective Cody Wood and the defendant. According to the testimony of defendant, the confession would not meet either the pre-Miranda or the post-Miranda requirements. On the other hand, according to the testimony of Detective Wood, all of such requirements were fully met. The court was not in error in admitting the confession in evidence.

The court refused defendant’s requested written charge No. 9:

“The Court charges the jury that if the jury upon considering all the evidence, have a reasonable doubt about defendant’s guilt, arising out of any part of the evidence, they should find the defendant not guilty.”

The principle stated in said charge was substantially and fairly given to the jury in the court’s oral charge, in part as follows:

“. . . But reasonable doubt is a doubt for which you can assign a reason. A reason that arises from the evidence that you have heard, either all of it or any part of it, if after listening to it all or any part of it, you ask yourself the question — is the defendant the guilty one? And if the answer you get back — I doubt that he is — and if that doubt arises from this evidence, either all of it or part of it, then that is the kind of doubt the law is talking about."

The court was not in error in its refusal of Charge 9. King v. State, Ala., 356 So.2d 1220 (1978), rev’g Ala.Cr.App., 356 So.2d 1216.

Other than as heretofore found as to the imposition of a sentence of thirty years, instead of eleven years, the punishment fixed by the jury, we find no error in the record prejudicial to defendant.

The judgment of conviction should be affirmed. As to the sentence, we see no occasion to remand the cause. The sentencing process was regular; the only mistake made was as to the term of imprisonment, which had already been finally and legally fixed by the jury, leaving no discretionary act for the trial court to perform. Appellant is entitled only to a reduction of the term of his sentence from thirty years to eleven years imprisonment. This can, and should be, accomplished by an order of this Court correcting and modifying his sentence accordingly. The sentence should be corrected and modified by this Court so as to sentence defendant to eleven years imprisonment in the penitentiary, instead of thirty, and as thus modified the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

MODIFIED AND AFFIRMED.

All the Judges concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    James L. ROBINSON, alias, v. STATE.
    4 Div. 691.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Samuel L. Adams, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for robbery, tried before a jury, convicted, and sentenced to ten years imprisonment. Judgment was properly entered and this appeal is taken therefrom.

The victim identified defendant in court as the one who robbed him. An accomplice testified as a witness for the State and identified appellant as the robber.

The direct testimony of the victim covered six pages of transcript paper. The searching cross-examination covered fourteen pages, re-direct two pages, and recross three pages. So we have seventeen pages of cross-examination.

On page fifteen of the record the following colloquy between defense counsel and the victim appears.

“Q Okay. Let’s get down to why you think it was James Robinson. I am not mad with you, not trying to jump on you,
I am not trying to, don’t want to put you on the defensive. I just want to find out what the truth is.
“A I am not lying about it.
“Q I know that and I remember talking with you before and I think we taped you before, didn’t we ?
[Emphasis supplied]
“A I believe you did. Yes, sir.”

Again on page twenty-five of the record we copy a second colloquy between defense counsel and the victim.

“Q Did you tell me that?
“A I told you Kirkland.
“Q Do you have the tape?
“MR. SORRELLS: We object to him making a statement like that in front of the Jury.
“THE COURT: Yes.
“MR. ADAMS: That is all at this time.”

Appellant asserts in his brief that the - circuit court’s adverse ruling, supra, (if in fact it was a ruling) denied him the right to cross-examination; that this denial was prejudicial and error to reverse.

We don’t agree. As we have pointed out, defendant was allowed free and liberal cross-examination (17 pages). It appears in the first aforequoted colloquy that the victim had nothing to do with the taping, and inference may be drawn that defendant’s counsel (we) did the taping and kept the tapes. Anyway, there is nothing in the record to indicate that the victim (the witness) ever had possession of the tapes.

If we may assume that the court in the second colloquy, supra, sustained the objection, the ruling was harmless error and will not justify a reversal. Rule 45 ARAP.

We fail to find any reversible error in the record. Appellant does not insist on any error other than the ruling about the victim’s alleged possession of the tapes.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Cleveland FORD v. STATE.
    4 Div. 705.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.

      Brian W. Dowling, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen. for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Prosecution and conviction in the Circuit Court, Family Division, Juvenile Section of Houston County, for non-support of appellant’s three minor children. Punishment fixed at hard labor for Houston County for a period of twelve months.

The affidavit alleges inter alia as follows: “. . . . Affiant further says that Cleveland Ford a parent, did, within twelve months before making this affidavit, without lawful excuse, desert, or wil-fully neglect, or refuse or fail to provide for the support and maintenance of Alfonso Ford age 3, Angela Ford age 2, Cleveland Ford, Jr. age 1 year, his child or children, the said child or children then and there being under the age of eighteen years, in Houston County, Alabama, and in destitute or necessitous circumstances, in said County against the peace and dignity of the State of Alabama.”

The affidavit is dated October 4, 1978. Arrest followed the next day.

The warrant and prosecution is based on Section 30 — 4-51, Code of Alabama 1975, which contains an essential element that the victim or victims of the non-support charge must be “. . . then and there in destitute or necessitous circumstances

We have closely read and examined all of the evidence appearing in the record and conclude therefrom that the three children, supra, were not in destitute or necessitous circumstances, and that the court erred in denying defendant’s motion to exclude the State’s evidence.

It appears from the evidence that the mother of the children, after being married to defendant for a period of about four years, left his bed and board in Dothan, Houston County, and took the children with her. The record does not specifically indicate any reason for the separation. This separation occurred around the first or the middle of August, 1978. She left her husband not more than two months before the warrant of arrest was issued. After she moved out defendant came after her and tried to get her to come back home. She refused.

The wife testified that her husband paid her $185.00 between the date of the separation and October 6, 1978.

The wife further testified that her mother kept her children and a child of her sister. Eight lived in a rented house with three bedrooms, one of which rooms she and her three children occupied. It had twin beds. The mother, prosecutrix’s sister, and her baby and her niece also occupied the house. They all shared the rent and utilities and paid the mother for baby sitting.

The prosecutrix worked 40 hours per week at $2.65 an hour while the husband (defendant) worked and received $3.40 to $3.65 an hour.

It further appears that neither the mother nor the children drew welfare pay of any kind or food stamps.

The mother testified that her husband’s medical insurance covered the children and that there were no medical bills outstanding. She said the “child” had adequate milk and is still on the bottle.

“Q So, really you are in the same situation now as you were three or four months ago when you were with Cleveland, isn’t that right.
“A Yes, but when I was living with Cleveland, I was still looking for someplace else bigger to stay, yes, and he knew that.”

It appears in the evidence that the prose-cutrix is unhappy because she does not have a home of her own to live in.

The evidence indicates that the mother and her children do not live in discomfort or are in need and want. It is true that they live on a close margin, but no where does it appear that the children are in destitute or necessitous circumstances. The mother could use more money to provide more comforts for herself and three children, but unfortunately they do not have it.

“Q Are your children doing without anything?
“A Right now they just need some winter clothes and stuff, they are eating and sleeping.
“Q What do they need — clothes?
“A Yeah, clothes, but mainly what I need — I need money. I need a house and — I am living with my mother and I can’t put money back and try to get a house of my own, plus pay utilities and stuff like that.
“Q What do the children need?
“A That is what they need — they are going to need that.”

Because of the absence of proof that the children are destitute or in necessitous circumstances as charged, we hold that the judgment should be reversed. Turner v. State, 343 So.2d 591 (Ala.1977). Also the cause should be rendered because of insufficient evidence. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

We might add before closing that we are impressed with the idea that the mother became unhappy and left because the husband would not buy a house of their own.

The judgment is reversed and the cause is rendered. The Court will discharge defendant from this prosecution. Another may be instituted for a subsequent violation.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND RENDERED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Reuben LONG v. STATE.
    5 Div. 432.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.

      Milton C. Davis, Tuskegee, for appellant.
    William J. Baxley, Atty. Gen. and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is an appeal by Reuben Long, an indigent, who was convicted of rape by a circuit court jury in Macon County, and sentenced to ten years imprisonment.

During trial, appellant filed a motion to exclude the State’s evidence, and that motion, along with his subsequent motion for a new trial, was denied. An application for probation was made and denied and notice of appeal was given.

The pertinent facts in this case are that the victim was a student at the Macon County Retardation Rehabilitation Center, whose director is Mrs. Sally Lowe Richardson. Mrs. Richardson testified that the school is designed for people who are retarded and physically handicapped. She stated that on May 21,1976, the victim was a student at the center, classified as “educable mentally retarded,” and was considered a person of “mild retardation.”

Mrs. Richardson stated that the appellant, Reuben Long, was employed by the center, and that May 21st was his “last day of employment.”

The victim’s mother testified that her daughter was twenty years of age at the time of the incident and had been attending “Retarded and Rehabilitation Activities Center” for approximately three years. Her mother stated that she had to “see for her because she don’t know. . . . She don’t understand nothing.”

Her mother testified that the day in question was the last day of school and that her daughter usually arrived home “about twenty minutes after three” in the afternoon. On this particular day, however, she arrived later than usual. Her mother stated that her husband, the victim’s father, was on the porch at the time the bus stopped to allow her daughter to get off, but that she [the victim’s mother] was not on the porch at the time. When she learned from her husband that the bus was approaching, she went to the porch but was unable to stop the bus after her daughter got off.

After the victim left the bus and came to the house, her mother stated that she had noticed that “[s]he wasn’t properly dressed, her clothes hanging all off her — they were dirty, and I asked her what had happened.” Her mother stated that the victim had then made a complaint of what had occurred. Her mother said that she then asked her daughter to undress. Later, her daughter showed her the location at which the offense had occurred. The next day the mother carried the victim to Dr. Storey in Farmville, Alabama.

The victim testified that she was twenty-two years old and attended the M.C.C.R. School which Mrs. Richardson was “the head of.” She acknowledged that she had been going to the school for the last three and a half years.

During the trial, she identified the appellant as the person who drove the school bus and said that he was driving the bus on the last day of school, when the rape occurred. Further, she said that on the day of the offense she was the last student on the bus, and that the appellant’s son was on the bus at that time. She stated that after the only other student had left the bus, the appellant told his son, who was riding with them, “to get off and take a walk.”

At that time the bus was “on the dirt road,” which she acknowledged, was not the road regularly used when going to or from school, and it was not near where she lived. She stated that she was sitting on the last seat on the bus at the time. When his son left the bus, the appellant told the victim to take her clothes off. She stated that she refused and “he just took them off.” She said that he did not take her blouse off but did take her underpants off.

According to the victim, “he [the appellant] put his privates in me . . . the front part.” She acknowledged that “in front” meant between her legs. Further, she stated that she “was trying to fight him.”

The victim stated that, after the sexual act, the appellant put her clothes back on and asked if she was going to tell her mother. When she responded that she was, “he said I’d better not, better not tell.”

At that point, the appellant’s son returned to the bus and said “somebody was coming.” The appellant then told his son to let the hood of the bus down and drove the bus away.

The victim said that she was taken home and that, when she left the bus, she saw her mother. She stated that she told her mother what had occurred and then showed her mother the location at which the bus had been stopped and the act committed. She also said that her mother took her to a doctor.

Mrs. Richardson was recalled and presented, over defense objections, certain official school records alleging that psychological tests had been given to the victim. Portions of these documents, indicating that the victim had an I.Q. of 32 or below, were admitted into evidence over defense objections. Moreover, the trial court took judicial notice of the fact that most lay persons are familiar with the term I.Q.

Julia Battle stated that, on the day in question, she recalled seeing a bus from the Macon County Rehabilitation Center on the road near her house, and that the bus did not usually travel that particular road.

At the completion of this witness’ testimony, the State rested its case and the defense made a motion to exclude the State’s evidence. The motion was denied and the State reopened its case and recalled Mrs. Richardson. She testified, over defense objections, that the victim was not able to consent to sexual intercourse or to appreciate the consequences of such an act. During cross-examination she admitted that the school taught sex education as a regular part of its curriculum.

At the end of Mrs. Richardson’s testimony, the State rested and defense called the appellant, Reuben Long. He testified that he was employed by the Macon County Retardation Center as a bus driver and that the victim was one of nineteen students in his care. Further, he stated that she was the last passenger to be transported that day. The appellant testified that, on the day in question, he delivered the victim to her home at the regular time and did not at any time rape her or attempt to have sexual intercourse with her.

At the end of the appellant’s testimony, the defense rested and the case was submitted to the jury.

I

The appellant contends that the State failed to establish a prima facie case of rape. He argues that there was no evidence of force, coercion or actual penetration.

Rape has been defined as the unlawful carnal knowledge of a female by a male, forcibly and against her will. Thomas v. State, 53 Ala.App. 232, 298 So.2d 652. The degree of force necessary for a conviction need not be such as to place the victim under such reasonable apprehension of death or bodily harm as to overpower her will. It is sufficient that the female was under such duress that the act was accomplished against her consent. Brummitt v. State, Ala.Cr.App., 344 So.2d 1261. According to all authorities, actual penetration of the female’s sex organs is necessary to constitute carnal knowledge, which is synonymous with sexual intercourse. Harris v. State, Ala.Cr.App., 333 So.2d 871. Penetration to a particular extent is not required but “some degree of entrance of the male organ within the labia pudendum is essential.” Harris v. State, supra; 75 C.J.S. Rape § 10b. Whether such penetration is accomplished is a question of fact for the jury. Hacker v. State, 31 Ala.App. 249, 15 So.2d 336.

The testimony recited above shows that there was penetration and that it was without the victim’s consent.

From the record, the following questions were asked of the victim:

“Q. All right, where, what part of you
did he put his thing we call penis in?
“A. Front.
“Q. Is that down between your legs?
“A. Yes.
“Q. Is that where you wee-wee?
“A. Yeah.
“Q. After he got through doing what he was doing to you, what did you do and what did he do?
“A. I was trying to fight him.”

In view of the foregoing, we believe there was sufficient evidence from which a jury could determine whether there was penetration and whether it was accomplished against the victim’s will. Hacker v. State, supra; Brummitt v. State, supra.

In our judgment, the facts were sufficient to prove the elements of the offense and would support the jury’s finding of appellant’s guilt. Therefore, it is our judgment that the denial of the appellant’s motion to exclude was proper.

II

The appellant maintains that testimony by a lay witness as to the victim’s mental capacity is not admissible without a “proper predicate” being laid. He further claims that the State failed to prove that the victim was “mentally incompetent to give consent to intercourse, if indeed intercourse occurred.”

Appellant argues that the State endeavored to prove, through testimony of the director of the Macon County Retardation Rehabilitation Center concerning documents purported to be official records of the school, that the victim was incompetent to give her consent. He insists that the court was in error in allowing State's Exhibit A, a statement indicating the victim’s intelligence quotient, to be entered into evidence.

We have searched the transcript of evidence and have found that the appellant emphatically denied having intercourse with the prosecutrix.

From the record, the following questions were asked of the appellant:

“Q. All right, did you in any way touch [the victim]?
“A. No, I didn’t.
“Q. Did you have sex with [her]?
“A. No, I did not.
“Q. Did you take her clothes off?
“A. No, I did not.
“Q. Did you rape [her]?
“A. No, I did not.
“Q. Did you in anyway have any kind of physical contact with her?
“A. No, I did not.”

Under these facts, the issue of the victim’s consent is not presented for this court’s review. The appellant does not claim that the act occurred as a result of the victim’s consent, but is maintaining his innocence in the strongest terms. If the evidence concerning the State’s Exhibit A was in fact error, the appellant did not “demonstrate that such error was probably injurious.” Kennedy v. State, 291 Ala. 62, 277 So.2d 878.

Also, we note that in Jenkins v. Avery, 257 Ala. 387, 59 So.2d 671, the Supreme Court of Alabama allowed the admission of school records which were identified by the custodian thereof. There, the custodian was allowed, in a suit to quiet title, to testify to the content of school records belonging to the defendant.

We also note that § 12-21-48, Code of Alabama 1975, states that:

“Any writing or record . . . shall be admissible in evidence in proof of said act, transaction or event if it was made in the regular course of any business . . .”

For the purpose of that section, “business” is defined as “a business, profession, occupation and calling of every kind.” § 12-21-43, supra. See also, Love v. State, 23 Ala.App. 363, 125 So. 685.

In conclusion, we note that no objection was raised to the victim’s competence to testify at trial.

Ill

Finally, the appellant insists that the trial court erred when it allowed the mother of the victim to testify regarding the details of the complaint and matters done outside the presence of the appellant.

The following testimony concerns the victim’s complaint to her mother:

“Q. All right, at that time and place, did she make a complaint to you?
“A. She did, said he slapped her.
“MR. DAVIS: Your Honor, I object to that.
“THE COURT: No, don’t say what he said, all we can put in, and that’s what he’s objecting to is the complaint that she made a complaint.
“Q. What did you see, observe when you made her [the victim] undress?
“A. That someone had had a intercourse which was him.
“MR. DAVIS: Your Honor, I object to that and I ask that it be stricken and I ask for a mistrial.
“THE COURT: Overrule your motion for a mistrial, now disregard the statement, you can understand that she wouldn’t know anything about whether they had intercourse with the defendant or not. You understand that, strike that from the record.
“MR. DAVIS: I ask for a mistrial, the witness and the prosecutor are ignoring the instructions to the court in deliberating and improperly asking questions.
“THE COURT: You ought not to do that now, you don’t know that he did it.
“MR. YOUNG: Your Honor, she has never been in court in her life.
“MR. DAVIS: But you have though.
“THE COURT: I’m just telling the jury now that you understand that her statement there is stricken from the record. She shouldn’t have said it, but she didn’t know.”

A motion for a mistrial implies a miscarriage of justice, and is only granted where it is clearly manifest that justice cannot be insured. Crouch v. State, 53 Ala. App. 261, 299 So.2d 305. Such a motion does not serve the same function as an objection or a motion to strike and is not ordinarily used to indicate a mere erroneous ruling of law. Diamond v. State, Ala.Cr. App., 363 So.2d 109.

Under the foregoing facts, it appears that the trial judge took curative steps to insure that unresponsive answers would not prejudice the accused. In the first instance, the witness was admonished and additionally, in the second, the jury was told to disregard the response. If any possible prejudice was generated by the witness’ remarks, it is our judgment that prompt curative action by the court was sufficient to remove it.

We have examined the record, including the transcript of evidence in this case and have found no prejudicial error. Therefore, the judgment of conviction by the Macon Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Jerome BLACK v. STATE.
    6 Div. 901.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    William B. Lloyd, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant appeals from a judgment of conviction for possessing heroin for which he was sentenced to fifteen years in the penitentiary. The only evidence came from a search.

We are pressed for a reversal on the contention that the affidavit upon which the search warrant was issued was insufficient and invalid. There are other matters raised on this appeal but, in our view, it is unnecessary to treat any of the issues except the validity of the affidavit.

The affidavit reads:

“AFFIDAVIT FOR SEARCH WARRANT “STATE OF ALABAMA JEFFERSON COUNTY CITY OF BRIGHTON
“Before me, Judge of the Recorders Court, City of Brighton, Alabama, personally appeared Dan W. Hill who, after being duly sworn, upon his oath deposes and says as follows: I have received information from a person whose record of reliability for correctness has been good; that there is presently contained on the premises at 1510 Clay Street, Brighton, Alabama illegal drugs, to-wit: Heroin, Amphetamines and Barbiturates. The aforesaid informer reports to me that Lu-die Johnson who lives at this address has recently received two ounces of uncut Heroin.
“On the day of October 26, between the hours of 5:00 p. m. and 7:00 p. m. I observed seven persons go into the residence at 1510 Clay Street, Brighton, Alabama and stay for less than ten minutes and then leave. On the morning of October 28,1 observed four different automobiles arrive at or near this residence and at least one occupant from each automobile go into this residence and stay for a short period of time and then leave. “Based on the information received from my reliable informer and on my personal observations on the unusual large amount of different individuals and vehicles going to and from 1510 Clay Street, I have probable cause to believe and do believe that are contained at this residence of Ludie Bell Johnson, 1510 Clay Street, Brighton, Alabama illegal drugs, to-wit: Heroin, Amphetamines and Barbiturates. I make this affidavit for the purpose of securing search warrant for Ludie Bell Johnson and the premises at 1510 Clay Street, Brighton, Alabama.
“Subscribed and sworn to before me this 28th day of October, 1977
/s/ Dan W. Hill AFFIANT
/s/ David H. Hood. Jr.
“JUDGE, RECORDERS COURT CITY OF BRIGHTON, ALABAMA”

We hold the affidavit does not meet one prong of the “two pronged test” of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

In Ex parte State of Alabama ex rel. Attorney General, In re Louis E. Neugent, alias v. State of Alabama, 340 So.2d 52, the Supreme Court held that an affidavit reciting, “ ‘ “I have received information from a person whose record of reliability for correctness has been good,” ’ ” was sufficient to establish the informant’s credibility for purposes of issuing the search warrant. In so holding the Court reaffirmed its decision in the “Possum” Davis case (State ex rel. Attorney General), 286 Ala. 117, 237 So.2d 640.

The other “prong” of Aguilar is absent from this affidavit. As the Court said in Aguilar:

“The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ it does not even contain an ‘affirmative allegation’ that the affiant’s unidentified source ‘spoke with personal knowledge.’ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on * * * to show probable cause.’ He necessarily accepted ‘without question’ the informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion.’ ”

The testimony revealed that the officer-affiant received his information from a fellow officer who in turn received his information from an unidentified source. The officer-affiant was not given the name of this informant nor was he told this unidentified source had personal knowledge that narcotics were presently contained on the premises at 1510 Clay Street, Brighton, Alabama. There was absolutely no evidence before the Magistrate that anyone had personal knowledge that narcotics were where the officer-affiant swore they were to be found.

We conclude that the search warrant should not have been issued because the affiant did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in appellant’s trial.

The judgment of the lower court is reversed and the case remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Dona Harvey SLY v. STATE.
    7 Div. 651.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

This prosecution originated in the District Court wherefrom, on a judgment of guilt, defendant appealed to the Circuit Court where a jury again convicted him. The trial Judge (not the jury) imposed a fine of $100.00. No jail sentence was imposed as authorized.

Defendant was charged in the Circuit Court with willfully failing or refusing to comply with a lawful order or direction of an officer invested by law with authority to direct or regulate traffic. Section 32-5-15, Code of Alabama 1975. Punishment for such violation is a fine of not more than $100.00 for a first offense. Section 32-5— 311, Code of Alabama 1975.

The trial court imposed the fine contrary to the provisions of Section 15-18-40, Code of Alabama 1975, which reads:

“In prosecution by indictment, the jury shall fix and determine the amount of the fine, and no judge shall remit or reduce the fine so fixed unless he spreads his reasons for so doing in full on the minutes of the court.”

This section applies to an indictable offense as here charged, Section 15-8-2, Code of Alabama 1975. In Melton v. State, 45 Ala. 56, Justice Saffold, speaking for the Supreme Court, observed:

“. . . Although this case came into the circuit court by appeal, and was tried on a complaint, yet it is an indictable offense, and in that court must be deemed a prosecution by indictment.”

The Supreme Court refers to Section 3757 of Revised Code, 1867, which is now Section 15-18-40, Code of Alabama 1975, supra. See also Loggins v. State, 52 Ala.App. 204, 290 So.2d 665(2).

The defendant was denied the right to have the jury fix the amount of the fine. The trial court instructed the jury that the court and not the jury had the right “to impose a fine or whatever is provided by statute”. The trial Judge was not authorized to assess the fine.

We pretermit considering other contentions of error.

The judgment is reversed and the cause is remanded for retrial or other disposition that is authorized by law.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    In re CERTIFICATE OF JUDICIAL MANPOWER FOR CIRCUIT AND COUNTY COURTS, AS REQUIRED BY SECTION 9, ARTICLE V, FLORIDA CONSTITUTION.
    No. 56422.
    Supreme Court of Florida.
    March 22, 1979.
   PER CURIAM.

For the reasons set forth below, this Court has determined pursuant to article V, section 9 of the Florida Constitution, that the following seventeen new judicial positions are needed, effective July 1, 1979, for the continued, effective operation of the trial courts of this state.

Circuit County Court Judges Circuit Court Judges
Fifth Circuit 1
Sixth Circuit 1 (Pinellas) 1
Eighth Circuit Ninth Circuit 2 (Orange) 1
Eleventh Circuit 2 (Dade) 1
Fifteenth Circuit 2
Seventeenth Circuit 2 (Broward) 2
Eighteenth Circuit 1
Nineteenth Circuit _1_
Totals 10

The Court also has determined from the requests received for new judgeships that at least the following new judicial positions, which are not now certified, may well be required not later than July 1, 1980, if current growth patterns in population and caseload continue:

Circuit Circuit Court Judges
Ninth Circuit 1
Tenth Circuit 1
Seventeenth Circuit 2
Nineteenth Circuit 1

The process by which the Court determined the number of new trial judgeships to certify at this time began in late 1978 with the distribution of current caseload and population statistics to the chief judge in each of the state’s twenty judicial circuits. Based on that data, and on the perceived needs within each circuit to meet the constitutional directive that all persons in Florida shall have access to the courts without delay, the chief judges of ten judicial circuits submitted to the Court their recommendations for new judicial positions.

Early this year, the chief justice and state courts administrator traveled to nine of the ten judicial circuits to evaluate the judgeship requests firsthand. In the interim, the office of the state courts administrator monitored current caseload data from the circuits for comparison with earlier caseload projections, and all statistical data was refined for more precise qualitative comparisons by analyzing the procedures and personnel policies within the circuits requesting judgeships.

Following the chief justice’s visits and the state courts administrator’s analyses, the Court considered the requests of the ten circuits and the views of the chief justice on their needs. The Court’s recommendation for the creation of seventeen new judge-ships certifies to the legislature ten less judicial positions than were requested from the ten judicial circuits.

The requests for five judgeships not being now certified were in large part based on projected population and caseload data, and on the reasonable belief of the requesting circuits that judicial manpower should be available to meet the demand for services when it arises. The Court is not insensitive to that objective, and it is of course aware that the state’s budget is now prepared on a biennial rather than annual basis. Nonetheless, the constitution appears to mandate an annual certification of new judgeships, so that new positions can be certified next year and created in the 1980 regular session of the legislature for implementation as of July 1, 1980. Consequently, the Court has withheld certification of these five positions based on the absence of an immediate need, but by this opinion deems it appropriate to notify the legislature that, it appears from available data, at least five new positions will be required next year. It is appropriate to note here, moreover, that none of the state’s judicial circuits were told to project judgeship needs for 1980 or thereafter, so that, notwithstanding our reference to these five positions, nothing in this certification should be considered as a final evaluation by the circuits or this Court of the need for new judges beyond the commencement of fiscal year 1979-80.

The dominant factors considered by the Court in certifying the need for an additional circuit judge in the Fifth Judicial Circuit (Marion, Lake, Citrus, Sumter and Hernando Counties) are (i) the wide geographic dispersion of the area served (4,160 square miles), (ii) the constitutional limitations on the assignment of additional duties caused by the presence of four non-lawyer county court judges, (iii) the lack of available, assignable retired circuit court judges, and (iv) the highest current caseload per judge in the state.

The dominant factors considered by the Court in certifying the need for an additional circuit judge and an additional county judge in the Sixth Judicial Circuit (Pasco and Pinellas Counties) are (i) the continuing population increase in Pasco County, (ii) the opening of new, branch courthouses throughout the circuit, and (iii) the need for additional judges to handle burgeoning juvenile caseloads.

The dominant factors considered by the Court in certifying the need for an additional circuit judge in the Eighth Judicial Circuit (Alachua, Union, Bradford, Baker, Levy, and Gilchrist Counties) are (i) the presence of numerous correctional and mental health facilities within the circuit and an attendant demand for judicial manpower to service the matters generated within those institutions, (ii) an inability to use further assignable county court personnel to perform circuit court duties without exacerbating problems in the administration of the county courts, (iii) travel requirements within the circuit, and (iv) a very high current caseload per judge within the circuit, in part caused by the lack of any new judgeships since article V was adopted.

The dominant factor considered by the Court in certifying the need for two additional county court judges in the Ninth Judicial Circuit, for Orange County, is the inability to service existing county court caseloads with existing circuit personnel, based on a variety of local factors such as an increased level of prosecution for municipal offenses and for turnpike violations, and the presence of a large naval training center in the circuit.

The dominant factors considered by the Court in certifying the need for an additional circuit judge and two additional county court judges in the Eleventh Judicial Circuit (Dade County) are (i) rapidly expanding caseloads and growing backlogs in the juvenile and family court divisions, (ii) the judicial needs generated by the presence of ten regional courthouses, and (iii) the caseload pressure on all counts in the circuit which has been created by the increasing number of attorneys resident within the circuit.

The dominant factors considered by the Court in certifying the need for two additional circuit judges in the Fifteenth Judicial Circuit (Palm Beach County) are (i) ever-growing juvenile and criminal caseloads, (ii) the phenomenon of complex and time-consuming condominium litigation being added to the circuit’s current classes of litigation, and (iii) the presence (along with the Fifth Judicial Circuit) of the highest current caseload per judge.

The dominant factors considered by the Court in certifying the need for two additional circuit judges and two additional county court judges in the Seventeenth Judicial Circuit (Broward County) are (i) ever-increasing population and caseloads, (ii) special demands placed on courts within the circuit by the elderly and the influx of 500,000 tourists each year, (iii) the presence of twenty-nine municipalities, (iv) significant current delays in obtaining hearings and jury trial, and (v) a greatly expanded attorney population within the circuit in recent years.

The dominant factors considered by the Court in certifying the need for an additional circuit judge in the Eighteenth Judicial Circuit (Seminole and Brevard Counties) are (i) the extensive travel times required to service the wide geographical area covered by the circuit, (ii) the explosion of population and caseloads in lower Seminole County, and (iii) the increased judicial activity generated by law enforcement activities in Brevard County. As regards future travel required in this circuit, and the growth patterns being exhibited, the chief justice has asked the chief judges of the Eighteenth and Ninth Judicial Circuits to consider and report to the Court on the advisability of re-aligning the counties within their circuits to combine Orange and Seminole Counties into one circuit, and Osceola and Brevard into the other.

The dominant factors considered by the Court in certifying the need for an additional circuit judge in the Nineteenth Judicial Circuit (St. Lucie, Martin, Okeechobee, and Indian River Counties) are (i) travel times required to service the jurisdiction of the circuit, and (ii) an expansion in population, caseload, and complex litigation resulting from the permanent growth which has taken place in lower Martin County.

In addition to these identified peculiar circumstances within these circuits, each judgeship request is statistically justified in that the ability of judicial officers in these circuits to perform thoroughly, expeditiously, and fairly their total judicial duties is to some degree presently impaired by the volume of matters now commanding their attention.

CERTIFICATION

Therefore, in accordance with article V, section 9, Constitution of Florida, we certify the need for the additional circuit and county court judgeships indicated above, for a total of seventeen new judicial positions for the trial courts of the state. This Court certifies that these judicial officers are necessary, and we recommend that they be made permanent by law and funded by the state.

The Court has not, it should be noted, by this certification, recommended additional judicial positions for the district courts of appeal. The creation of new appellate judgeships has been recommended by the Commission on Florida’s Appellate Court Structure, and that recommendation is presently under consideration by the Court. Any recommendation by the Court for new appellate court judgeships will be made in a separate certification order before the legislature convenes on April 3, 1979.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    In re CERTIFICATION UNDER ARTICLE V, SECTION 9, FLORIDA CONSTITUTION, TO REDEFINE APPELLATE DISTRICTS AND TO INCREASE the NUMBER OF JUDGES ON the DISTRICT COURTS OF APPEAL.
    No. 56422-A.
    Supreme Court of Florida.
    April 2, 1979.
   PER CURIAM.

For the reasons set forth in detail below, the Court has determined pursuant to article V, section 9 of the Florida Constitution, that a fifth judicial district should be created in Florida by redefining the boundaries of the existing districts, and that the following ten new judicial positions are needed for the continued, effective operation of the district courts of appeal of this state, all effective July 1, 1979.

Districts Judges
Second District 3 (Comprising the 6th, 12th, 13th and 20th judicial circuits)
Third District 2 (Comprising the 11th and 16th judicial circuits)
Fourth District 2 (Comprising the 15th, 17th, and 19th judicial circuits)
Fifth District 3 (Comprising the 5th, 7th, 9th, 10th, and 18th judicial circuits)

In July 1978, the chief justice appointed a Commission on the Florida Appellate Court Structure composed of judges, lawyers, laymen, and legislators to determine the needs of the appellate courts of the state in light of current and prospective litigation patterns. Last month, the commission filed its final report with the Court, and copies have been distributed to each member of the legislature in conjunction with this certification. By this certification, the Court has formalized its approval of the commission’s recommendations for a realignment of the state’s appellate districts and for the creation of additional district court judgeships.

(1) Additional judges.

The Court concurs fully with the commission’s conclusion that existing caseload levels in the district courts of appeal are unmanageable. Appellate judges cannot, by any standard, adequately bear the initial responsibility for review of more than 250 cases per judge, annually. The addition of jurisdiction to hear workmen’s compensation appeals, also recommended by both the commission and the Court, will aggravate a situation which now, despite administrative innovations to expedite decisions, nonetheless causes intolerable delays and backlogs in the district courts of appeal.

The Court has pared the commission’s recommendation for three additional judge-ships in the Third District Court of Appeal to two new positions. That court generally has available the regular services of one retired judge, and the members of that court have in any event indicated a concern for the administrative difficulties of enlarging the court to ten.

The Court’s request that ten positions be added to the district courts is integrated with recommendations elsewhere proposed, in particular the Court’s recommendation for abolition of the five-person Industrial Relations Commission which now hears appeals from workmen’s compensation proceedings. These combined proposals have the practical and fiscal effect of adding only five additional judicial positions to the state’s appellate structure.

The creation of the new judgeships we have certified will result in five district courts of appeal composed of the following judicial personnel:

First District — 7 judges (all presently sitting)
Second District — 8 judges (5 of 7 presently sitting and 3 to be added)
Third District — 9 judges (7 presently sitting and 2 to be added)
Fourth District — 8 judges (6 of 7 presently sitting and 2 to be added)
Fifth District — 6 judges (1 presently sitting in Fourth District, 2 presently sitting in Second District, and 3 to be added)

(2) District realignment.

Full justification for the commission’s recommendation concerning a new judicial district is contained in the commission’s report, and the Court adopts by reference that justification as the basis for this certification. Contrary to the commission’s recommendation, however, the Court recommends that the district which will encompass the lower gulf coast of Florida be denominated the Second District, and that the designation “Fifth District” be assigned to that district, stretching across the center of the state, which will be carved in part from the First, the present Second, and the Fourth districts. (Appended to this certification is a map showing the geographical areas to be encompassed within the recommended, realigned districts).

Principal among the reasons for the Court’s departing from the designations assigned by the commission are (i) the fact that five of the seven judges of the present Second District Court of Appeal reside in the lower gulf coast district and will thus remain as members of the court which bears the same name, (ii) the historic pattern of designating as the higher-numbered districts and circuits those geographic areas which are created from within larger geographic areas, and (iii) the ease of identifying the newly aligned districts by “reading” the state chronologically from its northwest corner down the west coast and then up the east coast.

The Court takes no position as to the location of a headquarters for either the realigned Second District or the Fifth District. The physical facility in Lakeland obviously commends itself as a headquarters for the Fifth District, but we consider the selection of a district headquarters to be a matter best suited for legislative determination.

CERTIFICATION

Therefore, in accordance with article V, section 9 of the Florida Constitution, we certify the need for ten additional district court of appeal judgeships, bringing to thirty-eight the total number of judges on the state’s district courts of appeal, and we recommend that the state’s judicial districts be realigned as follows:

First District: to contain all of the first, second, third, fourth, eighth, and fourteenth judicial circuits.
Second District: to contain all of the sixth, twelfth, thirteenth, and twentieth judicial circuits.
Third District: to contain all of the eleventh and sixteenth judicial circuits.
Fourth District: to contain all of the fifteenth, seventeenth, and nineteenth judicial circuits.
Fifth District: to contain all of the fifth, seventh, ninth, tenth, and eighteenth judicial circuits.

To implement these proposals, the Court certifies to the legislature the need to amend chapter 35, Florida Statutes (1977), to create a new district court of appeal by removing Marion County and the seventh circuit from the First District Court of Appeal, removing the ninth and eighteenth circuits from the Fourth District Court of Appeal, and placing those circuits in a new district. The newly created district should be designated the Fifth District; the remainder of the existing Second District should continue to be designated the Second District. As to judges currently residing in the realigned districts, no vacancies in office shall be deemed to occur by reason of the realignment of districts. Consequently, the five Second District judges residing in Hillsborough County shall remain judges of the Second District (which will encompass Hillsborough County); the two Second District judges residing in Polk County shall be judges of the new Fifth District (which will encompass Polk County); and the one Fourth District judge residing in Orange County shall be a judge of the new Fifth District (which will encompass Orange County).

We further certify that these judicial officers and the accompanying realignment of the state’s judicial districts are necessary, and we recommend that the appropriate laws be enacted and funds provided so that these adjustments can be made effective July 1, 1979.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

Appendix to follow.


author: SUNDBERG, Justice.

text:
    Irving W. LANDERS et ux. et al., Petitioners, v. Adelle L. MILTON, Respondent.
    No. 53030.
    Supreme Court of Florida.
    April 19, 1979.

      Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for petitioners.
    Malcolm Anderson, Law Offices of Malcolm Anderson, North Palm Beach, for respondent.
   SUNDBERG, Justice.

By petition for writ of certiorari, we are asked to review a decision of the District Court of Appeal, Fourth District, reported at 349 So.2d 722, which is alleged to be in conflict with Dibble v. Jensen, 129 So.2d 162 (Fla.3d DCA 1961), that case holding that the filing of a complaint in a civil action tolls the statute of limitations without regard to the amenability of the defendant to service of process. The issue presented is whether the district court erred in reversing the circuit court’s grant of summary judgment against respondent. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

On October 3, 1970, respondent Adelle L. Milton sustained injuries in an automobile accident in Lake Worth, Florida. On October 1, 1975, she filed a complaint against petitioners for damages arising from the accident. Petitioners filed an answer which included an affirmative defense of the statute of limitations, followed by a motion for summary judgment without supporting affidavits. Respondent and her husband filed opposing affidavits which alleged that after repeated unsuccessful attempts to contact petitioner Landers in 1970 and 1971, they had “assumed” that he was absent from Florida during this period. They also alleged that they had learned that Mr. Lan-ders resided in Florida only during the winter months. The trial judge granted summary judgment for petitioners.

The District Court of Appeal, Fourth District, reversed the summary judgment, holding that a genuine issue of material fact existed concerning Mr. Landers’ residency from the date of the accident to the filing of the complaint. Mr. Landers’ residency was material, the court reasoned, since if at the time of the accident he was a nonresident, or if he became a nonresident after the accident or concealed his whereabouts, he would have been amenable to substituted service of process under section 48.171, Florida Statutes (1969), and the statutory period for filing a complaint may have expired. On the other hand, if Lan-ders was a resident of Florida from the date of the accident to the filing of the complaint, and if he did conceal his whereabouts, his absences from the state would have tolled the statute and the limitations period may not have expired. § 95.07, Fla. Stat. (1969). The court concluded that “[s]ince Landers’ residential status was in doubt, [petitioners], as the movants for summary judgment, failed to adequately demonstrate the nonexistence of all genuine issues of material fact.” Milton v. Landers, 349 So.2d 722, 723 (Fla.4th DCA 1977).

Petitioners contend that the district court incorrectly shifted to them the burden of proving the inapplicability of the tolling provisions of section 95.051, Florida Statutes (1977). They argue that once it appears on the face of the pleadings that the statute of limitations has expired, respondent must show that the statute was tolled in order to withstand a motion for summary judgment. For the following reasons, we agree with this contention.

A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965); Farrey v. Bettendorf, 96 So.2d 889 (Fla.1957); see Fla.R.Civ.P. 1.510. Concomitantly, the party seeking to escape the statute of limitations must bear the burden of proving circumstances that would toll the statute. Armstrong v. Wilcox, 57 Fla. 30, 49 So. 41 (1909); A & G Aircraft Service, Inc. v. Johnson, 192 So.2d 74 (Fla.4th DCA 1966); accord, Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir. 1971).

In this case petitioners, as movants for summary judgment, sustained their initial burden by demonstrating on the face of the pleadings that the cause of action was time barred. It then became incumbent upon respondent to come forward with competent evidence revealing a genuine issue of fact. This respondent failed to do. Mr. and Mrs. Milton’s affidavits, based largely on supposition, were clearly inadequate to create an issue of fact. Had the affiants specifically alleged, based on personal knowledge, that Mr. Landers was a resident of Florida and had been absent from the state for certain periods from the date of the accident to the filing of the complaint, the district court would have been correct in finding that a material fact existed.

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Fourth District, is quashed, and the case is remanded to the district court with directions to remand to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and OVERTON, JJ., concur.

      . 48.171 Service on nonresident motor vehicle owners, etc. Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having it operated, or of permitting any motor vehicle owned, or leased, or controlled by him to be operated with his knowledge, permission, acquiescence or consent, within the state, or any resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control any motor vehicle under the laws of this state, who becomes a nonresident or conceals his whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his servants, agents, or employees, or by persons with his knowledge, acquiescence and consent within the state constitutes the secretary of state his agent for the service of process in any civil action begun in the courts of the state against such operator or owner, lessee or other person entitled to control of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.

      .95.07 Limitation, absence of defendant from state. If, when the cause of action shall accrue against a person, he is out of the state, the action may be commenced within the term herein limited after his return to the state; and if after the cause of action shall have accrued he depart from the state, the time of his absence shall not be part of the time limited for the commencement of the action.
      Now codified as section 95.051(l)(a), Florida Statutes (1977):
      95.051 When limitations tolled.
      (1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.-36 is tolled by:
      (a) Absence from the state of the person to be sued.

      . Fla.R.Civ.P. 1.510(e):
      Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories or by further affidavits.
      See Waldo v. United States Ramie Corp., 74 So.2d 106 (Fla. 1954); Freeman v. Equilease Corp., 346 So.2d 619 (Fla.3d DCA 1977); Stewart v. Gore, 314 So.2d 10 (Fla.2d DCA 1975.)

      . Holding as we do that the district court erred in shifting to petitioners the burden of proof based on incompetent affidavits, we do not reach the issue framed by the purported conflict with Dibble v. Jensen.


author: PER CURIAM. OVERTON, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Thomas A. LARKIN, Respondent.
    No. 55063.
    Supreme Court of Florida.
    April 19, 1979.
    John A. Weiss, Asst. Staff Counsel, Tallahassee, and Dana G. Bradford, II, Bar Counsel, Jacksonville, for complainant.
    John F. Kattman, Jacksonville, for respondent.
   PER CURIAM.

This disciplinary proceeding against attorney Thomas A. Larkin is before the Court on complaint of The Florida Bar and report of a bar referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record of the proceedings were duly filed with this Court. A petition for review pursuant to article XI, Rule 11.09(1) has been filed by the respondent.

Disciplinary proceedings were instituted upon complaint by The Florida Bar charging the respondent with neglect of legal matters entrusted to him by two clients. On August 10, 1978, a final hearing was held before the referee, who after considering the pleadings, exhibits and evidence, found as follows:

1. In October, 1975, Paul R. Looney and Kenneth F. McKenzie contacted the respondent about the possibility of their organizing an employees’ union at the chain of department stores by which they were employed. After consulting with the respondent, Messrs. Looney and McKenzie called a meeting of their fellow employees to discuss forming the union. Shortly after this meeting was held, Looney and McKenzie were discharged from their employment.

2. Looney and McKenzie met with the respondent on November 13, 1975. They each paid to him $150.00 as an initial retainer to secure his employment as their attorney. His services were to include the filing of complaints with the National Labor Relations Board alleging unfair labor practices by the employer.

3. The respondent failed to take the necessary action within the applicable statutory time limitations. Subsequent attempts by Looney and McKenzie to have their complaints considered by the National Labor Relations Board were unsuccessful.

4. As a result of the respondent’s failure to provide the legal services contracted for, his clients, being unable to obtain employment, were out of work for over a year.

The referee has recommended that the respondent be found guilty of violating his oath as an attorney, the Florida Bar Integration Rule, and Disciplinary Rules 6-101(A)(3), 7-101(A)(2) and (3) of the Code of Professional Responsibility.

With regard to discipline, the referee has recommended that respondent receive a public reprimand, that he be suspended from the practice of law for three months with automatic reinstatement, and that he be placed on probation for an additional period of nine months.

The respondent has admitted guilt as to the charges brought against him, but has petitioned the Court to review the severity of the recommended discipline in light of his personal history and disciplinary record.

This Court’s judgment must be just and fair both to the public and to the accused attorney; it must be sufficient to punish a breach of ethics and at the same time encourage reformation; finally, it must be severe enough to deter others who might tend to engage in similar violations. See, e. g., The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970); State ex rel. Florida Bar v. Bass, 106 So.2d 77 (Fla.1958).

In The Florida Bar v. Moran, 273 So.2d 379 (Fla.1973), a factually similar case, the accused attorney had failed to prosecute his clients’ cases. This Court held that such conduct justified a public reprimand and probation, even though there were mitigating circumstances. In The Florida Bar v. Leopold, 320 So.2d 819 (Fla.1975), the Court determined that the failure to diligently prosecute a client’s workmen’s compensation claim within the prescribed statutory period warranted a public reprimand.

After careful examination of the record and the report of the referee, this Court approves and adopts the referee’s findings of fact and the recommendation that the respondent be found guilty. The Court adopts in part the recommendation as to discipline.

It is adjudged that this opinion shall constitute a public reprimand of attorney Thomas A. Larkin; further, that, pursuant to article XI, Rule 11.10(1) of The Florida Bar Integration Rule, respondent is placed on probation for a period of one year. As a condition of his probation the respondent shall file a quarterly report with the Clerk of the Florida Supreme Court, and a copy with staff counsel of The Florida Bar. These reports should outline the current status of cases which the respondent has agreed to undertake on behalf of clients, and include information as to cases disposed of during the quarter. These reports will of course be kept confidential. The respondent's probation shall commence with the filing of this opinion. Costs incurred by The Florida Bar in these proceedings, in the amount of $408.00, are hereby taxed against the respondent.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and SUNDBERG, JJ., concur.

OVERTON, J., dissents with an opinion, with which HATCHETT and ALDERMAN, JJ., concur.

OVERTON, Justice,

dissenting.

I would affirm all of the recommendations of the referee.

      . Fla.Bar Integr.Rule, art. XI, Rule 11.-06(9)(a)(l).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.-06(9)(a)(2).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.-06(9)(a)(3).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.10(3).

      .Fla.Bar Integr.Rule, art. XI, Rule 11.10(1)(2).


author: CROSS, Judge.

text:
    Clemens B. HOPPE, Individually and as Trustee, Appellant, v. Margot HOPPE, as parent, mother and natural guardian of Robert Hoppe and Theodore Hoppe, Appellee.
    No. 76-1825.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.

      Arthur E. Barrow, of Caldwell Pacetti, Barrow & Salisbury, Palm Beach, for appellant.
    Shepard P. Lesser, of Lesser, Lesser & Daniels, West Palm Beach, for appellee.
   CROSS, Judge.

Clemens B. Hoppe, individually and as Trustee, seeks through interlocutory appeal review of an order denying a motion to dismiss a second amended complaint and motion to strike prayer for punitive damages in an action to enforce provisions of a trust and for an accounting. We affirm in part, and reverse in part.

In 1958 Kenneth Hoppe executed as grantor a Trust Agreement wherein Clemens B. Hoppe, his father, was appointed as Trustee. Under the provisions of this trust, certain property was to be held for the beneficial use of the settlor’s then existing children, as well as for any children thereafter born to him. Subsequently, Kenneth Hoppe married Margot Hoppe, and together they had two children, Robert and Theodore. This marriage terminated in divorce.

Margot Hoppe, as parent, mother and natural guardian of Robert Hoppe and Theodore Hoppe, instituted suit against Clemens B. Hoppe, individually and as Trustee, alleging in a second amended complaint that Clemens B. Hoppe had improperly discharged his obligations under the trust toward Robert and Theodore as beneficiaries. Count one alleged generally abuse of discretion by appellant in the exercise of his obligations under the trust. It also requested an award of attorney’s fees. Count two alleged careless and negligent handling of the trust proceeds, which injured the intended beneficiaries, Robert and Theodore, through diminution of the trust res. Count two contained a prayer for damages in excess of the jurisdictional amount. Count three sought to allege willful, deliberate and malicious conduct on the part of the appellant in the disbursement of the trust res and in the appointment of Kenneth Hoppe as successor trustee. This count sought imposition of punitive damages in excess of $2500.

Appellant filed a motion to dismiss the second amended complaint. As grounds therefor it was argued that Clemens B. Hoppe could not properly be held individually liable; that appellee had misconstrued the stated purpose of the trust; that the trustée had “absolute and uncontrolled discretion” with regard to disbursement of the trust funds and therefore could not have been guilty of abuse of discretion in their distribution, and that attorney’s fees were not properly awardable. Appellant also filed a motion to strike the prayer for punitive damages. The trial court granted appellant’s motion with respect to the prayer for attorney’s fees, but denied appellant’s motion in all other respects. Clemens B. Hoppe then filed the instant interlocutory appeal, seeking review of the propriety of that order.

The questions presented for our determination are whether the chancellor erred in denying the motion to dismiss and motion to strike.

Even though a grant of “absolute and uncontrolled discretion” to a trustee is very broad, such a grant does not relieve a trustee from the exercise of good faith in the administration of his obligations under the trust agreement. Mesler v. Holly, 318 So.2d 530 (Fla.2d DCA 1975). The manner in which a trustee performs his obligations is always subject to review by the court in appropriate instances. 76 Am.Jur.2d, Trusts § 182 (1975). Moreover, a trustee may be held personally liable if he fails to exercise the care and skill of a prudent man in the protection of the trust. Spencer v. Mero, 52 So.2d 679 (Fla.1951).

In the instant case, the complaint alleges sufficient facts, which if proved, would justify holding the appellant liable, both individually and as trustee, for the recovery sought. Therefore, no error of the trial court occurred in denying the motion to dismiss the second amended complaint.

Turning now to the issue of whether appellant could be held liable for punitive damages, the law is clear in Florida that absent a statutory authority, a judge sitting as a trier of fact in an action formally cognizable in equity may not award punitive damages. Santos v. Bogh, 298 So.2d 460 (Fla.3d DCA 1974); Lee v. Watsco, Inc., 263 So.2d 241 (Fla.3d DCA 1972); R.C. #17 Corp. v. Korenblit, 207 So.2d 296 (Fla.3d DCA 1968). In the case sub judice, the complaint fails to set forth sufficient factual allegations to sustain a prayer for punitive damages. Appellee seems to rely on appellant’s conduct in appointing Kenneth Hoppe, appellee’s former husband, as successor trustee in order to sustain the prayer for punitive damages. Yet the complaint fails to allege facts sufficient to demonstrate any malicious intent to harm the trust or its intended beneficiaries from such appointment, other than to set forth naked conclusions of law. Nor does the mere allegation that the appellant wil-fully, deliberately and maliciously made improper disbursements of the trust res support the prayer for punitive damages. Thus, the prayer for punitive damages cannot be sustained.

Accordingly, that portion of the trial court’s order denying appellant’s motion to dismiss the second amended complaint is affirmed; that portion of the order denying appellant’s motion to strike the prayer for punitive damages is reversed, and the cause remanded for further proceedings consistent with the views herein expressed.

Affirmed in part and reversed in part.

MOORE and BERANEK, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Clemens B. HOPPE, Individually and as Trustee, Appellant, v. Margot HOPPE, as parent, mother and natural guardian of Robert Hoppe and Theodore Hoppe, Appellee.
    Nos. 76-1825, 77-2023.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied May 23, 1979.
    Arthur E. Barrow of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for appellant.
    Shepard Lesser of Lesser, Lesser & Daniels, West Palm Beach, for appellee.
   PER CURIAM.

This is a consolidated appeal involving an interlocutory appeal in Case No. 76-1825, and a plenary appeal in Case No. 77-2023. Appellant/defendant seeks reversal of a final judgment entered in favor of plaintiff for both compensatory and punitive damages. We find appellant has failed to demonstrate reversible error regarding compensatory damages and therefore affirm the judgment in this respect.

The judgment awarding punitive damages is hereby reversed based upon our decision in the interlocutory appeal taken in this same case on which a petition for rehearing has now been denied.

The matter is remanded for further proceedings consistent herewith.

CROSS, MOORE and BERANEK, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

This Court issued its opinion on March 28, 1979, wherein an award of compensatory damages was affirmed. Appellant has filed a motion for clarification. The trial court assessed the sum of $42,900.16 against Clemens B. Hoppe, as Trustee and individually. The assessment of liability in the individual capacity was designated as a surcharge. Under the particular facts and circumstances of this case, this was in the nature of an award of compensatory damages. Our pri- or opinion in Case No. 76-1825 of October 4, 1978, 370 So.2d 374, was to the effect that the Trustee could be held individually liable under the circumstances alleged in the complaint. Therefore, we find that the individual liability of the Trustee in the amount of $42,900.16 was in the nature of a compensatory damage award and the same is hereby affirmed.

CROSS, MOORE and BERANEK, JJ., concur.


author: DAUKSCH, Judge.

text:
    ANDEAN INVESTMENT COMPANY, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. 76-1497.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    As Modified on Rehearing April 18, 1979.
    William E. Quisenberry, Jr., of DiGiulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for petitioner.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for respondent.
   DAUKSCH, Judge.

Petitioner seeks our Writ of Certiorari to the Department of Revenue (DOR) to review a ruling of the DOR which approved a hearing officer’s recommended order assessing liability against petitioner for certain documentary stamp taxes, surtax and penalties all related to real property transfers.

Petitioner is a general partnership the members of which are various individuals who owned and operated warehouses. In order to provide more convenient and economical management of their various separate holdings it was agreed they would each transfer their properties to the partnership and this single entity would handle the management. The only assets of the partnership are these properties.

When the deeds to the properties were recorded minimal documentary stamp taxes and surtaxes were paid because, petitioner contends, these were transfers made without consideration. When the properties were transferred to the partnership they were taken subject to various mortgages encumbering each of them. No money or other consideration actually passed from the partnership to the transferor partners.

For us to decide, first, is whether the conveyance of real estate without consideration other than the taking subject to a mortgage is a sufficient transfer for consideration to require the payment of documentary stamp tax and surtax under Sections 201.02 and 201.021, Florida Statutes (1975):

Section 201.02: (l)On deeds, instruments, or writings whereby any lands, tenements, or other realty, or any interest therein, shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser, or any other person by his direction, on each $100 of the consideration therefor the tax shall be 30 cents. When the full amount of the consideration for the execution, assignment, transfer, or conveyance is not shown in the face of such deed, instrument, document, or writing, the tax shall be at the rate of 30 cents for each $100 or fractional part thereof of the consideration therefor.
Section 201.021: (1) A documentary surtax, in addition to the tax levied in s. 201.02, is levied on those documents taxed by s. 201.02 at the rate of 55 cents per $500 of the consideration paid; provided, that when real estate is sold, the consideration, for purposes of this tax, shall not include amounts of existing mortgages on the real estate sold. If the full amount of the consideration is not shown on the face of the document, then the tax shall be at the rate of 55 cents on each $500 or fractional part thereof of the consideration.
(2) The Department of Revenue shall pay all taxes collected under this section to the Treasurer for deposit in the Land Acquisition Trust Fund. Sums deposited there may be used for any purpose for which funds deposited in the Land Acquisition Trust Fund may lawfully be used and may be used to pay the cost of the collection and enforcement of the tax levied by this section.

This is answered in Florida Department of Revenue v. DeMaria, 338 So.2d 838 (Fla. 1976) which held in the affirmative. In that case, which recalls the case of Kendall House Apartments, Inc. v. Department of Revenue, 245 So.2d 221 (Fla.1971), it was held that a shifting of the economic burden is sufficient consideration in the transfer of real property to warrant payment of the taxes. See also our own Abramson v. Straughn, 348 So.2d 1172 (Fla. 4th DCA 1977) which followed those two cases but found no shifting of economic burden.

It is argued by petitioner that because each partner took a share in the general partnership in an exact proportion to the equity in the property which he transferred to the partnership and since each partner’s liability is limited to his former liability under his own mortgage there was no shifting of the economic burden. This argument overlooks the fact that the partnership entity acquired the assets subject to mortgages it must pay. If the partnership fails to pay the mortgage it will lose the asset by foreclosure. All of the assets were taken subject to mortgages, no matter the individual former owners agreed to pay their proportionate share. If a partner breaches his agreement, the partnership pays or the asset is lost. A shifting of the burden occurred upon the transfer just as described in Florida Department of Revenue v. DeMaria, supra. As to this point we see no departure from the essential requirements of law.

Petitioner next contends DOR miscalculated the amount of the tax liability. We agree with that contention. In figuring the tax liability DOR used the regulation from the Florida Administrative Code 12 A-^.lSilOXc). While this is a proper method for determining the amount of tax owed, the tax collector should reduce the consideration figure, in this case, by the proportionate share of the individual grantor’s liability as a partner in the entire partnership burden of indebtedness. All transactions should be taxed the same; to apply 12 A-4.13(10)(c) strictly in each case would not recognize cases, such as this, which vary from the norm in terms of the consideration received by the grantor. If we say the transaction is taxable because an economic burden is shifted then we must accurately assess that burden shifting by adjusting the consideration figure. If one partner’s transfer reduces his actual liability then the consideration for his transfer is proportionately increased. When another partner’s actual liability is increased as a result of the transfer the consideration for that transfer is proportionately reduced.

As a third point on appeal petitioner asserts respondent abused its discretion in assessing a penalty for non-payment and further abused its discretion in setting the amount of the penalty. As was held in State of Florida, Department of Revenue v. Zuckerman-Vernon Corporation, 354 So.2d 353 (Fla.1977) the DOR has no discretion in the matter. The fixing of the penalty and the amount is mandatory. This case, like State of Florida, Department of Revenue v. Zuckerman-Vernon Corporation, supra, is controlled by Section 201.17(2), Florida Statutes (1975) as it read before it was amended by Ch. 77-281, Laws of Florida, so the penalty cannot be reduced to twenty-five percent.

Certiorari is granted and the order assessing the tax and penalty is quashed and this cause remanded to the Department of Revenue for proper assessment of the tax and penalty in accordance with this opinion.

It is so ordered.

MOORE and BERANEK, JJ., concur.

      . This is now 12 B-4.13(10)(c) and is just the same as before, including the errors in the example (.30% and 1000,000):
      (c) When the owner of property forms a general partnership with other parties and he conveys the property to the partnership subject to a mortgage for which the partnership assumes the burden of making the mortgage payments, the conveyance to the partnership is taxable under Chapter 201, F.S. The tax should be computed upon the unpaid balance of the mortgage debt at the time of the conveyance, plus any other consideration, including the value of the interest in the partnership received by the grantor, less the portion of the unpaid balance represented by the percentage of interest which the grantor acquires in the partnership.
      EXAMPLE: “A” transfers real property to a partnership which has a net worth of $100,-000 for a thirty percent interest in the partnership. The property transferred by “A” to the partnership has a mortgage executed by “A” with an unpaid balance of $200,000 at the time of transfer. Consideration upon which tax is computed:
      Unpaid balance of mortgage $200,000
      Value of 30% interest in partnership (.30% x $10000,000) 30.000
      Sub-total $230,000
      Less 30% of unpaid balance of mortgage (.30% x $200,000) 60,000
      Basis for computation of tax $170,000