text:
    M. D. RUSSELL v. H. K. PORTER COMPANY, INC.
    Civ. 1246.
    Court of Civil Appeals of Alabama.
    April 5, 1978.

      Thomas N. Crawford, Jr., Birmingham, for appellant.
    Larry W. Harper, of Dunn, Porterfield, Scholl & Clark, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. Claimant appeals. The issue is whether the trial court erred in its holding that though the claimant suffered an accident causing permanent partial disability while working as a ladle crane operator for defendant, there was no evidence that there was a resultant loss of ability to earn. We reverse and remand.

The following is a statement of undisputed pertinent facts: Claimant had been employed by defendant for sixteen years, the last fourteen years as a crane operator. Claimant was classified as a charging crane operator, which was known as a step 12 job. Those classified as ladle crane operators were at step 13. Claimant had top seniority in step 12 and for approximately eighteen months prior to the accident he had worked as a ladle crane operator while those operators classified at step 13 were sick or on vacation. Step 13 carried a higher hourly rate of pay then step 12. The hourly difference had varied over the last year or so from 29 cents to 15 cents. Though claimant was not classified at step 13, because of his seniority he had first opportunity to work that job when those so classified were off for some reason. When an opening occurred at some future time, he was first in line to be permanently classified in step 13. The ladle crane was in a different area of the large furnace building than the charging crane. In January 1974, while operating the ladle crane and being paid the step 13 hourly rate, claimant experienced a coughing attack and difficulty in breathing. This condition reoccurred and worsened on each occasion he attempted to operate the ladle crane thereafter.

It was the testimony of the medical experts that claimant had become allergic to some substance prevalent at the site of the ladle crane; that he could not operate that crane without the disabling allergenic reaction. However, he could operate the charging crane with no difficulty. Claimant continues to regularly operate that crane.

The trial court made the following statement and ruling in its judgment in favor of defendant:

“Under the clear rationale of the B. F. Goodrich Company versus Lawless Martin, 47 Ala.App. 244, 253 So.2d 37, I find there is no evidence that the plaintiff has sustained any loss of ability to earn due to his allergenic reaction to whatever substance he is allergic to. I do not think the test of not being able to work on a job which pays approximately 15 cents an hour more is compensable without a finding of a loss of ability to earn. I think that it is relevant that the plaintiff is able to work in the part of the plant where he has worked for so many years as opposed to having to remove himself from the part of the plant that he has worked for so many years.”

We do not understand the reference of the court to the clear rationale of B. F. Goodrich Co. v. Martin. We perceive nothing in the decision in that case to support the finding that there is no evidence in this case that the claimant has sustained a loss of ability to earn. To the contrary, it is our opinion that the evidence establishes without conflict that claimant has sustained a loss of ability to earn under the provisions of Section 25-5-57(a)(3)(g), Code of Alabama (1975). The court’s own statement that claimant was unable to continue work on a job which paid 15 cents per hour more than the job to which he returned is contrary to its conclusion. The court might have further said that claimant’s injury necessitated return to a job from which he could not progress for the remainder of his work life, even though he possessed all qualifications and rights of seniority to do so. B. F. Goodrich Co. v. Martin, 47 Ala. App. 244, 253 So.2d 37 (1971) stands squarely for the principle that if one suffers an injury on his job resulting in an unscheduled permanent partial disability and there is evidence that such disability lessens his ability to earn, he is due to be compensated in relation to the difference between what he earned prior to the injury and what he is able to earn in his partially disabled condition. The prohibition against recovery by the claimant in Goodrich was due to an incorrect finding by the trial court and an absence of evidence that he had suffered any loss of ability to earn by moving to another job subsequent to injury. We believe it clear that such evidence is not lacking in this case and the trial judge so stated in his own judgment.

Claimant had, because of his seniority, been working regularly for some eighteen months at a step 13 job and being paid accordingly. Though he had not been permanently classified at step 13, there was no dispute but that he would have continued to work that job and have been permanently so classified as soon as a vacancy occurred had the allergy not developed. Step 13 was his normal promotional progression. There is no dispute but that because of the disabling allergens present in the environment of the ladle crane to which claimant had succumbed, he would never be able to work that job again. His rights of seniority and expectation of further progression as a crane operator were nullified and he was relegated permanently to a job with less hourly pay, less incentive pay and less benefits at retirement.

Therefore, there was unconflicting evidence that claimant had suffered a permanent partial disability which resulted in lower average weekly earnings. For such disability he is due to be compensated under the law. Alabama By-Products Co. v. Landgraff, 248 Ala. 253, 27 So.2d 215 (1946).

The judgment of the court that claimant suffered no loss of ability to earn is reversed and the case is remanded for determination of the amount of compensation due claimant under Section 25-5-57(a)(3)(g).

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: BOWEN, Judge. BOWEN, Judge.

license: Public Domain

text:
    Darryl Travis WATKINS v. STATE.
    6 Div. 398.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Dec. 6, 1977.
    On Return to Remand April 4, 1978.

      Henry B. Welch of Welch & Tucker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery. Punishment was fixed at ten years imprisonment.

The evidence presented by the state revealed that on the 17th of February, 1976, two men and the appellant entered the Spring Air Cleaners in Birmingham, Alabama. Kenneth Dials pulled a pistol and demanded the money from the manager and the manager placed a cigar box containing coins on the counter. The appellant and the third man, Larry Leon Cobb, then got the money from that box. Immediately all three men ran out of the cleaners.

Within minutes the trio was spotted by the police. As a patrol car drove toward them, the three men, who had been walking, began to run and continued running after having been ordered to halt by the police. None of the forty-six dollars taken from the cleaners was found on the appellant when he was apprehended. All three men were positively identified by the manager.

Larry Leon Cobb testified that he had no knowledge of a robbery plan before the crime actually occurred. Cobb maintain that the robbery was not planned or discussed among the three men and that the appellant did not have any prior knowledge of its commission. Cobb testified that the appellant did not take any money from the manager of the cleaners and did not participate in the robbery in any way.

The appellant testified in his own behalf and denied having any knowledge of a robbery plan the day he went to the Spring Air Cleaners. He stated that during its commission he merely stood by the door of the cleaners and did not say or do anything.

I

The appellant maintains that he was not properly informed of the charge in the indictment because the indictment did not charge conspiracy. He contends that on an indictment charging robbery he could not be convicted on proof that he was a co-conspirator and aided and abetted in the commission of the offense.

The indictment charged common law robbery. A part of the state’s evidence was based on the fact that the appellant was one of three men who robbed a dry cleaners. The appellant was not charged nor was he convicted of conspiracy under Title 14, Section 14, Code of Alabama 1940, Recompiled 1958. The evidence established that the appellant aided in the commission of a robbery. All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, must be indicted, tried and punished as principals. Title 14, Section 14, Code. The contention of the appellant has been considered by the Supreme Court of this state and found to be without merit. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1951).

Additionally Title 14, Section 14, Code, authorizing conviction of the substantive crime charged on proof that the accused aided and abetted in its commission, is not violative of the provisions of Section 6 of our state constitution which provides that “in all criminal prosecutions the accused has a right to * * * demand the nature and cause of the accusation”. Stokley, supra.

Under federal law

“It is well settled that an aider and abettor is guilty and punishable as a principal. 18 U.S.C.A. Section 2. An aider and abettor may be indicted directly with commission of the substantive crime, and such a charge may be supported by proof that he only aided and abetted in its commission. Nassif v. United States, 370 F.2d 147 (8th Cir. 1966). One need not be charged as an aider and abettor to be held as one. Yeloushan v. United States, 339 F.2d 533 (5th Cir. 1964). Evidence showing an offense to have been committed by a principal is necessary, although it is not required that the principal be convicted, or even that identity of the principal be established. Pigman v. United States, 407 F.2d 237, 239 (8th Cir. 1969).” United States v. Merriwether, 329 F.Supp. 1156, 1160 (D.C.Ala.1971), affirmed, 469 F.2d 1406 (5 Cir.).

II

The appellant also contends that the evidence was insufficient to support the verdict. Recognizing the principle that the mere presence of an individual at the time and place of a crime does not make him a party to that crime, it must also be remembered that the words “aid and abet” comprehend all assistance rendered by acts, words of encouragement or support, or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974). The common enterprise or adventure may have been entered into on the spur of the moment without pre-arrangement or preparation. Fuller v. State, 43 Ala.App. 632, 198 So.2d 625 (1966). The appellant’s actual participation need not be proved by positive testimony; the jury is to determine whether it exists and the extent of it from the conduct of the parties and all the testimony adduced. Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973).

Here the state proved more than the mere presence of the appellant at the scene of the crime. The eyewitness identification of the appellant as one of the individuals who took some money from the cigar box is sufficient to authorize his conviction notwithstanding the defense testimony that he had nothing to do with the robbery. Where the evidence is conflicting as to the defendant’s connection as an accomplice or co-conspirator, a jury question is presented. Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716 (1975); Bass v. State, 55 Ala.App. 5, 312 So.2d 576 (1975).

III

The appellant asserts that the trial court erred by charging the jury on the law of conspiracy and aiding and abetting and further by failing to give all of the requested charges.

Initially we note that at the close of the court’s oral instructions to the jury the trial judge specifically asked defense counsel if he had any exceptions. None were stated. In the absence of an exception nothing is presented for review by this court. Coleman v. State, Ala.Cr.App. 332 So.2d 746 (1976); 7 Alabama Digest, Criminal Law, «=* 1056.1(1).

Moreover, pursuant to the authorities listed under the first section of this opinion the trial court was correct in charging the jury on the law of conspiracy and aiding and abetting.

All of the charges requested by the appellant which were refused by the trial court concerned instructions either on the burden of proof or the presumption of innocence. Each was adequately and substantially covered in the court’s oral charge. They were therefore properly refused. Title 7, Section 273, Code of Alabama 1940, Recompiled 1958; Ball v. State, 51 Ala.App. 270, 284 So.2d 296 (1973).

IV

Finally we come to the most significant argument presented on appeal: Whether youthful offender status may be denied solely on the basis of the crime charged?

The appellant was sixteen years old when the offense was committed. Prior to trial he requested treatment as a youthful offender pursuant to Title 15, Section 266(1), Code of Alabama 1940, Recompiled 1958 (1971, 3rd Ex.Sess., No. 335, p. 4622, approved Feb. 10, 1972).

The record on appeal reflects that at arraignment the trial judge denied the request for youthful offender status “due to the fact that this is armed robbery of a business”. The record does not reveal and the state does not contend that any other factors were considered by the trial judge in denying the request.

The Youthful Offender Act does not require a full, formal hearing or an investigation and examination of the defendant by a probation officer in every case.

“All that is required of the trial court, * * * is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried, and if found guilty, sentenced in the normal criminal process.” Clemmons v. State, 294 Ala. 746, 749, 321 So.2d 238, 241 (1975).

Thus some investigation and examination of the appellant by the trial judge must be conducted before the request for youthful offender treatment can be lawfully denied. Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975). This examination need not be lengthy or formal and need not proceed under any prescribed form.

“The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereof — all of which can be ascertained without a lengthy, time consuming investigation by the probation officer.” Clemmons, supra, 294 Ala. 749, 321 So.2d 241.

A trial judge may not deny a request for youthful offender treatment without some examination or investigation of the defendant; he may not deny that status solely and only upon a consideration of the nature of the crime charged. While a trial judge may deny youthful offender status because of the nature of the particular crime committed, he may not reach his decision without a consideration of other factors, namely prior convictions and the age of the defendant. To deny a request after only a consideration of the crime charged is arbitrary for it removes all elements of discretion from the trial judge. The Youthful Offender Act applies equally to all crimes from petit larceny to murder in the first degree.

While an order denying a request for Youthful Offender treatment need not list or enumerate all the factors considered by the trial judge, it should reflect that some investigation, examination, or inquiry was had of the defendant before the request was denied.

Accordingly this cause is due to be remained to the trial court with instructions to that court to investigate and examine the appellant at a hearing and determine whether in its discretion the appellant should be tried as a youthful offender. This procedure was approved in Edwards, supra.

REMANDED WITH DIRECTIONS.’

All Judges concur.

AFTER REMANDMENT

BOWEN, Judge.

This cause was remanded by this court to the Circuit Court of Jefferson County with instructions to that court to investigate and examine the appellant at a hearing and determine whether in its discretion the appellant should be tried as a youthful offender in compliance with Title 15, Section 266(1), Code of Alabama 1940. On March 10, 1978, a hearing was held and the trial docket sheet recites that “all matters and things set forth in court of criminal appeals opinion and order of remandment have been considered and complied with as directed”. It also appears that the trial judge had for his consideration a “Report of Youthful Offender Investigation” completed by a Probation and Parole Supervisor of Birmingham, Alabama. Upon a consideration of these factors youthful offender treatment was denied.

Before return to remand was submitted to this court, certiorari was denied by the Alabama Supreme Court on January 27, 1978.

The proceedings on remandment have been reviewed and are in accordance with the law of this state. Having considered the merits of this appeal in our initial decision, the judgment of the trial court is hereby affirmed.

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-211.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Christine JOHNSON v. STATE.
    7 Div. 559.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Huel M. Love and B. Greg Wood of Love, Love, Lawrence & Burton, Talladega, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was indicted for murder in the first degree involving the rifle slaying of the man with whom she had been living for several years. The shooting occurred on December 18, 1976, outside the home of appellant. She was convicted of murder in the second degree and the jury fixed her punishment at twenty years in the penitentiary. She was represented by counsel of her choice and at arraignment pleaded not guilty. Her retained counsel represents her on this appeal.

The evidence was in hopeless conflict and only a jury could unscramble the confused state of the evidence and arrive at a verdict. The evidence for the State made out a case of homicide against appellant but appellant denied that she fired the fatal shot and further denied that she was present when the deceased was shot. She claimed she was at her daughter’s house about seventy-five yards away when she learned the deceased had been shot.

Officer William Edward Traylor testified that he was an investigator with the Alabama Bureau of Investigation and that on the night of December 18, 1976, he was dispatched to 108 Gray Road in Heflin, Cle-burne County, Alabama, to investigate a shooting at this address. When he arrived he found the victim, James C. Johnson, had been carried by ambulance to a local hospital. He made a careful inspection of the premises and made numerous photographs depicting blood throughout the house. The photographs were introduced into evidence by appellant’s counsel. Traylor also found a .22 rifle on the front porch of appellant’s house. On a table in the back yard he found a 12 gauge bolt action shotgun. This gun had been on the table for some time as he observed spider webs leading from the barrel of the gun to the table and it was his opinion this shotgun had not been fired lately.

He further testified that he found cartridges for a .22 caliber weapon in one of the bedrooms of the house and also in the living room. This officer personally knew the deceased and made photographs of him which were used to identify the victim to the Toxicologist who conducted a postmortem examination on the body of the victim. These photographs were made of the deceased at the Cleburne County Hospital on the night he was shot.

This officer sent the .22 caliber rifle, cartridges, and the shotgun to the State Laboratory in Jacksonville to the Director, John M. Case, for examination.

The Toxicologist, Carlos Rabren, whose qualifications were admitted by the defense, testified that he performed a postmortem on a black male on Monday, December 20, 1976, in the autopsy room in the Auburn Laboratory. He was shown photographs of the deceased and identified them as the black male on whom he performed the postmortem. This examination was performed in the presence of the Coroner of Cleburne County and another employee of the Laboratory. He said that during the course of the autopsy he recovered a small caliber projectile which had severed the left pudendal vein, “which is a very large vessel.” He stated his opinion as to the cause of death in these words: “In my opinion, death in this case resulted from massive hemorrhage, associated with a bullet wound which severed the left pudendal vein.”

Mr. John M. Case, a Criminalist with the Alabama Department of Toxicology, whose qualifications as a ballistics expert were admitted, testified that he received from Officer Gwin McKleroy a Mossburg 12 gauge bolt action shotgun and a Winchester Model 67, .22 caliber rifle. He was requested to examine the weapons to determine if the bullets from either weapon matched a bullet removed from the body of the deceased. He test-fired the weapons and compared the test bullets from the .22 caliber rifle with the bullet identified from the body, “and in my opinion the bullet from the body was fired from this rifle.”

Mr. Case further stated that he examined the shotgun for blood stains and failed to find any blood stains on the shotgun. He said a live round was submitted with the shotgun, but it was not inside the weapon.

On cross-examination Mr. Case testified that when he received the weapons, cartridges, and shell from Officer McKleroy he also received a sealed vial of blood labeled with the name of the deceased. He ran a laboratory test on this blood sample and it showed the presence of ethyl alcohol in the amount of 0.19 percent. Mr. Case said, “At this alcohol level a person displays some mental confusion, muscular impairment, and possibly has a staggering gait.”

Police Officer Kerry Gwin McKleroy of the City of Heflin testified that he and another officer were sent to the place where the shooting occurred and arrived at about 8:30 p. m. He said they were the first officers to reach the scene. He said that appellant was not at her home. He saw the man who had been shot lying on the ground beside an automobile. The car lights were on and the door on the driver’s side was open but the motor was not running. He further stated that he personally knew the deceased and that the automobile belonged to him.

He further testified that the only two people present who were known to him were Kelly Cunningham and Seletha Braz-zell. He stated when they arrived that Cunningham and Brazzell were around the body of the deceased and in a few minutes the brother of the deceased arrived. He said that the first thing he observed was Kelly Cunningham and Seletha Brazzell were around near the victim and he told them to stand back. He stated that he then got down over the victim and asked who shot him and he replied, “Christine,” and that this was in a low whispered tone. He said he was about two and one half inches from the victim’s mouth so that he could hear his answers. This officer asked the deceased how he was shot and the only thing he could say was “rif.”, and that his eyes rolled back in his head, and that in the opinion of the officer he was dying.

From the record:

“The Court: Let me ask you something. Was his eyes rolled back and mouth hanging open before he spoke or after?
“A: After.
“The Court: After he spoke, I see. All right. Thank you.”

Appellant’s counsel objected to this testimony on the “ground it doesn’t come under the rule.”

“THE COURT: I overrule the objection and will allow this testimony as a dying declaration. The jury is entitled to infer, and, of course, I am entitled to infer, that Mr. Johnson had requested assistance in getting to the hospital, had stated that he was shot — not that he was dying or that it was serious, or anything else; but simply that he was shot and wanted to go to the hospital — that he had spread blood around pretty well, he had bled in the car, the lights were on, the car was angled sort of across the road and partly off the road, the left door was open, and he was lying on his back, and Christine' — not Christine — Seletha Brazzell stated probably within two or two and a half feet of the man’s head that, ‘he’s dying.’ I believe we are all entitled to infer from that that he knew he was dying and that he made a statement as to the cause of his death and the person responsible; and he did die. I believe that really covers the elements of a dying declaration.”

Both Seletha Brazzell and Kelly Cunningham were present at appellant’s home prior to the difficulty leading up to the killing of the deceased. According to their testimony all parties present that night had been drinking beer, vodka, and whiskey. Appellant had gone to Anniston to buy an automobile for the deceased as a Christmas present as he had wrecked his car, but they did not bring the car home as there was something mechanically wrong with it. Appellant left the deceased and returned home. Kelly Cunningham was rooming with appellant and the deceased.

Appellant asked Cunningham to take the car to a service station and put two or three dollars worth of gas in it. When the deceased came home he got into an argument about why she permitted Cunningham to drive the car. The argument became heated and the deceased told appellant that he had to walk all the way from Anniston.

Appellant and the deceased kept arguing and the deceased picked up a long gun and started waving it around. He did not point the gun at anyone but put it down and said, “I’m getting the hell out of here,” and walked out the front door. According to Brazzell the appellant picked up the rifle and followed the deceased out the front door and in a minute she heard a shot. She then saw appellant come back in the house and get her pocketbook and told Cunningham to hide the beer and whiskey as the cops would be there in a few minutes. Appellant then left her house and went to her daughter’s house. She further testified that in a few minutes the deceased came back in the house and told Cunningham he had been shot. Cunningham told him he could not drive him to the hospital as he did not have a driver’s license and that he was also drunk and might get arrested. The deceased was bloody and he walked through several rooms leaving a trail of blood. The deceased then walked out the door and got in a car to drive himself, but she did not hear the car crank.

She and Cunningham went outside and found the deceased lying near a ditch beside his car and she felt his pulse and told everyone around that he was dying. She stated the deceased was trying to say something but “the white stuff started bubbling out of his mouth.” At this point the officers and the ambulance arrived and they took the victim to the hospital. He was dead on arrival in the emergency room.

On cross-examination she stated that when the deceased came in the house he got into an immediate argument with the appellant and this argument lasted about thirty minutes. She heard the deceased tell appellant that he was going to “blow her _away,” but he walked out the house without pointing the gun at anyone. She further testified that when she and Cunningham went out the front door they stumbled over the rifle on the front porch and that Cunningham started to pick up the gun, but she told him not to touch it.

On examination by the Court this witness testified that she first saw the deceased with a gun but when he walked out the front door she did not see a gun.

Kelly Cunningham testified that he was rooming with appellant and the deceased at the time of the shooting. He testified that when the deceased came home that night he got into an argument with appellant in the bedroom; that a few minutes later the deceased came out and started to leave the house; that he saw appellant come out with a rifle in her hand and follow the deceased to the front door and she was saying, “I’m going to kill the SOB”, and he saw appellant on the front porch with a rifle in her hand and he heard one shot. In a few moments she came back inside the house and said, “I think I shot the SOB”. She further said “you had better hide the whiskey, because the cops will be here in a few minutes.” He picked up the whiskey and hid it.

Brazzell and Cunningham were both carried to police headquarters and given their Miranda rights and warnings. After they both signed statements concerning the shooting they were released from custody.

Appellant testified that when the deceased came home that night they got into an argument and the deceased slapped her. After he slapped her she got her pocketbook and went to her daughter’s house. She denied shooting the deceased and denied telling Cunningham to hide the whiskey as the cops would be there in a few minutes. She claimed she heard about the shooting only after the officers came to her daughter’s house and arrested her. In short, she knew nothing about the shooting of her common-law husband.

On cross-examination she was asked if she was convicted in the Circuit Court of Cleburne County, Alabama, of manslaughter in the first degree on September 26, 1955, and she said, “Yes.” She was further asked if she was convicted of first degree manslaughter on October 1, 1970, in the Circuit Court of Calhoun County, Alabama, and she answered, “Yes.” Both of these questions were objected to on the ground that the proper predicate had not been laid. These objections were overruled.

Appellant’s counsel then moved for a mistrial stating:

“That Mr. Merrill asked this defendant about two prior convictions in the Circuit Court of this County and Calhoun County, when there was no probative value to them; the requirements by law had not been met prior to showing such convictions; that it was just introduced for the sole purpose of prejudicing the minds of the jury and attempting to get excessive or greater punishment.”
“The Court: I am going to overrule. I will say this, as I understand it, it is always proper to ask the defendant whether he or she admits the conviction before offering a certified copy of the record. If the defendant admits it, then there is no need to offer the certified copy. Now, the other point, as far as I can tell, is whether Manslaughter in the First Degree involves moral turpitude; and I am ruling that it does.”

At the close of the State’s case appellant made a motion to exclude the evidence for failure to make out a prima facie case and other grounds. This motion was overruled. There was no request for the affirmative charge; no exceptions were reserved to the Court’s oral charge to the jury, and no motion for a new trial was made.

Manslaughter in the first degree is a crime involving moral turpitude and under Title 7, Section 435, Code of Alabama 1940 (now 12-21-162, Code of 1975), a defendant may be asked, for impeachment purposes, if he had been previously convicted of such a crime. Rush v. State, 253 Ala. 537, 45 So.2d 761. An oral admission of such a conviction dispenses with the necessity to introduce a certified copy of the judgment of such conviction. When a witness denies his conviction of the offense inquired about, it can be proven by the Court record of his conviction or by a properly certified copy thereof, as required by law. Ellis v. State, 244 Ala. 79, 11 So.2d 861.

In McElroy’s Alabama Evidence, Third Edition, (Gamble), Section 145.01(15), it is stated:

“The most common manner of eliciting a witness’ former conviction for a crime involving moral turpitude, as a means of impeaching his credibility, is to question him on cross-examination regarding such conviction. This, of course, is a prerequisite to any attempt by the impeaching party to introduce independent evidence of the conviction. If the witness answers in the affirmative to the question of whether he has been convicted of the crime then it is not necessary for the impeaching party to go further with any proof of the conviction.”

The trial court did not err in permitting the prosecution to cross-examine appellant concerning two prior convictions for the crimes of manslaughter in the first degree. Appellant admitted on cross-examination that she had previously been convicted of manslaughter in the first degree in the Circuit Courts of Cleburne and Calhoun Counties.

Appellant contends that the State did not prove that the body which the Toxicologist performed a postmortem on was the body of the deceased. Her argument is that it could have been the body of any black male. This contention is completely refuted by the testimony of the Toxicologist. Photographs of the deceased taken at the hospital where he was transported, and where he was pronounced dead on arrival, were shown to the Toxicologist and he positively identified the deceased, James C. Johnson, as being the man on whom he performed the autopsy. There was not one thread of evidence tending to show that the body of the deceased was not in the same condition when it was transferred from the hospital to the Auburn morgue for the autopsy.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The conflicting testimony of appellant with that of the State’s witnesses presented a jury question and the jury resolved that issue adversely to appellant. Ala.Dig.Crim.Law <3=1159.3(1).

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Christine JOHNSON.
    77-371.
    Supreme Court of Alabama.
    April 7, 1978.
   TORBERT, Chief Justice.

WRIT DENIED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    MIAMI BEACH FIRST NATIONAL BANK, Petitioner, v. William MARKHAM, etc., et al., Respondents.
    No. 50941.
    Supreme Court of Florida.
    Feb. 23, 1978.
    Rehearing Denied April 28, 1978.
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for petitioner.
    Gaylord A. Wood, Jr., Fort Lauderdale, and Betty Lynn Lee, Gen. Counsel, Harry A. Stewart and J. Bart Budetti, Asst. Gen. Counsels, for Broward County, Fort Laud-erdale, for respondents.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, HATCHETT and KARL, JJ., concur.


text:
    STATE of Florida ex rel. Richard E. GERSTEIN, etc., Relator, v. Alan R. SCHWARTZ, etc., Respondent.
    No. 51780.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied April 25, 1978.

      Richard E. Gerstein, States Atty., and Paul M. Rashkind, Asst. States Atty., Miami, for relator.
    Eugene P. Spellman and Denis Dean of Law Offices of Eugene P. Spellman, Miami, for respondent.
   PER CURIAM.

Relator, Richard E. Gerstein, State Attorney of the Eleventh Judicial Circuit, has petitioned this Court for a writ of mandamus to compel the Honorable Alan R. Schwartz, Circuit Judge of the Eleventh Judicial Circuit, to perform his legal duty under Section 921.241(1), Florida Statutes. An alternative writ was issued, Judge Schwartz responded, the briefs of the parties were filed and the cause is ready for final disposition.

Section 921.241(1), Florida Statutes, requires judges to have the fingerprints of defendants, convicted in their courts of felonies, attached to the written judgment of guilt. The fingerprints must be attached in open court in the presence of the judge. And the judge is to certify that the fingerprints are the felon’s. Judge Schwartz refuses to carry out this duty because he believes the statute is a legislative ihfringement on the judicial branch of government, contrary to our constitutional scheme of separation of powers. The same argument was advanced under the 1885 Constitution against a substantially identical predecessor to the statute in Hearns v. State, 223 So.2d 738 (Fla.1969). The argument was rejected because it is within legislative bounds for the Legislature to confer on the judiciary reasonable duties designed to promote law enforcement, including deterrence to recidivism. Hearns at 739, 740. Nothing has intervened since then which makes the reasoning in Hearns any less forceful when applied to this statute, which has law enforcement, too, as part of its purpose.

Judge Schwartz is directed to comply with Section 921.241, Florida Statutes.

It is so ordered.

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

      . 921.241 Felony judgments; fingerprints require in record. — (1) Every judgment of guilty or not guilty of a felony shall be in writing, signed by the judge, and recorded by the clerk of the court. The judge shall cause to be affixed to every written judgment of guilty of a felony, in open court and in the presence of such judge, the fingerprints of the defendant against whom such judgment is rendered. Such fingerprints shall be affixed beneath the judge’s signature to such judgment. Beneath such fingerprints shall be appended a certificate to the following effect:
      “I hereby certify that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, _, and that they were placed thereon by said defendant in my presence, in open court, this the_ day of_, 19_”
      Such certificate shall be signed by the judge, whose signature thereto shall be followed by the word “Judge.”

      . 921.241 Felony judgments; fingerprints required in record. — f2) Any such written judgment of guilty of a felony, or a certified copy thereof, shall be admissible in evidence in the several courts of this state as prima facie evidence that the fingerprints appearing thereon and certified by the judge as aforesaid are the fingerprints of the defendant against whom such judgment of guilty of a felony was rendered.
      And see § 775.084, Fla.Stat., providing extended terms for habitual felony offenders.


text:
    Ruby Jane PUCKETT, Petitioner, v. STATE of Florida, Respondent.
    No. 51833.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied April 25, 1978.
    Barry W. Beroset of Murphy & Beroset, Pensacola, for petitioner.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. Certiorari was granted, without argument, based on an apparent decisional conflict with Fehre v. State, 158 Fla. 853, 30 So.2d 367 (1947), and Douglas v. State, 152 Fla. 63, 10 So.2d 731 (1942). Upon further consideration of the matter and review of the record, we have .determined that the facts of the present case are materially different from those involved in the cited decisions. Therefore, the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution, and the writ must be and is hereby discharged.

It is so ordered.

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

ADKINS, J., dissents.


text:
    SUNNY WRECKER SERVICE, INC., etc., et al., Petitioners, v. Paula F. HAWKINS et al., Respondents.
    No. 51918.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied April 26, 1978.
    Richard B. Austin and John P. Bond, Miami, and David E. Erwin, Tallahassee, for petitioners.
    Prentice P. Pruitt, Legal Director and Joseph A. McGlothlin and Pamela Johnson, Staff Counsels, Tallahassee, for respondents.
   PER CURIAM.

Affirmed. ASI v. Public Service Commission, 334 So.2d 594 (Fla.1976).

OVERTON, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.

ENGLAND, J., dissents.


text:
    Sonia JACOBS a/k/a Sonia Linder, Appellant, v. STATE of Florida, Appellee.
    No. 50175.
    Supreme Court of Florida.
    March 16, 1978.

      Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Michael J. Satz, State’s Atty., and Linda DeBene, Asst. State’s Atty., Fort Lauderdale, for appellee.
   PER CURIAM.

This cause is pending before this Court on direct appeal from two convictions of murder in the first degree and sentences of death, and conviction of kidnapping and sentence of life imprisonment.

After notice of appeal was filed with this Court, appellant filed an application for stay and for leave to file an extraordinary motion for new trial in the nature of a petition for writ of error coram nobis, alleging, inter alia, that the petition is predicated upon newly discovered evidence which could have precluded the conviction of appellant, to wit, evidence as it relates to her co-defendant, Walter Rhodes, having specifically stated on more than one occasion after appellant’s conviction that it was he who fired the shots.

The State has responded that the issue now alleged as a basis of appellant’s application is not newly discovered evidence, but rather, the facts now alleged by appellant were the appellant’s defense at trial and were presented, cross-examined, argued and adjudicated. Appellee contends that at the time of entering the negotiated plea in this case, Rhodes admitted to having committed the homicides at issue.

Thereafter, this Court issued an order directing the trial judge to file a response with this Court stating whether he imposed the death sentence in consideration of any information not known to appellant and, in the event no such information was used, to affirmatively state the same in his response. Attaching a copy of the presen-tence investigation report to his response, the trial judge states that he has no knowledge as to whether the appellant had access to the attached report.

Subsequently, appellant filed a supplement to his motion for stay and leave to file an extraordinary motion for new trial, in which he alleges that pursuant to this Court’s Gardner order of June 15, 1977, the sentencing judge, by response of July 5, 1977, provided counsel for appellant with a copy of a full presentence investigation report; that attached to the presentence investigation report is a confidential report of a polygraph examination of Walter Rhodes, which instrument, appellant contends, was never furnished defendant or her counsel nor were they otherwise made aware of it; that pursuant to Fla.R.Crim.P. 3.220(a)(2) and 3.220(f), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the State was compelled to disclose the same; and that these facts were not in the nature of redundant or cumulative testimony.

Appellee, in its reply to the supplement, acknowledges that the polygraph report attached to the presentence investigation report was not furnished to appellant or her counsel but is without knowledge as to whether counsel was aware of this report. Appellee, however, submits that this report was not subject to disclosure under the discovery rules and the failure to disclose said report was not a violation of a constitutional duty of the prosecution to disclose favorable and material information under Brady v. Maryland, supra. Appellee further discloses that contrary to appellant’s allegations, the testimony of Walter Rhodes was not contrary to what he told the investigator who performed the polygraph examination, that an examination of the entire testimony of Rhodes reveals the absence of any contradiction between Rhodes’ testimony and the narrative of his statement to the polygraph operator, and that the statements contained in the report are neither favorable to appellant nor material in the constitutional sense.

Initially, we find that the trial court’s response to our order of June 15, 1977, is insufficient since, although the trial judge does admit utilizing the information in the presentence investigation report in determining the sentences to be imposed upon appellant, he also expressly states he has no knowledge as to whether the appellant had access to the presentence investigation report. In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of the United States held that it is a denial of due process of law to impose the death penalty on the basis of information undisclosed to counsel for the appellant which the appellant had no opportunity to explain or deny. Because, from the response of the trial judge and the record before us, we are unable to determine whether appellant had an opportunity to explain or deny matters contained in the presentence investigation report, we must again relinquish jurisdiction to the trial court and direct the trial judge to make a factual finding as to whether the appellant, at the time of sentencing, had access to the presentence investigation report and whether she was given an opportunity to deny or explain its contents. If the trial judge determines that appellant did not have access to the report at sentencing and, therefore, did not have an opportunity to deny or explain, he shall now give appellant an opportunity to rebut the information contained in the presentence investigation report. As appears in her supplement to the motion for stay, appellant was furnished a copy of the presentence investigation report on July 5, 1977, when the trial court filed its original response to our Gardner order.

Furthermore, we direct the trial court to consider whether there has been a Brady violation, as contended by appellant. In Brady v. Maryland, supra, a statement of an accomplice admitting the actual homicide was withheld by the prosecution and did not become known to the defendant until after he had been tried, convicted, sentenced and his conviction affirmed on appeal. The Supreme Court held that suppression of this confession was a violation of the due process clause of the Fourteenth Amendment and concluded:

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

Accordingly, jurisdiction is temporarily relinquished to the trial court with directions to the trial judge to make findings as to whether appellant had access to the presentence investigation report during the sentencing phase and an opportunity to explain or deny, and whether there has been a Brady violation. If the trial court determines that appellant or her counsel did not have access to the presentence investigation report, which the trial judge admits that he utilized in determining the sentences that were to be imposed upon appellant, the trial judge is instructed to conduct a new hearing.

It is so ordered.

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


author: PER CURIAM. OVERTON, Chief Justice, BOYD, Justice,

text:
    In re INQUIRY CONCERNING A JUDGE, J. Q. C. NO. 77-16.
    No. 51238.
    Supreme Court of Florida.
    March 16, 1978.
    Rehearing Denied April 4, 1978.

      John R. Asbell of Asbell, Hains & Doyle, Naples, William C. Clark, Vice-Chairman, West Palm Beach, and John T. Wigginton, Gen. Counsel, Tallahassee, for Fla. Judicial Qualifications Com’n, petitioner.
    Daniel S. Dearing of Daniel S. Dearing Law Offices, Tallahassee, for Judge David L. Taunton, respondent.
   PER CURIAM.

We have for consideration the petition of David L. Taunton, County Judge of Gulf County, Florida, in which we are asked to reject the Findings of Fact, Conclusions of Law and Recommendations of Discipline filed on August 25, 1977, by the Florida Judicial Qualifications Commission. We have jurisdiction by virtue of Article V, Section 12, Florida Constitution.

Having found probable cause to exist to believe that Judge Taunton had committed certain described acts of judicial misconduct, the Florida Judicial Qualifications Commission instituted formal proceedings against him. The Notice of Formal Proceedings directed to Taunton contained ten counts of judicial misconduct. After hearing, the Commission found Judge Taunton to be not guilty of the conduct alleged in Counts III, V and VI and struck Counts II and X. As to the remainder of the counts, the Commission found Taunton guilty as charged and, thereby, guilty of violating Canons 2 A, 2 B, 3 A(4), 3 A(6), 3 B(2), 4 B and 5 A, and recommended his removal from office.

Count I charged that Taunton prepared a motion for change of venue and mailed it to various defendants with directions on filing and an opinion as to the validity of the motions; that he knowingly, intentionally placed himself in a position whereby his impartiality toward a case before him could be questioned and in which his recusal was required; that he believes his actions were proper; and that he intends to continue to act according to his own standards. Count IV charged that in an effort to promote his personalized concept of justice, he and others employed by him conducted investigations, during office hours, for his own purpose and unrelated to his judicial duties, into the conduct of certain local officials; that in the course of those investigations, he made long distance telephone calls at county expense; that he made a speech publicly accusing several residents of Gulf County of illegal conduct. Count VII charged that James Austin was convicted in Judge Taunton’s court of driving under the influence of alcohol, and an appeal was taken; that Judge Taunton volunteered to, and did, appear as a character witness for James Austin, without necessity of a subpoena, before a hearing examiner for the Department of Highway Safety and Motor Vehicles. Count VIII charged that while presiding in the case of West Fla. Gas Co. v. Mattie Mae Hill, Judge Taunton, although agreeing that defendant was delinquent in her payments, refused to issue the writ of replevin requested by plaintiff; that he agreed to pay the amount owed by Mattie Hill if she was unable to pay the same; and that he gave his brother money to give to Mattie Hill so that she could pay the balance due on the claim but refused to require defendant to pay for the cost of the action. Count IX charged that in the case of U. S. Credit Life Corp. v. Ralston Lynch, pending before Judge Taunton, a plan was reached and approved by the parties and Taunton whereby defendant was to pay plaintiff $66.00 per month; that defendant failed to make payment in September, October and November; that plaintiff, as required by Judge Taunton, filed with the court an amount due affidavit; that without notice to plaintiff, Taunton spoke with defendant in his office relative to defendant’s inability to pay; that Taunton refused to execute the final judgment because of defendant’s financial difficulties; and that he feels compelled to consider the hardship, if any, on a defendant in determining whether or not to enter final judgment.

Judge Taunton, through counsel, questions the procedures before the Judicial Qualifications Commission and asserts that •they lacked the elements of fundamental fairness and due process. We have reviewed the record, considered each of his complaints as to the procedure and conclude that his objections are without merit.

The Commission, at a meeting on February 18, 1977, determined that probable cause existed to believe that respondent was guilty of having committed acts of judicial misconduct. Thereafter, on March 4, 1977, a Certificate of Probable Cause was mailed to Judge Taunton, and on March 7, 1977, a Notice of Formal Proceedings was served on him. The hearing was conducted on and after June 20, 1977. The period of approximately three and one-half months between the service of notice and the commencement of hearing provided ample time to retain counsel and prepare a defense to the charges.

We find that Judge Taunton suffered no prejudice by the action of the Judicial Qualifications Commission in amending the Notice of Formal Proceedings on April 26, 1977, for the purpose of adding three counts, nor was he prejudiced by the granting of counsel’s ore tenus motion to delete a phrase from Count III, paragraph 13, during the hearing. The first amendment was permitted by Fla.Jud.Qual. Comm’n Rule 17, and the Judge was given reasonable time both to answer the amendment and to prepare and present his defense. The finding of not guilty as to Count III eliminated any question as to the authority or propriety of the Commission’s action in permitting the amendment to Count III after the Commission counsel had rested his case.

On May 12, 1977, before Judge Taunton had filed his answer to the amended Notice of Formal Proceedings, and four days before the answer was due, the Commission set the formal hearing for June 20, 1977. Fla.Jud.Qual.Comm’n Rule 11(a) provides that “after the filing of an answer or the expiration of the time for its filing, the commission shall order a hearing. . . ” We hold that the premature filing of the Notice of Hearing sub judice was a harmless error.

In every Judicial Qualifications Commission proceeding, the respondent judge is guaranteed the right and reasonable opportunity to be represented by an attorney. Fla.Jud.Qual.Comm’n Rule 16. Judge Taunton contends that he was effectively denied his right to counsel when the Commission denied his motion for a continuance, which motion was filed on his behalf on May 23, 1977. The motion recites that counsel agreed to represent Judge Taunton on April 28, 1977; that counsel had conflicting court engagements on June 20 and 21, 1977; that requests for postponement of the conflicting engagements would not be favorably received; and that even though the conflicts could be reconciled, there was insufficient time between the date of retention of counsel and the date of the scheduled hearing to permit proper preparation for the hearing. The Commission denied the motion on May 25, 1977. This Court refused to grant a stay on June 15, 1977, and Judge Taunton proceeded to hearing without representation.

We agree with respondent that the right to counsel is extremely important in proceedings before the Judicial Qualifications Commission. In re Kelly, 238 So.2d 565 (Fla.1970). He accurately stated one of the reasons why he should not have proceeded pro se when he stated at the beginning of the formal hearing:

“An additional problem is presented by being cast in dual roles in this procedure — the role of counsel and the role of defendant. As counsel, it will be necessary at times for me to be disagreeable and aggressive and no doubt I will stumble and blunder many times. What has been very well said, he who represents himself has a fool for a client. Not being a lawyer and having no experience in this role I find myself in today amplifies this predicament. My concern is this: Can the Members of this Commission distinguish between David Taunton the blundering counsel and David Taunton the defendant. Consequently will the verdict be cast as judgment in both roles.”

Respondent was not deprived of his right to counsel. He simply did not retain counsel who could arrange his schedule to be able to represent him. Although Judge Taunton is not a lawyer, he has extensive, formal, non-legal education, and he has studied the law formally and in connection with his judicial duties. At the time of the alleged offenses and throughout the Commission proceedings, he was a duly-elected and fully-qualified county judge. He was subject to the Code of Judicial Conduct and was within the jurisdiction of the Commission. He was charged with knowledge of the applicable rules, including the rules which provide his right to counsel.

Given these facts and in consideration of the time that was available to the Judge to retain counsel, we conclude that the Commission did not abuse its discretion in denying the requested continuance and the respondent was not effectively deprived of counsel through action of the Commission.

Respondent’s contentions with respect to the place of his hearing, the dual role of the presiding officer and the absence of an opportunity to refute or explain his actions before the amended notice was filed are also without merit. The Commission was in substantial compliance with its procedural rules, and no deviation therefrom was serious enough to deprive this respondent of due process or a full and fair hearing.

The testimony and exhibits received by the Commission support the findings that Judge Taunton knowingly and intentionally placed himself in a position whereby his impartiality could be questioned; that he misused the administration of his office contrary to the Code of Judicial Conduct; that he improperly used the public telephone and copying facilities; that he did not reimburse the County for expenses incurred and supplies used; that after revoking driving privileges of a defendant in a case before him, he voluntarily appeared before a hearing officer in support of a petition for reinstatement of the privileges; that he refused to issue a writ of replevin and refused to assess costs after supplying the money to pay the principal amount claimed by the plaintiff; and that he conducted ex parte conferences with a defendant in a case before him and refused to execute judgment against him. The Commission’s findings that Judge Taunton opted to follow his own conscience when it conflicted with the Code of Judicial Conduct and that he will perform his future duties on that basis are likewise supported by the record.

Although no single charged offense standing alone would warrant punishment, the combination of the specified activities and the respondent’s unwillingness or inability to make his future conduct conform to the rules of law and canons of ethics is sufficient to support a recommendation of discipline. The Court announced this principle in its review of the first proceeding of the Judicial Qualifications Commission, In re Kelly, supra, wherein it was held:

“Conduct unbecoming a member of the judiciary may be proved by evidence of specific major incidents which indicate such conduct, or it may also be proved by evidence of an accumulation of small and ostensibly innocuous incidents which, when considered together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary. The record in this case clearly reflects a pattern of petitioner’s hostility toward many attorneys, court officials, and fellow judges, as well as a concerted effort to pamper the public and news media by press releases designed to bolster his personal image at the expense of the judiciary. This is conduct unbecoming a member of the judiciary.”

This case is particularly difficult because it appears that Judge Taunton was motivated by his own sense of right and wrong and his concern and compassion for the poor and underprivileged. His motives appear to be wholesome and unselfish, and his actions seem to have been calculated to be helpful and charitable. At the bar of this Court, during oral argument, counsel for the Judicial Qualifications Commission was complimentary of the respondent as a person and said of him, “I think it is clear from the record that his compassion for people and for the poor override his understanding, or what should be his understanding, of his judicial duties.”

In the interest of protecting and preserving a strong and independent judiciary, we must be careful never to judge a respondent and determine whether to remove him from office on the grounds that he possesses an unpopular philosophy, has offensive idiosyncrasies, has rendered unpopular decisions or is too compassionate. Unless his attitudes, prejudices or beliefs are translated into action or inaction that constitutes a violation of law or the Code of Judicial Conduct, rendering him presently unfit to hold the office, he should be free to make his decisions and administer his office without fearing an investigation by the Commission that could lead to removal from office.

Every judicial officer is the sum of his past. When he dons his robe and ascends to the bench, he is not divested of the effects of his previous training, education and real life experiences. He takes his official office as a human being, not as a judicial robot. As a human being, he is subject to human strengths and weaknesses; he will have adopted firm ideas and developed a conscience. We do not ask that he abandon those accumulated individual qualities so that he might conform to some predetermined norm. He may bring his past experiences, beliefs and sense of justice to bear on the decisions he is required to make. Every judicial officer is granted broad discretionary powers, and one of the great strengths of our system is the carefully guarded right to exercise independently those powers.

We have traditionally tolerated differences of opinion and variations in philosophy among judicial officers. Strong minority views expressed by members of the judiciary do not constitute grounds for disciplinary action, although they may bring on criticism. Professor James R. Kerr recently reviewed the judicial career of the late United States Supreme Court Justice Frank Murphy and said:

“He was always concerned with the human dimension of cases before the Court and had a heightened quality of empathy and sensitivity to the litigants who could be called underdogs. These attitudes colored his opinions and critics claimed that he acted on the basis of his own conscience and sense of fairness, rather than on the basis of respect for and perpetuation of judicial proprieties and conventions. . . . ”

Justice Ervin, dissenting from the majority opinion in Dixon v. State, 283 So.2d 1 (Fla.1973), was critical of Florida’s death penalty statute and the opinion upholding its constitutionality. Articulating his own attitude and commenting on the prevailing legislative and judicial motivation, he observed:

“It is our duty as judges sworn to uphold the nation’s constitution to apply national constitutional standards with clinical objectivity in this matter, without catering to popular clamor or the vagaries of provincialism, local pressures, emotion or passion.
“In our pecuniary culture the rage to emulate status by invidious comparison on bases of wealth or one’s cunning ability to get more and spend more than his neighbors, causes us to constantly downgrade or become callous to the value of humanitarian principles.
“Because of our overdrawn servility to the concepts of economic status and our personal standing in those respects, we are inclined to be callous to the virtues of compassion and refuse to take slower paces for the correction of human ills through education and rehabilitation. These more enlightened alternatives are not harsh or speedy enough to suit our atavistic sense of vengeance or our passions, or to calm our imagined fears of threats to our pecuniary society or to abate our belief that extreme deterrents are necessary.”

There will not be an independent, effective judiciary if we expect all judges to fit a common mold or encroach upon their discretionary powers by instituting disciplinary proceedings against those who deviate in some minor way from the model constructed by the members of the Judicial Qualifications Commission. In a forceful dissenting opinion in State ex rel. Turner v. Earle, 295 So.2d 609, at 621 (Fla.1974), Justice Ervin cautioned:

“The Commission should never be unmerciful or Draconian. Nor should it take a Pecksniffian or crusading stance. Pecadillos [sic] of a judge should be ignored by the Commission unless they cumulatively reflect upon the present quality of his judicial service or render him an object of disrespect and derision in his role to the point of ineffectiveness. . . "

And, in a historic proceeding in which the Florida Senate acquitted Circuit Judge Richard Kelly of impeachment charges, counsel for Kelly articulated the concern we must all have for the independence of the judiciary:

“Our primary responsibility is to Richard Kelly, but I think, in a larger sense, that we have a responsibility to the entire judiciary of the State of Florida. The proposition that is before you in these proceedings involves every judge, sitting in every court in the State of Florida, and that proposition is simply this:
“Must a judge render decisions on the basis of the influence of the lawyer involved? Must a judge curry favor with the Bar that practices before him, or risk impeachment, risk being discharged from his office, risk public disgrace and humiliation, or can he make his decisions independently, as an independent judiciary was intended to make them?
“Now, gentlemen, I think, also, in a larger sense, every citizen of the State of Florida is a participant in these proceedings because, when the independence of the judiciary is diminished, it diminishes all of us. The very foundation of all our liberties and all our rights depends upon an independent judiciary, which is not subject to prejudice by lawyers, litigants, or from any other source.”

There are, of course, limits that every judicial officer must observe. Judges are required to follow the law and apply it fairly and objectively to all who appear before them. No judge is permitted to substitute his concept of what the law ought to be for what the law actually is. He may exercise his judicial discretion conservatively or liberally, and he may temper justice with mercy, but he may not deny justice to any person. He may not withhold justice from one litigant in favor of another for whatever reason. Every judge is answerable for excesses or abuse of his awesome power. There is no place in our system for justice by whim or capricious notion. Regardless of the philosophy to which a justice or judge subscribes, he is not permitted to conduct himself in a manner which is unbecoming to a member of the judiciary and which demonstrates an unfitness to hold office.

Justices and judges are integral parts of the system by which people are governed. Restraints on those invested with power to govern are essential. As James Madison said:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Judge Taunton, found guilty of conduct unbecoming a member of the judiciary because he violated specific canons of the Code of Judicial Conduct, surely places this Court in the very situation in which he found himself on occasion. We are invited to suspend our judicial obligations under the Code, look to his good intentions and overlook completely his transgressions. From the record, there is no doubt that he would feel free to adopt just that approach. We cannot, if we are to preserve our concept of justice, condone the conduct of Judge Taunton and announce to the judiciary of this state that we will not impose discipline upon judicial officers for conduct that demonstrates a present unfitness to hold judicial office if it is our opinion that the judge is a good person who acted with the personal belief that he was doing the proper thing. If we follow such a course in Judge Taunton’s case, in which he was motivated by compassion, we would be obliged to condone the same judicial misconduct brought about by the opposite emotion if the subject judge were to have acted in the belief that he was right. There can be no condonation of judicial failure to follow the law or failure to obey the impartiality and objectivity required by the Code of Judicial Conduct, whether the judge be tough, tender or something in between. Rather, we are obliged to uphold the prohibition against advocacy prescribed in the Code of Judicial Conduct and require that all judicial officers obey its precepts as well as the law, and make clear to all who have business before our courts that they can expect equal justice and fair treatment regardless of station in life.

Relying on In re Boyd, 308 So.2d 13 (Fla.1975), respondent contends that he cannot be removed from office unless there is clear and convincing evidence, free of substantial doubts or inconsistencies, that he was guilty of a serious and grievous wrong and that he committed it with a corrupt motive. He asserts that the record reflects that in every instance, he was guided only by a sincere concern for carrying out his duties, not by any motive of personal advancement. In that case and in In re Dekle, 308 So.2d 5 (Fla.1975), the rule cited by respondent was established and was the controlling rule when Judge Taunton failed to comply with the Code. The people of Florida, in November of 1976, adopted an amendment to Article V, Section 12(f), Florida Constitution, which added the following sentence: “Malafides, scienter or moral turpitude on the part of a justice or judge shall not be required for removal from office of a justice or judge whose conduct demonstrates a present unfitness to hold office.” The amendment invalidates the prior rule as of the effective date of the amendment. A judicial officer may now be removed from his office if it is determined that his conduct demonstrates a present unfitness to hold office, even though his motives were good and wholesome.

We agree with respondent that the record is devoid of evidence of corruption or corrupt motive on his part. We note that all of the activities for which he is to be disciplined took place before the effective date of the amendment to Article V, Section 12(f), Florida Constitution, and at a time when such activities, without corrupt motive, would not warrant his removal from office. We are, therefore, confronted with the question of whether the 1976 constitutional amendment may be applied retroactively to transform his improper, but non-corrupt, conduct into grounds for removal after the fact.

The prohibitions of ex post facto laws in Article 1, § 9, Clause 3, of the Constitution of the United States and Article I, Section 10, of the Florida Constitution apply only to laws prescribing criminal penalties; they would not prevent the retroactive application of the 1976 constitutional change to Judge Taunton’s case. Surf Club v. Tatem Surf Club, Inc., 151 Fla. 406, 10 So.2d 554 (1942).

Proceedings authorized by Article V, Section 12, Florida Constitution, for judicial discipline are not criminal proceedings, but we have held, and do here affirm, that an accused judicial officer is to be accorded both substantive and procedural due process of law. He may not be removed from office unless his constitutional rights are protected. In In re Kelly, supra, the Court opined:

“The proceeding before the Commission lacks the essential characteristics of a criminal prosecution. The object is not to inflict punishment, but to determine whether one who exercises judicial power is unfit to hold a judgeship. The Commission, created by the Constitution as an arm of this Court, is authorized to conduct a hearing for the purpose of aiding this Court in determining whether a judge is unfit or unsuitable. Under the provisions of the Constitution this Court may exclude from the judiciary those persons whose unfitness or unsuitability bears a rational relationship to his qualifications for a judgeship, so long as the adjudication of unfitness rests on constitutionally permissible standards and emerges from a proceeding which conforms to the minimum standards of due process. . . . ”

Due process, guaranteed by Article I, Section 9, Florida Constitution, contemplates notice that an act is a removable offense at the time it is committed. Any other conclusion would expose judicial officers to the unfair and untenable situation in which even innocent acts of today could someday be declared improper and subject them to punishment or removal from office. We cannot approve a rule that would permit a review of every judge’s past conduct each time a change in the law occurs to determine whether innocent conduct of the past has been converted into grounds for discipline under the new law. Judicial officers are justified in relying on the current rule and in conducting themselves accordingly. We, therefore, hold that the amendment to Article V, Section 12(f), has only prospective application.

Judge Taunton engaged in conduct unbecoming a member of the judiciary. That conduct would be grounds for removal if it had taken place after the effective date of the 1976 amendment to Article Y, Section 12(f). A continuation of the improper conduct, which Judge Taunton indicated will be his future practice, will be judged in light of the current provisions of our constitution and will subject him to possible removal, notwithstanding his good intentions and compassionate motives.

Accordingly, we approve the Findings of Fact and Conclusions of Law of the Florida Judicial Qualifications Commission but decline to order Judge Taunton’s removal from office. For the reasons stated and because of his conduct, we publicly reprimand him.

It is so ordered.

ADKINS, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., concurs with an opinion.

BOYD, J., concurs specially with an opinion.

OVERTON, Chief Justice,

concurring.

Rich or poor, claimant or defendant, the parties in a court case are each entitled to an impartial judge. A former Chief Justice of this Court has summarized the obligation of the judiciary to be:

. [T]he judiciary has ever been the poor man’s shield against oppression, the rich man's defense against the mob, and though the reformer may wince under the law’s restraints, it is his only recourse for justice if he permits blind passion to enmesh him in its clutches. It will save the minority from the tyranny of the majority and protect both from the ruthless hand of the demagogue. It is the saving quality that will make this government one of laws and not a government of men.

When a judge becomes personally involved or takes sides in a court case, he ceases to be objective and in fact has become an advocate. Having lost his impartiality, he clearly cannot judge the matter fairly. This statement does not mean that a judge should not make inquiries of the parties or witnesses.

Judges in many instances must make inquiries to seek the truth, but this must be done objectively and not as an advocate for one side or the other. The requirement in the Code- of Judicial Conduct that “[a] judge should perform the duties of his office impartially” is basic to our system of jurisprudence. Lawyers fully understand the absolute need for this requirement. Regrettably, this nonlawyer judge had not even read the Code of Judicial Conduct until this proceeding and apparently from this record still does not understand the need for impartiality. He apparently sees no problem in taking sides in a court case or being an investigator for law enforcement. In both instances he has become an advocate.

The investigation of wrongdoing is a law enforcement function of the executive branch of our government. It is not a judicial function. If a matter of wrongdoing or misconduct comes to the attention of a judicial officer, he should bring it to the attention of the appropriate official of the executive branch, whether it be the sheriff, the state attorney, or the Governor. A judge cannot be both an investigator and an impartial trier of the facts or law.

Judge Taunton broke the cardinal rule of impartiality and defends himself on the grounds that he had good motives. He fails to understand that our court system cannot work if the judge becomes an advocate for one side or the other, whatever his motive.

I fully concur in the judgment of the majority. This case illustrates the problem of a nonlawyer assuming the position of a judicial officer with no training in its responsibilities. I trust that this experience by Judge Taunton impresses upon him the absolute need for a judge to be impartial. Without that, our system cannot work.

BOYD, Justice,

concurring specially.

I concur in the majority view publicly reprimanding respondent for his misuse of judicial office. Although he apparently was sincere in his efforts, his personal views of how to conduct the office of county judge conflicted with Canons of Judicial Ethics evolved over hundreds of years.

The most basic concept of judicial ethics is that judges must be objective and impartial. This entire record demonstrates an admitted tendency to favor defendants over plaintiffs when poor people are being sued. Compassion is a good judicial attribute, unless it is used to prevent parties from having their rights exercised in courts.

It is an elementary principle that criminal court judges should not use the influence of their offices to make public speeches charging persons with crimes or other misconduct. If they are dissatisfied with performance by other officials they may vacate their judicial posts and oppose them politically. When judges take public positions, on matters which may come before them they are required to recuse themselves on those issues, but after making such attacks the question arises whether they can objectively try other matters involving such persons.

The record shows respondent spent taxpayers money to investigate many public officials, using his court secretary for that purpose. After gathering data from public records, he notified State news media of his charges and then spent over an hour at a crowded County Commission meeting denouncing public officials. The statements were made in a County courtroom in which criminal justice is dispensed. He later attacked the Grand Jury called to investigate the charges as improperly constituted and charged the State Attorney and presiding judges with prejudice. The Grand Jury cleared the public officials, but the harm done to them personally and to public confidence in government could not be erased by the Grand Jury’s findings.

The majority opinion relies on In Re Dekle and In Re Boyd. To determine whether to rely upon those cases as precedent, the Court should consider results attained by other governmental forums considering substantially the same issues. The public records show that while the allegations were being made, Boyd was reelected in September 1974, and a Select Committee of the House of Representatives found no basis for legislative disciplinary action against him in May 1975. When Dekle subsequently retired he reestablished a successful law practice.

The majority is correct in holding respondent should be judged by judicial standards existing at the time of his misconduct.

Respondent is not a member of the Bar and had not read the Canons of Judicial Ethics until this proceeding began. He says he will continue to conduct his office the same as in the past and would rather not be a judge than to reform his unorthodox methods. If he were willing to learn and observe the Canons of Conduct our problem would be over. It seems obvious he will likely be again before the Judicial Qualifications Commission.

The majority has concluded respondent cannot be removed for the conduct mentioned herein because, at that time, a corrupt motive was required for removal. At this time, repetition of the same conduct could result in removal. He has said he has no intention of changing his activities.

For the above reasons I concur with the majority in reprimanding respondent and would request the Judicial Qualifications Commission to monitor his present and future activities.

ORDER

Petition for rehearing is denied. Texas Co. v. Davidson, 76 Fla. 475, 80 So. 558, State v. Green, 105 So.2d 817 (Fla. 1st DCA 1958).

It is so ordered

      . The petition was filed pursuant to Fla.Jud.Qual.Comm’n Rule 23.

      . On May 12, 1977, this Court, in In re Rules of the Florida Judicial Qualifications Commission, 346 So.2d 70 (Fla.1977), repealed Fla.Jud.Qual. Comm’n Rule 17 in its entirety and observed:

        “We appreciate the need for a rule as to pleading amendments during the course of a Commission proceeding, but the second sentence of the rule confers more authority than is required. That sentence reads:
      ‘The Notice may be amended to conform to proof or to set forth additional facts, whether occurring before or after the commencement of the hearing.’
      Given the investigative resources of the Commission, there is little necessity and great potential harm in a rule which allows the Commission to set forth additional facts by amendment to the formal charges after the Commission has conducted its hearing and the charges have been filed with this Court, made public, and relied upon by the justice or judge to prepare his or her defense.”

      . Fla.Jud.Qual.Comm’n Rule 11(a) assures the parties a reasonable time for preparation for the formal hearing. A premature Notice of Formal Hearing that does not allow such a reasonable period could prejudice both the Commission and respondent. Sub judice, the rule violation was minimal and non-prejudicial.

      . For a discussion of the role of non-lawyer county judges and an official report to the Court on the structure and conduct of the non-lawyer county judge training program, see Treiman v. State ex rel. Miner, 343 So.2d 819 (Fla.1977).

      . James R. Kerr, “The Neglected Opinions of Mr. Justice Murphy,” Detroit College of Law Review, Vol. 1977, No. 1, pp. 7-65, Spring 1977.

      . From the remarks of B. X Masterson, Esq., to the Florida Senate sitting as a court of impeachment on September 24, 1963, Fla.S. Jour. Court of Impeachment 387 (1963).

      . Jacob E. Cooke (ed.), The Federalist, The World Publishing Company, Cleveland, 1961, p. 349.

      . Art. V, § 12(f), Fla.Const., now provides in pertinent part:
      “Upon recommendation of two-thirds of the members of the judicial qualifications commission, the supreme court may order that the justice or judge be disciplined by appropriate reprimand, or be removed from office with termination of compensation for willful or persistent failure to perform his duties or for other conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, or be involuntarily retired for any permanent disability that seriously interferes with the performance of his duties. Malafides, scienter or moral turpitude on the part of a justice or judge shall not be required for removal from office of a justice or judge whose conduct demonstrates a present unfitness to hold office.”

      . Address entitled “The Judiciary and Democracy,” given by Justice Glenn Terrell in St. Augustine, Florida (circa 1942). The speech is preserved among the papers of Justice Terrell in the Terrell Room of the Robert M. Strozier Library on the campus of Florida State University, Tallahassee, Florida. The quote is also included in a later essay by Justice Terrell entitled “The Judiciary in a Federal Republic” which appears in The Florida Handbook, p. 164, at p. 167 (Allen Morris, 3rd ed. 1952).

      . Canon 3, Code of Judicial Conduct.


author: PER CURIAM. PER CURIAM.

text:
    Kathryn K. GLASS, Appellant, v. STATE of Florida, Appellee.
    No. HH-56.
    District Court of Appeal of Florida, First District.
    Feb. 28, 1978.
    On Rehearing April 21, 1978.
    Jason M. Chapnick, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant’s sentence for possession of more than five grams of cannabis — five years imprisonment suspended after two years and followed by five years probation — exceeded the maximum allowable penalty for that offense. Section 775.-082(3)(d), Florida Statutes (1975). The cause is thus remanded for correction of the sentencing error. See footnote 4, Noble v. State, 353 So.2d 819 (Fla.1977). Appellant’s other points are without merit.

ON REHEARING GRANTED

PER CURIAM.

The Appellant petitions for a rehearing urging that our opinion should have required that a different judge resentence her, citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

The Supreme Court in reversing the New York Court directed that should the Court upon remand require specific performance of the plea agreement, a different judge should resentence the defendant.

Our opinion affirmed the proceedings in the trial court except the sentence exceeding the maximum sentence provided by law.

Santobello dictates a different judge should resentence the defendant in this case.

McCORD, C. J., BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


text:
    JOSEPH M. KOLISCH CO. and Underwriters at Lloyds, London, Appellants, v. Bruce PARKER, Appellee.
    No. 77-279.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 27, 1978.
    Dixon, Dixon, Lane, Mitchell & Harris, George E. Patterson, Jr., Miami, for appellants.
    Turner, Shapiro & Levy, Miami, for ap-pellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

The judgment appealed from is affirmed as to the appellant Underwriters at Lloyds, London and reversed as to the appellant Joseph M. Kolisch Company. George v. Stone, 260 So.2d 259, 262 (Fla. 4th DCA 1972); Durbin Paper Stock Co. v. Watson-David Insurance Co., 167 So.2d 34, 36-37 (Fla. 3d DCA 1964).


text:
    Dana DeWITT, Appellant, v. The STATE of Florida, Appellee.
    No. 77-438.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 28, 1978.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976); Gibbs v. State, 344 So.2d 621 (Fla. 3d DCA 1977); Brown v. State, 355 So.2d 138 (Fla. 3d DCA 1978), case no. 77-432, opinion filed January 31, 1978.


text:
    Joyce Bouvier ZAUGG, Appellant, v. Frederick B. ZAUGG, Appellee.
    No. 77-1230.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 28, 1978.

      Abrams & Abrams, Miami, for appellant.
    Robert V. Shea, Coral Gables, for appel-lee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the wife, Joyce Bou-vier Zaugg, from the provisions of a final judgment of dissolution of marriage. Frederick B. Zaugg, the husband, filed a petition for dissolution of marriage, and alleged a special equity in the parties’ yacht, “Silver Seas,” and in the marital home, both of which were held by husband and wife as tenants by the entireties. The wife answered and filed a counter-petition for dissolution of marriage, denying the husband’s claims for special equities in the yacht and the home, and seeking an award of the home as lump sum alimony, or in the alternative, partition of the property. She also sought alimony, attorneys fees and costs, a special equity in the husband's medical practice and restoration of her former name.

The facts show that the parties were married for approximately fourteen years. The marriage was the second one for both parties. No children were born of this marriage. The husband is 57 years old and is a practicing dermatologist who had a gross income of $56,241.00 in 1976. He is now earning approximately $2,400.00 per month. The wife is 48 years old and has a twelfth grade education. She assisted the husband in his medical practice for several years without compensation, and later worked as an insurance adjustor until she sustained a low back injury in January, 1976. At the time of the dissolution proceeding, she was employed as an insurance adjustor in the risk management department of a local hospital on a part time basis. She earns $8,000.00 per year. Her position with the hospital is not a secure one due to her inability to work full time as a result of her injury. The parties have no assets other than the marital home and the yacht.

After the final hearing, a final judgment of dissolution of marriage was entered. In the judgment, the court awarded the wife lump sum alimony in the amount of $5,200.00 payable in weekly installments of $100.00. The court failed to find a special equity in the marital home and left the parties as tenants in common. The court awarded the husband a special equity in the yacht and ordered the wife to transfer her interest in it, to the husband. The wife’s claim for a special equity in the husband’s medical practice was denied. On this appeal from the final judgment, the wife has raised several meritorious points for our consideration.

The wife’s first point is that the court erred in failing to award her either permanent or rehabilitative alimony. We agree. Based on the evidence presented in the record in this case, including such factors as the wife’s age, her health, her educational background, the extent of her ability to be self-supporting and the length of the marriage, we find that an award of rehabilitative alimony was required. Therefore, we reverse the lump sum alimony award, and we hold that the wife is entitled to rehabilitative alimony in the amount of $100.00 per week for three years, which is consistent with the wife’s needs and the husband’s ability to pay.

The wife next contends that the court erred in awarding the husband a special equity in the parties’ yacht. The record contains evidence that the yacht was purchased solely with the husband’s funds, some of which his family gave or loaned him, some from an inheritance he received and the remainder from the proceeds of the sale of the boat which he previously solely owned.

Before the Florida Supreme Court rendered its opinion in Ball v. Ball, 335 So.2d 5 (Fla.1976), the use of the husband’s separate funds to acquire property held as tenants by the entireties resulted in the presumption of a gift to the wife. In Ball v. Ball, the necessity for the presumption of a gift was eliminated and it was ruled that where record title to real property is held by the entireties, equal division of the property is the starting point for property division. However, either spouse has the right to establish a special equity in the property where, for example, “. . . all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship.” Ball v. Ball, supra, page 7. In such cases, the court continued, the property should be awarded to that spouse in the absence of contrary evidence that a gift was intended. The Court limited the application of the Ball decision to dissolution proceedings instituted after the date that opinion became final.

Dr. Zaugg’s petition for dissolution of marriage was filed before the Ball decision became final. Thus, applying the law which was in effect previously, which presumed a gift to the wife, the record shows that although the husband did not rebut the presumption of a gift to the wife, he did show special circumstances which justify the award of a special equity in the yacht to him. See Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971). Therefore, we affirm the trial court on this point.

The remaining four points on appeal are that the court erred in failing to grant the wife a special equity in the husband’s medical practice, in failing to partition the marital home, in failing to restore the wife’s former name and in failing to award the wife the costs incurred in defending the dissolution of marriage action. Having considered each point in light of the briefs, the record and argument of counsel, we find no error in the trial court’s failure to award the wife a special equity in the husband’s medical practice. Nor do we find error in the failure to award the wife’s costs as that point is now moot. However, we are of the opinion that the court did err in failing to partition the home as requested by the wife in her pleadings, see Singer v. Singer, 262 So.2d 731 (Fla. 3d DCA 1972), and in failing to restore the wife’s former name. Therefore, we remand the cause to the trial court for modification of the final judgment, ordering partition of the home, restoring the wife’s former name and awarding rehabilitative alimony to the wife in the amount, and for the period of time herein provided.

Affirmed in part, reversed in part and remanded with directions.

KEHOE, J., dissents.


text:
    Anthony Ozer JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. HH-86.
    District Court of Appeal of Florida, First District.
    March 15, 1978.
    Rehearing Denied April 17, 1978.

      Michael Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Sheyin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of the judgment and sentence for escape, Section 944.40, Florida Statutes (1975). Appellant contends he is entitled to reversal because of an alleged variance between the gravamen of the information and the evidence adduced at trial.

The information alleged that appellant “was lawfully confined in the Alachua County Adult Detention Center, . and being then and there so confined, did unlawfully escape from such confinement, . .” The evidence revealed that appellant was arrested and taken to the Ala-chua County Adult Detention Center. During the booking process, appellant apparently became ill and was escorted by a police officer to the emergency room of Alachua General Hospital for treatment. Appellant escaped while at the hospital. Appellant asserts there is a fatal variance because the evidence did not reveal that appellant escaped from the confinement of the Alachua County Adult Detention Center.

Section 944.40, Florida Statutes (1975), provides:

“Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony-of the second degree, . . . ”

We do not believe the term “confinement” is narrowly limited to the actual physical presence in the jail. Appellant had been committed to the jail and was in the lawful custody of the jail. This confinement may extend to the hospital from which appellant escaped. Although Sections 945.091 and 951.24, Florida Statutes (1975), specifically recognize that a prisoner may be regarded as “confined” even though not physically present in the correctional facility for the purposes of work-release programs and other rehabilitative purposes, the existence of these statutes does not require a narrow definition of the term “confinement.”

Accordingly, there was no fatal variance between the information and the evidence adduced at trial. Therefore, the judgment and sentence are AFFIRMED.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: LETTS, Judge.

text:
    AMERICAN HEALTH ASSOCIATION, INC., a Florida Corporation, and William H. Zibell, Appellants, v. Herbert HELPRIN, an Individual, Health Association of Pembroke Pines, Inc., a Florida Corporation, and Lee Stuart, an Individual, Appellees.
    No. 77-2010.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1978.

      Coleman R. Rosenfield of Graham, Hodge, Swan & Larson, Fort Lauderdale, for appellants.
    Kim Douglas Sherman of Edwards, Dub-ner, Sherman & Rayson, Fort Lauderdale, for appellees Helprin and Health Association of Pembroke Pines, Inc.
   LETTS, Judge.

The opinion filed Febuary 21, 1978, is herewith withdrawn.

The ruling of the trial court denying the motion to dismiss, filed by the appellant at the trial level, is affirmed.

The basis for said motion was that the trial court lacked jurisdiction over the person, because the disputed contract contained a clause for arbitration prior to any lawsuit. The appellee below argued that even if such were so, the right to arbitration had been waived by the conduct of the appellant.

We do not believe we can reach the merits of this cause. The appellants contend that Fla.App. Rule 4.2 permits interlocutory appeals from pre-trial orders relating to jurisdiction over the person. That is correct, but we disagree that the denial of the instant motion to dismiss was such an ap-pealable order.

To us, jurisdiction over the person, for example, refers to service of process, or the applicability of the long arm statute to non-residents. Paradis v. Cicero, 167 So.2d 248 (Fla. 2d DCA 1964). In the case at bar, we perceive the problem to be one of jurisdiction over the subject matter, not reviewable by interlocutory proceeding.

It is true that we could treat this matter as one of common law certiorari, but we believe that there is full, adequate and complete remedy available after final judgment in this case. Siegal v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975). It would be both convenient and saving of costly, protracted and possibly useless litigation, if we were to agree to review all rulings of trial judges as they occur. However, such is impractical when one considers the resulting logistics of such a course, coupled with those who would immediately subvert it for dilatory purposes.

THE APPEAL IS DISMISSED.

ALDERMAN, C. J., and CROSS, J., concur.

      . Although harmless in the light of our conclusion, Article VIII of the contract allegedly containing the arbitration clause was not included in the record on appeal. Thus, we certainly could not have interpreted same.