text:
    Claude HARRIS, Jr. v. STATE.
    6 Div. 802.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.

      John A. Bivens, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and John Gibbs, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to rob; sentence: twenty years imprisonment.

Lois Spencer, victim of the assault, testified that she was employed at the University Cleaners in Tuscaloosa, Alabama, on November 28,1977. Approximately 9:30 a. m., two black males, appellant and a companion, entered the cleaners and asked her for clothes belonging to one Hines. She was unable to find the clothes under that name, and the two men left ostensibly to look elsewhere. Around 11:30 a. m. the two returned to find Lois Spencer in the company of a gentleman friend who was sitting in the cleaners chatting with her. The two men looked at Ms. Spencer and her friend, stated they had not found the clothes and departed. Again at 1:30 p. m. the men returned, demanding the clothes. Appellant stood holding the door, and as Lois Spencer turned to look again, appellant’s companion jumped over the counter, knocked her to the floor and pulled a knife on her. As he held the knife over her, appellant shouted repeatedly from the door, “Kill her, kill her.” Ms. Spencer told the men to take the money from the register and begged them not to kill her. Ms. Spencer next heard the door open, and then heard a gunshot fired. Her attacker fled and she crawled to safety. She stated neither assailant ever mentioned money, that appellant did not go behind the counter until after she heard the door open, and that at the time the assault occurred she did not think their actions were aimed at robbery, but rather at killing her.

Mr. Marion A. Watkins testified that on November 28, 1977, he was visiting his sister who lived next door to University Cleaners. He observed two black males in his sister’s front yard walking around looking at the cleaners. They walked behind the cleaners, then returned to the front and entered the cleaners. Mr. Watkins followed them to the cleaners and heard a woman screaming and one of the men yelling “Kill her, kill her.” He entered the door and observed appellant going between an opening in the counter. He testified appellant stopped right behind the cash register and turned toward him. Upon seeing Mr. Watkins, appellant began using himself as a shield between Watkins, his companion and Ms. Spencer. Watkins shouted at the companion to drop his knife, then took a gun from his coat and fired over the companion’s head. Appellant’s companion fled, and Mr. Watkins held appellant at gun point until the police arrived to take him into custody.

Watkins testified appellant neither opened nor touched the cash register. He did not hear anyone ask for money.

The defense rested without putting on any evidence.

Appellant presents but one issue for review, that being whether the State failed to make out a prima facie case of assault with intent to rob. He argues the State failed to show the specific felonious intent to rob necessary to sustain a conviction under § 13-1-46, Code of Ala. 1975.

To sustain a conviction under this statute, the State must prove a specific felonious intent to rob. If the specific intent to rob is not shown to be present, though a general or another specific felonious intent is shown, the evidence is not sufficient to sustain a conviction under the aggravated offense of assault with intent to rob. If the intent is to maim, or to ravish, or other of the designated felonies, there can be no conviction of intent to rob. Simpson v. State, 59 Ala. 1 (1877).

The required intent must be proven as a matter of fact. The jury may determine its existence from all the facts and circumstances in evidence, including circumstantial evidence alone. Simpson, supra; White v. State, 294 Ala. 265, 314 So.2d 857 (1975), cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). Intent can only be shown, however, by facts and circumstances from which the jury is authorized to draw such an inference. Bridges v. State, 56 Ala.App. 411, 321 So.2d 749 (1975). Whether there is sufficient legal evidence to give rise to the inference is a question of law for the court; its weight and probative value are questions for the jury. Bridges, supra; Bridges v. State, Ala.Cr.App., 340 So.2d 1137 (1976).

Only circumstantial evidence of appellant’s intent to rob Ms. Spencer was presented in the instant case. There was concrete evidence presented of the assault itself, yet the intent to rob accompanying the assault can only be garnered from the circumstances surrounding the assault. That money or robbery ever was or was to become the focus of the assault can only be inferred from the circumstances collateral to the incident. The evidence more strongly suggests an assault with intent to murder, however, this does not preclude a finding of guilt of the crime charged if the evidence and natural inferences drawn therefrom indicate an intent to rob.

Circumstantial evidence sufficient to sustain a conviction must be an “inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts.” White, supra. The evidence suggests that the appellant and his companion were “casing” the cleaners on their visits prior to the assault. This is a common occurrence in robberies which is generally known by the average citizen. A jury could logically infer that the third visit when the clerk was alone was for the purpose of robbing that commercial business establishment. Such an inference is bolstered by the fact that the appellant went behind the counter and directly to the cash register even though he had not attempted to open it at the time Mr. Watkins interrupted their activity. We cannot say that the circumstantial evidence surrounding the assault which sustained the jury’s finding of an intent to job is insufficient as a matter of law. Though the question is close, we hold that the standards of reason and common experience applied to circumstantial evidence uphold the jury’s verdict.

We have reviewed the grounds for reversal relied upon by appellant in light of the record and the briefs and find no prejudicial error to the substantial rights of appellant which would mandate a retrial of this cause.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SIMMONS, Retired Circuit Judge.

license: Public Domain

text:
    Donald Ross TRONE v. STATE.
    6 Div. 852.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.

      John H. England, Jr., Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant was convicted of robbery. The trial judge fixed punishment at twenty-five years imprisonment in the penitentiary.

The term of punishment was authorized by § 13-3-110, Code of Ala.1975, which ' reads:

“Any person who is convicted of robbery shall be punished by imprisonment in the penitentiary for not less than 10 years, or as otherwise specified by law.”

The court, not the jury, was mandated to fix the term of service in the penitentiary. Section 15-18-20, Code of Ala.1975. We quote this section:

“When an offense is punishable by imprisonment in the penitentiary or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury.”

Appellant asserts in his motion for a new trial as follows:

“1. The verdict of the jury was contrary to law.
“6. An error of law occurred at trial when Defendant’s punishment was fixed by the Court rather than by the jury.”

Ground 1, supra, fails to point out specifically wherein the verdict of the jury was contrary to law. Such specifications are mandated by the Alabama Supreme Court in Little v. Peevy, 238 Ala. 106, 189 So. 720(12).

Appellant’s contention here is that the statute, supra, due to an absence of a maximum annual time limit of imprisonment, violates the “cruel and unusual” punishment provision of the Eighth Amendment to the Constitution of the United States.

We hold that this contention of such constitutional violation is without merit. The provisions against cruel and unusual punishment have no application in the instant case.

This court held in Messelt v. State, Ala.Cr.App., 351 So.2d 636(7-9), as follows:

“ . . . Where the punishment prescribed by the Legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment. Cabble v. State, 347 So.2d 546, (Ala.Cr.App.); Smith v. United States, 273 F.2d 462, 467-468 (10th Cir.); 24B C.J.S. Criminal Law § 1984.”

We see no violation of the Fourteenth Amendment to the United States Constitution as appellant also asserts. The defendant was fairly tried. The punishment imposed was within the limits fixed by law. The spread between the minimum term of ten years and the maximum of life imprisonment (§ 15-18-23, Code of Ala. 1975) gives the trial court an opportunity to fix appropriate punishment relevant to the character of the offense and defendant’s prior record; and also to deter other like offense. Such punishment is not discrimination nor violative of due process.

Appellant in his brief says that there are no guidelines or limitations to be followed in determining whether a convicted robber will be sentenced to twenty-five years or even life. He says that such fixation may be overturned upon abuse of discretion, but he adds that there are no guidelines which may be followed in determining abuse of discretion.

Our answer in the instant case is that the punishment was addressed to the good judgment and common sense of the trial judge. We will not disturb his judgment because we think he acted with prudence and was free of any abuse of discretion. It is true that in making this judgment, we too have no guidelines to follow except our judicial sense of fairness. The administration of justice is the product of human equation.

We note in appellant’s brief the following:

“ . . .We submit that when punishment for an offense may be life imprisonment the determination of the term of confinement is better placed within the discretion of the jury rather than to total discretion of one man motivated by human prejudices and social and political pressures. The foregoing is clearly substantiated by the statement of the trial judge at the close of this case. The trial judge had this to say:.
“ ‘. . . This business of these robberies of these stores has gotten to be almost a nightly occurrence, and I’m not blaming Mr. Troné for that fact, but something has to be done. The only way I know to do is to mete out a sufficient punishment . we have to impose a stiff sentence; otherwise we will be in a state of anarchy. Practically every night we have an armed robbery in this town. . .

It appears that the court in fixing punishment was motivated by a desire to protect the public against robberies and to deter such criminal activities.

To say that fixation of punishment would be better if placed within the discretion of a jury rather than one man is pure speculation and devoid of factual basis. Punishment in federal criminal violations is placed almost exclusively in the hands of the judges — not the juries.

As stated above, we fail to see that appellant’s rights under the Fourteenth Amendment to the United States Constitution have been violated. As we read the record, the punishment was fair and timely administered.

The judgment is therefore affirmed.

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

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Leonard VASSER v. STATE.
    6 Div. 900.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.

      Murray P. Stovall, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

Appellant was convicted of burglary of a motor vehicle and sentenced to imprisonment for four years, in accordance with Ala.Code 1975, § 13-2-42.

Appellant urges that the evidence was insufficient to support the verdict. He does not question the fact that there was substantial evidence that the particular automobile was broken into and entered and that a knife was stolen therefrom, but he says there is’ no evidence to show that the knife, or a similar knife, was -in the possession of defendant soon after the burglary.

While James Hogeland, a security guard for Cooper Green Hospital, in Jefferson County, had parked his automobile at the hospital on March 19, 1978, it was broken into and entered and Mr. Hogeland’s knife was taken therefrom. About 5:30 P.M., after the automobile had been broken into and entered and the knife taken therefrom, Mr. Hogeland saw the knife in the possession of a Birmingham police officer at the Security Office of the Hospital. His testimony was as follows:

“Q Who all was present when you saw this other — your pocket knife?
“A Officer Boykin and I believe Officer Moon, I am not sure which one of the officers had it.
“Q But a Birmingham police officer but you are not sure which one?
“A Yes, sir.
“Q Who showed you the knife?
“A A Birmingham police officer took it out from under his belt.”

Officer Randall Pate, of the Birmingham Police Department, testified that about 5:30 P.M. on March 19, 1978, he observed a security officer of the Cooper Green Hospital was pursuing defendant as defendant ran inside the Children’s Hospital. The witness took part in the arrest of defendant and testified further as follows:

“Q While you were there did you have occasion to see a pocket knife?
“A Yes, sir.
“Q Where did you first see a pocket knife, please?
“A We were escorting him out of the hospital and I was searching him as we were doing so, I took it out of his pocket. “Q Which pocket did you take it out of, if you recall?
“A I really don’t recall which pocket I took it out of.
“Q When you say you showed it to the security guard, was it Mr. Hogeland or Mr. Boykins?
“A Mr. Hogeland.”

As indicated above, the testimony shows that the particular knife taken from Mr. Hogeland’s automobile was in the possession of defendant soon after the burglary, and appellant’s contention on the point is not well taken. There was other circumstantial evidence of defendant’s guilt. The defendant’s motion to exclude the evidence was properly overruled and defendant’s requested affirmative charge in his favor was properly refused.

The State made an aborted effort to show that fingerprints lifted from the automobile matched the fingerprints of defendant. In attempting to do so it called an officer as a witness to testify as to fingerprints made by him of defendant at the city jail in February, 1978, after defendant was arrested and confined in the jail for a crime unrelated to the alleged crime in this case. Counsel for defendant strenuously objected to such testimony and cited in support of his objection the opinion of this Court in Orum v. State, 46 Ala.App. 543, 245 So.2d 829, writ denied, 286 Ala. 679, 245 So.2d 831 (1971).

In Orum v. State, supra, it was held that an official detention of a suspect for the sole purpose of obtaining fingerprints is inhibited by the Fourth Amendment and that fingerprinting evidence so obtained is not admissible in evidence. The case before us is clearly distinguishable from Orum. In Orum there had been no arrest; in the instant case an arrest had been made.

Appellant now complains that the admission of the evidence of the officer who testified as to the February fingerprints was in violation of the exclusionary rule as to evidence of other crimes. This was not a ground of the objection made in the trial court. Even so, the evidence at the time of the objection was not subject to an objection on the ground now urged. It is clear that the evidence pertained to the identity of defendant and constituted an exception to the general exclusionary rule. Such exception to the general rule has recently been splendidly treated by Judge Harris, now presiding Judge Harris, in Breen v. State, Ala.Cr.App., 349 So.2d 113 (1977).

Another officer of the Birmingham Police Department testified that she lifted fingerprints from the burglarized automobile the day of and soon after the burglary. She was examined and cross-examined at length. After she was excused as a witness and after the jury was excused for lunch, there was a conference among the trial judge and attorneys for the parties, in which it developed that by reason of the uncertainty of the witness as to the identity of the person whose fingerprints he had taken while defendant was in jail in February, the State did not plan to attempt to show that the fingerprints taken in February matched the fingerprints lifted from the burglarized automobile. It further developed that no fingerprints had been taken of the defendant subsequent to his arrest in the instant case. At the request of State’s counsel, the court stated that when the defendant went back to jail at the noon recess, “I am going to let them take his fingerprints,” for the purpose of comparison by a fingerprint expert with the fingerprints taken from the burglarized automobile.

Upon return from the noon recess, counsel for the State made it known to the court that defendant refused to be fingerprinted. The trial of the case then proceedéd through the completion of the evidence without any further reference to fingerprints in the presence of the jury.

Among the written charges given at the request of defendant was the following:

“X The Court charges the jury that you cannot consider any evidence as to the fingerprints testified by the state’s witness.”

The fiasco of the State’s effort to show a matching of fingerprints of defendant with fingerprints found on the burglarized automobile was unfortunate and resulted in a considerable loss of time in the judicial process, but we do not understand that any contention was made on the trial, or that any contention is made now, that the futile effort caused any harm to defendant.

We have found no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOYD, Justice. ENGLAND, Chief Justice,

text:
    STATE of Florida, Appellant, v. George M. ROU, Jr., Appellee.
    No. 50301.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Rehearing Denied Feb. 13, 1979.
    Robert L. Shevin, Atty. Gen., Gary L. Conover and Joe Belitzky, Asst. Attys. Gen., Tallahassee and Stephen L. Boyles, State’s Atty., Palatka, for appellant.
    Ben Daniel, Jr., Ocala, for appellee.
   BOYD, Justice.

An information was filed in the County Court of Marion County charging Marion County Commissioner George M. Rou, Jr. with a criminal violation of Section 112.-313(3), Florida Statutes (1973). It was alleged that Rou used his official position to secure a “special privilege” for Cedric M. Smith, Jr. by locating a public road adjacent to Smith’s property, contrary to the established Marion County road program,- and thereby enhancing the value of Smith’s property. The trial judge dismissed the information and held the statute unconstitutionally vague.

By direct appeal we are asked to review the order of the Court. Section 112.313(3), Florida Statutes (1973), provided:

“No officer or employee of a state agency, or of a county . . . shall use, or attempt to use, his official position to secure special privileges or exemptions for himself or others, except as may be otherwise provided by law.”

We agree with the court below. The statute is unconstitutionally vague and leaves its enforcement to the whims of prosecutors. It does not “conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” State v. Lindsay, 284 So.2d 377, 379 (Fla.1973). The terms “special privileges or exemptions” afford one no guidelines, no “ascertainable standard of guilt,” Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947), no barometer by which a public official may measure his specific conduct.

In this instance, a penalty is sought to be imposed against the accused County Commissioner by virtue of his having placed a public road contiguous to certain private property resulting in improvement to the owner of said property. It is a customary duty of County Commissioners to make determinations relating to construction of new roads and improvement of old ones. In making such determinations certain private owners are benefited instead of others. To say that such decisions are criminal in nature is incredible and justifies the conclusion of many highly qualified citizens to refuse to serve in public office.

It is argued that the prosecution must prove beyond a reasonable doubt that the officeholder acted with a specific intent of benefiting himself or another in derogation or disregard of the general public welfare. But this is an after-the-fact determination. An adjudication of not guilty may clear the name of the official charged with the ethical violation, but it cannot undo the harm inflicted upon him and his career by such a charge. The public official must be able to gauge his actions against a specific code of conduct, not a loosely worded statement of public policy, no matter how desirable the goal. Clearly such standards can be defined and should be embraced in the body of the law.

But to impose punishment under this statute violates the very fundamental precepts of due process. The order of the trial court is affirmed.

It is so ordered.

ADKINS, OVERTON and HATCHETT, JJ., concur.

ENGLAND, C. J., dissents with an opinion, with which SUNDBERG and ALDERMAN, JJ., concur.

ENGLAND, Chief Justice,

dissenting.

Both parties agree on the standard for determining whether the statute is unconstitutionally vague; that is, whether its language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. See Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). They disagree as to the application of that standard to the phrase “special privilege.” The state contends that a “special privilege” is commonly understood to be a benefit or advantage given to one person which is not made available to other citizens. Rou contends that the phrase, if so understood, would encompass virtually all decisions made by an elected public official where more than one choice is available, so that the statute inadequately identifies the class of benefits which are proscribed as opposed to those which are permitted.

As will be seen, Rou’s contention suggests that Section 112.313(3) may be ill-suited to achieve the legislative goal. It does not, however, demonstrate that the legislative proscription has made the statute impermis-sibly vague. The term “special privilege,” as used in the context of the state’s code of conduct for public officers, has a meaning which is readily apparent to a person of common understanding. Viewed in their plain and ordinary sense the words of the statute “give reasonable notice that a person’s conduct is restricted by the statute.” The words themselves are simple enough and contain no inherent complexities or ambiguities. Webster’s Dictionary defines “special privilege” as a “privilege granted . to an individual or group to the exclusion of others and in derogation of common right.” Black’s Law Dictionary explains that a “privilege” is a “particular and peculiar benefit or advantage enjoyed by a person . . . beyond the common advantages of other citizens.” No mystery, then, surrounds the vocabulary used by the legislature. In fact, the United States Supreme Court offered essentially the same sense to this precise term as long ago as 1913 in Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 115, 33 S.Ct. 967, 57 L.Ed. 1410 (1913), where it quoted with approval the definition of the Supreme Court of Nebraska in City of Plattsmouth v. Nebraska Telephone Co., 80 Neb. 460, 464, 114 N.W. 588, 590 (1908):

“[A] privilege granted to, or vested in, a person or class of persons, to the exclusion of others and in derogation of common right. . . . ”

I would hold that this subsection of the state’s ethics code is not vague, and that the statute proscribes the use of governmental office to bestow benefits in furtherance of a private goal and without regard to the public welfare, or despite it.

Since conduct proscribed under the 1973 statute would result in a criminal prosecution (a violation would be a misdemeanor) and necessarily implicate the officeholder’s state of mind, the prosecution must prove beyond a reasonable doubt that the officeholder acted with a specific intent of benefiting himself or another in derogation or disregard of the general public welfare. It would not be sufficient for the state to prove that a single person was aided or bettered, for public officeholders may and should advance the common weal through acts favoring individuals (such as those who are oppressed or underrepresented). These favored acts occur not only in judicial and quasi-judicial proceedings, where individual claims always compete for governmental approval, but also in legislative and quasi-legislative settings, such as Rou’s. It is for that reason that acts performed in good faith toward a general public goal are not proscribed by this statute any more than perversions of governmental power through incompetence. Intent is imperative to demonstrate criminal conduct.

SUNDBERG and ALDERMAN, JJ., concur.

      . We have jurisdiction under Art. V, § 3(b)(1), Fla.Const.

      . Ch. 112, Part III, Fla.Stat. (1973). As to the basis for more recent provisions of the code, see Article III, Section 18, Florida Constitution, and Goldtrap v. Askew, 334 So.2d 20 (Fla.1976).

        . American Bankers Life Assurance Co. v. Williams, 212 So.2d 777 (Fla. 1st DCA 1968). Contrast State v. Wershow, 343 So.2d 605 (Fla.1977), in which no common meaning could be found to sustain the term “malpractice in office.”

      . State v. Lindsay, 284 So.2d 377, 379 (Fla.1973).

      . Contrast State v. Llopis, 257 So.2d 17 (Fla.1971).

      . Webster’s Third New International Dictionary 2186 (1968).

      . Black’s Law Dictionary 1359 (4th ed. 1968).

      . § 112.317, Fla.Stat. (1973).

      . Legislators, for example, quite properly introduce bills of all types to secure privileges or exemptions for others.

      .Contrast the need for external references to fix standards of impropriety, rather than individual intent, which doomed Section 112.-313(1), Florida Statutes (1973). D’Alemberte v. Anderson, 349 So.2d 164 (Fla.1977).


author: PER CURIAM.

text:
    William Horace SHUE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 51235.
    Supreme Court of Florida.
    Dec. 7, 1978.

      Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The appellant was tried before a jury and convicted of two counts of sexual battery, committed upon two girls eleven years of age or younger in violation of Section 794.-011(2), Florida Statutes. The Court is here reviewing the conviction and the imposition of a sentence of death by electrocution. Our jurisdiction is authorized by Article V, Section 3(b)(1), Florida Constitution.

On Thursday, June 12, 1975, at approximately seven o’clock, P.M., the two victims, of the crimes charged in this case, then being eleven and nine years old, were walking along a footpath in a wooded area near their home in Marion County. As they emerged from the woods to proceed towards home along a roadway, they were accosted by a man who ordered them back into the wooded area and raped them both.

Appellant was positively identified at trial by one of the girls as their attacker. Corroboration of this was provided by testimony as to the appellant’s identification through photographic, in-person, and voice-identification “lineups.”

The young victims led police investigators to the scene of the crime. Expert testimony established that appellant’s fingerprint was on a piece of cellophane wrapping paper found there. Also found was a piece of paper packaging material linked by reasonable inference to the cellophane, There was evidence from which the jury could infer that the cellophane and the cardboard came from a package of anesthetic ointment that was in the appellant’s possession at the time of the assault. An unopened package of the same product was found in appellant’s home..

The appellant had worn a full beard for months, at least, before the crime, and removed it on the day following. The two girls described their attacker as having had such a beard. When shown at trial the appellant’s driver’s license photograph, in which he was bearded, one of the girls testified that it was a picture of their assailant.

The jury had ample competent evidence upon which to base a verdict of guilty on both counts.

In the sentencing portion of the trial, the court and the jury were presented with testimony as to the appellant’s criminal record. It appears that appellant was convicted in North Carolina in 1968 of indecent exposure to some minor females. In Mississippi in 1972 he was convicted of disorderly conduct based on a complaint of “attempted seduction” of a minor female. In Florida in 1970 he was convicted of arson, and testified that his perpetration of the acts involved there arose out of a dispute with a former employer over unpaid wages. After his arrest for the crimes at issue here, he escaped from the Marion County jail, and in 1976 was convicted in Iowa of the crime of rape.

There was also testimony concerning the appellant’s upbringing, family background, and social life. His childhood, as it was described, was one of brutality and deprivation. His older sister testified that she was repeatedly abused and sexually assaulted during childhood by their father.

The jury recommended that the appellant be sentenced to life imprisonment. Contrary to the recommendation the judge imposed death as the sentence. He found that two of the aggravating circumstances listed in our capital felony sentencing law, Section 921.141, Florida Statutes, were present: that the appellant had previously been convicted of a felony involving violence or the threat of violence, and that the rapes were especially heinous, atrocious, and cruel. He found further that there were no mitigating circumstances.

The appellant contends that the sentence imposed upon him for these crimes violates the guarantee of the Eighth Amendment to the United States Constitution against cruel and unusual punishment. He argues that the decision of the United States Supreme Court in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), stands for the proposition that a punishment of death for the crime of rape where there has been no taking of human life is disproportionate to the crime and therefore unconstitutional. .The Court held that the death penalty under such circumstances is grossly disproportionate and excessive punishment, but limited its holding to the facts of that case in which the victim was an adult woman. The opinion of the Court placed great emphasis, however, on the recent national trend away from exacting the ultimate punishment for the crime of rape. Today only Florida and Mississippi have statutes in force authorizing the death penalty for rape, and both States limit its application to the case of rape of a child by an adult.

These recent events evidencing the attitudes of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. Nevertheless, the legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman. Id. at 597, 97 S.Ct. at 2868.

The question of the permissibility of death as the punishment for child rape will, undoubtedly and unfortunately, be presented to this Court again, unless the United States Supreme Court decides it first. We will not decide it now, however, because there are two grounds under our own decisions for vacating appellant’s sentence and ordering a sentence of life imprisonment. The facts do not warrant imposition of a sentence of death in the face of the jury’s recommendation. And under our decision in Purdy v. State, 343 So.2d 4 (Fla.1977), as will be explained below, upholding the death sentence in this case would be to allow cruel and unusual punishment.

In Huckaby v. State, 343 So.2d 29 (Fla.1977), the appellant had been sentenced to deáth for rape of a child under the age of eleven. We concluded that the appellant’s long history of sexual abuse of his daughters demonstrated the'existence of a mental illness which, although not rising to the level of legal insanity, nonetheless showed an impairment of the appellant’s capacity to appreciate the criminality of his conduct. This conclusion and our finding in the record of evidence of extreme emotional disturbance constituted factors in mitigation. Even though the jury recommended a sentence of death, we held that these two mitigating circumstances should have been found and considered by the sentencing judge and that they constituted sufficient ground for ordering the sentence reduced to life imprisonment.

A defendant’s criminal record might be thought to be relevant to sentencing only as an aggravating circumstance. We mention Huckaby only to indicate that there is authority for the proposition that an offender’s history and background may be deemed relevant to the existence of mitigating factors such as that of substantial impairment of capacity to appreciate the criminality of one’s conduct or to conform to the requirements of law. Section 921.141(6)(f), Florida Statutes (1977); cf. Miller v. State, 332 So.2d 65 (Fla.1976) (depriving jury of psychiatric testimony relevant to mitigation rendered death sentence improper).

While appellant’s history here does not approach the extreme character of the appellant’s in Huckaby, which this Court characterized as indicating mental illness, nevertheless his record may have been a factor in the jury’s decision to recommend life imprisonment rather than death. That there was information in evidence providing an arguable basis upon which the jury might have grounded such a recommendation — we cannot know with certainty what its reasons were — becomes significant in light of the decisions of this Court relating to the status and treatment of jury recommendations under the capital felony sentencing statute.

A jury recommendation is to receive great deference, both from the sentencing judge and the reviewing appellate court. McCaskill v. State, 344 So.2d 1276 (Fla.1977); Lamadline v. State, 303 So.2d 17 (Fla.1974). In Tedder v. State, 322 So.2d 908 (Fla.1975), we said:

A jury recommendation under our trifur-cated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.

It is impossible to say that there was no reasonable basis for the jury to have concluded that some mitigating circumstances existed sufficient to outweigh the aggravating circumstances.

The aggravating circumstance, that a capital felony was “especially heinous, atrocious, or cruel,” applies to

those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

State v. Dixon, 283 So.2d 1, 9 (Fla.1973). This principle of our capital felony sentencing law was applied to the felony of child rape in Prudy v. State, 343 So.2d 4 (Fla.1977). There was a finding by the judge that the rape of the seven-year-old victim was especially heinous, atrocious, and cruel. We held, however, that since there was nothing shown to set the crime apart from the normal or typical violation of the statute, to affirm the sentence of death would amount to giving approval to a mandatory sentence of death for every person convicted of this crime. The crime itself is always so reprehensible as to cause outrage, but constitutional principles will not permit the . establishment of a mandatory death sentence. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). As in the present case, there was no showing of extraordinary cruelty or of violence or injury beyond that which is necessarily attendant upon the rape of a child. The sentence was reduced to life imprisonment.

Rape is a loathsome crime anywhere, anytime, against anyone. For centuries under Anglo-American law it has been widely thought to merit the maximum penalty. The rape of children is revolting to the minds of all civilized persons. The people through the Legislature have authorized electrocution for this crime. But with all of the foregoing considerations in mind we find that the imposition of the penalty of death in this case cannot be upheld.

The jury returned two verdicts, finding appellant guilty of two capital felonies. The trial court adjudicated appellant guilty on both counts of the indictment. Then, the jury rendered an advisory sentence of life imprisonment, and the judge imposed a sentence of death. It was the obvious purpose of the jury to spare appellant from the electric chair. Although both jury and judge referred to only one and not two sentences, it was their obvious intent to punish appellant for both crimes.

The judgments of conviction on both counts are affirmed and the cause is remanded to the trial court with directions to vacate the sentence of death and to impose two separate sentences of life imprisonment, in accordance with Section 775.082(1), Florida Statutes (1973).

It is so ordered.

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

       §§ 794.011(2), 775.082(1), 921.141, Fla.Stat. (1977); Miss.Code Ann. § 97-3-65 (Supp.1977). For the opinion of the Supreme Court of Mississippi that the Coker decision leaves a state free to punish by death the rape of a child by an adult, see Upshaw v. State, 350 So.2d 1358 (Miss.1977).


author: HATCHETT, Justice. OVERTON, Justice,

text:
    Reginald C. KENDRY et ux., et al., Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION, Respondents.
    No. 51312.
    Supreme Court of Florida.
    Dec. 7, 1978.
    Gary S. Brooks of Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, for petitioners.
    H. Reynolds Sampson, Gen. Counsel, and Alan E. DeSerio and Jay Beckerman, Tallahassee, for respondents.
   HATCHETT, Justice.

Can a property owner recover severance damages due to the partial taking of his land when the taking is in violation of a restriction contained in a perpetual easement? The Fourth District Court of Appeal answered this question in the negative, contrary to the rule of law announced in City of Tampa v. Texas Co., 107 So.2d 216 (Fla. 2nd DCA 1958). We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution. For the reasons expressed herein, the decision of the Fourth District Court of Appeal is quashed and the cause remanded for further proceedings consistent with this opinion.

Petitioners are four families, each owning a parcel of land bordering on the western shore of the Indian River in Brevard County. Prior to April, 1961, the properties were traversed, north and south, by a two lane highway designated as State Road 4. Petitioners’ homes and businesses were located on the west side of the road. Their boat docks were on the east side, along the shore of the river.

The properties were burdened by an easement to the state allowing it the right to widen State Road 4 along its eastern boundary. There was a restriction in the easement, however, prohibiting the state from increasing the elevation of the road.

In 1961, without offer of compensation, the state widened the highway into a four lane road, and in doing so increased the elevation of the new highway approximately five feet. In 1965, petitioners filed suit for inverse condemnation, alleging that a taking of their property had occurred in three respects: (1) by violation of the easement restriction prohibiting any increase in the elevation of the road; (2) by virtue of rainwater runoff rendering petitioners’ properties unusable; and (3) by elimination of petitioners’ riparian rights. The trial court dismissed the complaint, finding that it failed to state a cause of action. The Fourth District Court of Appeal reversed, stating that when the state raised the elevation of the road, it substantially violated the restriction in the easement imposing an additional burden on the servient estate, which could amount to a taking. Moore v. Choctawhatchee Electric Co-Operative, Inc., 196 So.2d 788 (Fla. 1st DCA 1967); Jarrett Lumber Corp. v. Christopher, 65 Fla. 379, 61 So. 831 (1913); Seaboard Air Line Ry. v. Southern Investment Company, 53 Fla. 832, 44 So. 351 (1907). The district court also found that where construction by the state causes flooding of abutting private property, amounting to a permanent invasion of the land, there is a taking. Finally, the court found that the allegations in the complaint were sufficient to show a complete taking of the riparian rights of petitioners because the state had filled submerged lands in the riverbed east of the boundary line of petitioners’ property. Kendry v. State Road Department, 213 So.2d 23 (Fla. 4th DCA 1968). This court denied certiorari. 222 So.2d 752.

On remand, the trial court conducted a nonjury trial to determine whether a taking had in fact occurred. The trial judge ruled: (1) “[TJhe raise in elevation amounted to a violation of the restrictions in the easement and amounted to a taking of plaintiffs’ property;” (2) “[TJhere had been no taking of the properties of the plaintiff which required the defendant to compensate them under the laws of this state for any damages incurred by the plaintiffs from rainwater . . flowing from plaintiffs’ land by reason of the raising of the height of the new U. S. Highway 1;” and (3) “[TJhere has been no taking of the riparian rights of the plaintiffs inasmuch as the plaintiffs became owners of their property subject to a road easement in favor of the state road department extending 200 feet east of the center line of the then existing road.”

Appeals were taken by both parties and the order of the trial court was affirmed, per curiam, and without opinion. State of Florida, Dept. of Transportation v. Kendry, 283 So.2d 901 (Fla. 4th DCA 1973).

The Department of Transportation then commenced condemnation proceedings. At a pre-trial conference, the property owners stipulated that the value of the property taken by virtue of the violation of the easement was nominal, thereby leaving only the issue of severance damage to be tried. An order was then entered finding that the “compensation, if any, to which the defendants are entitled is the actual damage to the defendant’s property . . . The trial court further found that since the property owners stipulated that the actual damages were nominal, there was no need for trial on the merits. The court denied petitioners’ request for compensation relating to water damage and riparian rights, stating that the previous court order had rendered those issues res judicata.

On appeal, the Fourth District Court affirmed, per curiam, and without opinion. Chief Judge Mager dissented with an opinion citing, inter alia, City of Tampa v. Texas Co., supra.

Article X, Section 6 of the Florida Constitution states:

Section 6. Eminent domain.—
(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.

Thus, when the state, through the exercise of its power of eminent domain, takes private property for public use, the landowner must receive full compensation for his loss. A landowner must also be compensated for damage to his property when the state takes less than an entire parcel. Section 73.071(3)(b), Florida Statutes (1975), specifically provides that where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking may be awarded. These “damages to the remainder” are called “severance damages” and are measured by the reduction in value of the remaining property. City of Tampa v. Texas Co., supra. Where there is no taking, however, there will be no recovery. Although an abutting landowner may suffer consequential damage due to the use of public land made by public authority, such damage is not recoverable. Division of Administration, State of Florida Department of Transportation v. Hillsboro Assoc., Inc., 286 So.2d 578 (Fla. 4th DCA 1973).

Based on this principle, respondents argue that petitioners were not entitled to recovery since improvement of the road was accomplished within the state’s existing easement. No additional land was actually appropriated. This position, however, ignores the" finding of the trial judge in the original inverse condemnation suit, affirmed by the Fourth District Court of Appeal in State of Florida, Dept. of Transportation v. Kendry, supra, that the state’s violation of the restriction contained in the easement amounted to a taking in fact.

The only question we must consider is whether petitioners are entitled to severance damages due to the partial taking of their rights in the property. The trial judge’s order in the condemnation suit states:

At a pre-trial hearing held before me, this Court heard the legal arguments of counsel on behalf of the parties and, therefore, upon being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
1. That Judge Akridge’s Order entered January 26, 1975, renders the Defendants’ request for compensation relating to water damage and riparian rights as res judicata.
2. That the property taken, if any, was the violation of the restrictions in the right-of-way easements (referred to in Judge Akridge’s Order as the Powell & Bottomley easements) located on the eastern half of State Road 4.
3. That the compensation, if any, to which the Defendants are entitled is the actual damage to the Defendants’ property lying between the eastern most boundary of the aforementioned easements and the Indian River.
4. That counsel for the Defendants stipulates that the damage referred to in paragraph 3 hereof is nominal, thus, rendering the need for a trial on the merits as unnecessary.

Respondents urge us to uphold the judge’s order, arguing that the first appellate decision in this case established only that the allegations contained in petitioners’ complaint were sufficient to state a cause of action. In order for petitioners to prevail, those allegations had to be proved by competent substantial evidence. City of Tampa v. Texas Co., supra. In the condemnation proceedings below, petitioners failed to offer any proof on the issue of damages and therefore failed to sustain their burden.

The trial court’s order is not entirely clear on this point. It is our view that the trial judge limited the issue of damages prior to any offers of proof. It is obvious from a reading of petitioners’ pre-trial statements that they intended to establish certain severance damages. Apparently, it was the trial judge’s understanding of the law that petitioners were only entitled to compensation for the actual value of the property right taken, and since petitioners had previously stipulated that such value was nominal, there was no need for a trial on the merits. We disagree. As discussed above, Section 73.071(3)(b) expressly provides that a landowner is entitled to claim severance damages where less than his entire parcel is taken. For a detailed discussion of the nature of those damages, see City of Tampa v. Texas Co., supra.

We recognize that the burden of showing damage to the remainder of a landowner’s property is on the landowner. In this case, however, the landowners were foreclosed from presenting any evidence on this important issue because of the trial judge’s express ruling that “compensation, if any, ... is the actual damage to [petitioners’] property . . . .” We hold that where a portion of a landowner’s property is taken by the state by virtue of its violation of a restriction contained in a perpetual easement, the landowner may, upon sufficient proof, recover those damages to the remainder which were caused by the taking.

Accordingly, the decision of the Fourth District Court affirming the trial court’s order is quashed and the cause remanded for further proceedings consistent with this opinion.

It is so ordered.

ADKINS and BOYD, JJ., and MELVIN, Associate Justice, concur.

OVERTON, J., dissents with an opinion, with which ENGLAND, C. J. and SUNDBERG, J., concur.

OVERTON, Justice,

dissenting.

I emphatically dissent. There is absolutely no conflict between the instant per cu-riam affirmed decision of the Fourth District Court of Appeal and City of Tampa v. Texas Co., 107 So.2d 216 (Fla. 2d DCA 1958).

The lack of conflict is emphasized when the case purported to be in conflict is compared with the instant case. In City of Tampa v. Texas Co., supra, the City, as the condemning authority, had taken a small part of a parcel of property on which a filling station was situated. The erection of signs on the small parcel of land taken from the filling station property did not affect the remainder of the property. The adjacent street was lowered within the existing right-of-way, however, which caused substantial damage to the filling station property. The Second District Court of Appeal held that no recovery would be allowed if the damage was caused by activity upon land other than the land taken by the city. In dicta, the court stated that a property owner could recover severance damages if the improvement which caused the damage was constructed upon both the land taken by government and upon an existing right-of-way.

The property in issue in these proceedings had been the subject of much prior litigation. The District Court of Appeal in Kendry v. State Road Department, 213 So.2d 23 (Fla. 4th DCA 1968), cert. denied, 222 So.2d 752 (Fla.1969), held there was a taking from the petitioners because of the raising of the right-of-way contrary to a restrictive covenant contained in the original grant of the easement, which prohibited changes in the existing grade. Upon remand for inverse condemnation, the trial court, after a hearing and the taking of testimony, held that although petitioners were not entitled to compensation for water damage or an asserted loss of riparian rights, the elevation of the road violated the restrictive easement and amounted to a “taking.” This decision was affirmed in State Department of Transportation v. Kendry, 283 So.2d 901 (Fla. 4th DCA 1973).

The cause now before us was before the trial court on remand from the District Court of Appeal pursuant to that decision to determine the compensation to be paid because of the change of the existing grade. Damages from water runoff or loss of riparian rights were to be excluded. After a pretrial conference, the trial judge issued the following order:

At a pre-trial hearing held before me, this Court heard the legal arguments of counsel on behalf of the parties and, therefore, upon being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED:
1. That Judge Akridge’s Order entered January 26, 1975, renders the Defendants’ request for compensation relating to water damage and riparian rights as res judicata.
2. That the property taken, if any, was the violation of the restrictions in the right-of-way easements (referred to in Judge Akridge’s Order as the Powell & Bottomley easements) located on the eastern half of State Road 4.
3. That the compensation, if any, to which the Defendants are entitled is the actual damage to the Defendants’ property lying between the easternmost boundary of the aforementioned easements and the Indian River.
4. That counsel for the Defendants stipulates that the damage referred to in paragraph 3 hereof is nominal, thus, rendering the need for a trial on the merits as unnecessary.

This is the order that was affirmed per curiam by the District Court of Appeal, Kendry v. Division of Administration, State Department of Administration, 341 So.2d 1012 (Fla. 4th DCA 1977), and is the subject of this action.

The characterization or construction of the order by counsel does not give this Court jurisdiction. Nothing in the order or in the limited record before us reflects that the trial court held that petitioners were not entitled to severance damages resulting from the change of the existing grade. The ruling of the trial judge was clearly based upon the stipulation noted in paragraph 4 of the order. He never ruled on the issues which were the subject of the City of Tampa decision. On appeal, the District Court affirmed without rendering an opinion. In my view, this is merely a second appeal on the merits and an abuse of our conflict jurisdiction. Taking jurisdiction of this type of case under the conflict authority of Article V, Section 3(b)(3), Florida Constitution, has the practical effect of making our jurisdiction under that provision discretionary. I would discharge the writ.

ENGLAND, C. J. and SUNDBERG, J., concur.

      . Kendry v. Division of Administration, State of Florida, Department of Transportation, 341 So.2d 1012 (Fla. 4th DCA 1977).

      . The court distinguished the present case from Bowden v. City of Jacksonville, 52 Fla. 216, 42 So. 394 (1906) and a long line of cases following it which hold that damages suffered by a landowner by reason of a change in grade of an adjoining street are non-recoverable, on the grounds that in this case, the state was bound by contract (restriction) not to change the grade. The Bowden case specifically recognized this exception to the general rule.

      . Section 73.071(3)(b), Fla.Stat. (1975) provides in pertinent part:
      (3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
      (b) Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, . . .

      . Kendry v. State Road Department, supra.

      . Quoting from Orgel, Valuation under Eminent Domain, Vol. 1, page 253, the court stated, at 219:
      “The courts have all recognized that the depreciation in market value of the remainder caused by the physical separation or severance of the part taken is due to the taking and they have held that compensation for this type of injury must be included in damages to the remainder. But they have distinguished these severance damages from the ‘consequential’ damages arising by reason of the use to which the condemner intends to put the part taken.”
      Later, quoting from City of Crookstan v. Erickson, 244 Minn. 321, 69 N.W.2d 909, 912 (1955), the court concluded:
      “Recovery is generally limited solely to the damage caused by the taker’s use of the land acquired from the owner of the remainder area. Stated in another way, the owner of the remainder area is not ordinarily entitled to recover for damage caused his remaining land by the taker’s use of property acquired from adjoining landowners even though his and all property taken from others is used to further the same project.” [At 224.]

      .We find all issues regarding water damage and riparian rights foreclosed and res judicata.


text:
    Verna S. LOVEJOY, Petitioner, v. A. E. ANDERSON, Jr., and John S. Cowdery, Respondents.
    No. 53472.
    Supreme Court of Florida.
    Dec. 7, 1978.
    Neal D. Evans, Jr., Jacksonville, for petitioner.
    Joseph 0. Stroud, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville; and Robert M. Sharp and Bruce S. Bullock, of Bullock, Sharp & Childs, Jacksonville, for respondents.
   PER CURIAM.

Petitioner has asked us to review the decision of the First District Court of Appeal, reported at 354 So.2d. 951, alleging that it is in direct conflict with the decision of the Third District Court of Appeal in Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977). We recently quashed this latter decision. Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978). The conflict of decisions having been dispelled, certiorari is denied.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Melvyn G. GREENSPAHN, Respondent.
    No. 55192.
    Supreme Court of Florida.
    Dec. 7, 1978.

      Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance, for respondent.
   PER CURIAM.

This matter is before the Court on the petition of The Florida Bar for approval of a conditional guilty plea and entry of a final order of discipline. Greenspahn admits that he willfully failed to file income tax returns for the years 1968-1971, and that he was convicted of a criminal misdemeanor for that misconduct. He agrees to be disciplined by a public reprimand, and to pay the administrative costs of this proceeding. The Board of Governors has accepted his conditional guilty plea, and the requirements of Integration Rule 11.13(6)(a) have been complied with fully. We approve the conditional guilty plea, and direct the publication of this opinion in the Southern Reporter as a public reprimand. Greenspahn is directed to pay the costs of this proceeding, in the amount of $100.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. John J. GALLAGHER, Respondent.
    No. 55249.
    Supreme Court of Florida.
    Dec. 7, 1978.
    William D. duFresne, Jr., Bar Counsel, Miami, and Anita F. Dahlquist and James P. Hollaway, Asst. Staff Counsels, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On October 9, 1978, The Florida Bar filed its Petition alleging:

“1. On May 12, 1978, counsel for The Florida Bar filed a complaint charging respondent with violating Disciplinary Rules 6-101(A)(l), 6-101(A)(2), 6-101(A)(3), 7-101(A)(2) and 7-101(A)(3) of the Code of Professional Responsibility of The Florida Bar.
“2. On May 26, 1978, respondent executed a conditional guilty plea in which he admitted violating Disciplinary Rules 6-101(A)(l), 6-101(A)(2), 6-101(A)(3), 7-101(A)(2) and 7-101(A)(3) in that he accepted representation of a client with the knowledge that he was neither qualified nor competent to handle her maritime personal injury claim, and he took no substantial steps thereafter to become qualified in the area through study and investigation. Respondent neglected to timely file suit on the client’s behalf, and the claim was barred by the applicable statute of limitations.
“3. On September 26, 1978, the Executive Committee of the Board of Governors of The Florida Bar approved the Conditional Guilty Plea for Consent Judgment subject to this Court’s .approval.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, John J. Gallagher, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $292.10 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re RULES OF SUMMARY PROCEDURE.
    No. 53496.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Morton L. Abram, President, Conference of County Court Judges, Fort Lauderdale; Carven D. Angel, Chairman, Civil Rules and Law Reform Committee, Conference of County Court Judges, Ocala; Robert F. Williams, Florida Legal Services, Inc., Tallahassee; and Peggy Fisher and Pete M. Siegel, Legal Services of Greater Miami, Perrine; and Fred W. Baggett of Roberts, Miller, Baggett, LaFaee, Richard and Wiser, for Florida Association of Court Clerks, Tallahassee.
   PER CURIAM.

Appended to this order are amended rules which govern all proceedings within their scope on or after 12:01 a. m., January 1, 1979.

All conflicting rules and statutes are hereby superseded, and any statute not superseded shall remain in effect as a rule promulgated by the Supreme Court.

The committee notes are not adopted by the Court.

It is so ordered.

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

Rule 7.010(b). Scope.

These rules are applicable to all actions at law of a civil nature in the County Courts in which the demand or value of property involved does not exceed $1,500 exclusive of costs, interest, and attorney’s fees; if there is a difference between the time period prescribed by these rules and by Section 51.011, Florida Statutes, the statutory provision shall govern.
Note: The addition to (b) is designed to eliminate confusion caused by denomination of Section 51.011, Florida Statutes, as “Summary Procedure.”

Rule 7.020. Applicability of Rules of Civil Procedure.

Florida Rules of Civil Procedure 1.090(a), (b), and (c); 1.190(e); 1.210(b); 1.260; 1.410 and 1.560 are applicable in all actions covered by these rules.
Any party represented by an attorney is subject to discovery pursuant to Florida Rules of Civil Procedure 1.280-1.370 directed at said party, without order of court. Should a party proceeding without an attorney direct discovery to a party represented by an attorney, the represented party may also utilize discovery pursuant to the above mentioned rules without leave of court. Where a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280-1.370, the opposing party shall not be entitled to initiate such discovery without leave of court. However, the time for such discovery procedures may be prescribed by the court.
In any particular action, the court may order that action to proceed under one or more additional Rules of Civil Procedure on application of any party or the stipulation of all parties on the court’s own motion.
Note: These proposed amendments would help prevent overreaching and the ability of one party to obtain judgment without giving the court the full opportunity to consider the merits of the case. Where attorneys are involved, it would preserve the ability of the parties to fully develop their cases.

Rule 7.060. Process.

A summons entitled Notice to Appear stating the time and place of hearing shall be served on the defendant. The summons or notice to appear shall inform the defendant, in a separate paragraph containing bold type, of his right of venue. This paragraph on venue shall read:
Right to Venue. You have the right to require that this action be heard only in the county where one or more defendants reside, where the cause of action accrued, where the property involved is located, or, if a secured promissory note, the county where payment is received. If this case has been brought in a county other than one of the above and you wish to have the case tried in one of the above counties, you may do so by orally requesting the change at the time and date scheduled for you to appear or by making written request in advance of that date. The written request must include the case number and be sent to the Court; a copy must be mailed to the plaintiff or plaintiff’s attorney, if any, and any other defendants or their attorneys, if any. A copy of the statement of claim shall be served with said notice.

Rule 7.070. Method of Service of Process.

Service of process shall be effected as provided by law, or as provided by Florida Rules of Civil Procedure 1.070. Constructive service or substituted service of process may be effected as provided by law. Service of process may also be effected by registered mail, return receipt signed by the defendant, the cost of which is in addition to the filing fee. Note: Present rule provides for certified or registered mail. Certified mail has not been satisfactory since the Post Office does not deliver to the defendant in all cases.

Rule 7.110(e). Failure to Prosecute.

All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of six months shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party before the hearing on the motion shows good cause in writing why the action should remain pending.
Note: New portion underlined. Former rule provided for one year.

Rule 7.150. Jury Trials.

Jury trials may be had upon written demand of the plaintiff at the time of the commencement of his suit, or by the defendant within five days after service of notice of suit or at pre-trial conference, if any, by depositing with the clerk such sum as the judge may fix as reasonable to secure the payment of cost incurred by reason of a jury trial, or otherwise jury trial shall be deemed waived. The cost of summoning and paying the jurors may be taxed as costs in the case.

Rule 7.170(a). Default.

If defendant does not appear at the scheduled time, the plaintiff is entitled to a default to be entered by either the judge or clerk. No such default shall be entered without the sworn statement of the plaintiff or plaintiff’s attorney that the action has been brought in a county in which venue is proper, pursuant to Chapter 47, Florida Statutes.

Rule 7.210(c). Execution.

When judgment is entered and execution stayed pending payments, if the judgment debtor fails to pay the installment payments, the judgment creditor may have execution without further notice for the unpaid amount of the judgment upon filing an affidavit of the amount due. Note: New portion of rule underlined.


text:
    In re TRAFFIC COURT RULES 6.010, 6.040, 6.060, 6.130, 6.156, 6.270, 6.290, 6.310, 6.320, 6.470 and 6.560.
    No. 46571-K.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Richard E. Cox, Executive Secretary of the Traffic Court Review Committee, for petitioner.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, Rules 6.010, 6.040, 6.060, 6.130, 6.156, 6.270, 6.290, 6.310, 6.320, 6.470 and 6.560 of the Florida Rules of Practice and Procedure for Traffic Courts are amended in the manner as appended to this opinion and said rules are hereby adopted. These amendments shall be effective immediately.

It is so ordered.

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

APPENDIX

I. SCOPE, PURPOSE AND CONSTRUCTION, AND TRANSITION

Rule 6.010. Scope

(a) These Rules govern practice and procedure in any traffic case and specifically apply to practice and procedure in County Courts. The provisions of these rules apply in Circuit Courts to all cases concerning juvenile traffic offenders.

(c) The rules under Part IV of these rules apply only to traffic infractions governed by Chapter 318, Florida Statutes, adjudicated in a court of the state.

II. GENERAL PROVISIONS

Rule 6.040. Definitions

The following terms shall have the meaning respectively ascribed to them:

“Court” means any county court to which these rules apply and the judge or official.

“Judge” means any judicial officer authorized by law to preside over a court to which these rules apply.

“Criminal Traffic Offense” means a violation of a statute or ordinance governing traffic not subject to the provisions of Chapter 318, Florida Statutes, within the jurisdiction of a court to which these rules apply, including Chapter 322, Florida Statutes, sections 316.027, 316.061, 316.067, 316.-192, 316.193, 316.1935, 860.01, Florida Statutes, and Chapter 893, Florida Statutes.

“Official” means any state judge authorized by law to preside over a court or at a hearing adjudicating traffic infractions.

“Infraction Requiring a Mandatory Hearing” refers to an infraction listed in Section 318.19, Florida Statutes, which requires an appearance before a designated official at the time and location of the scheduled hearing.

Rule 6.060. Code of Judicial Conduct

The Code of Judicial Conduct adopted by the Supreme Court of Florida shall apply to the judge or official of each court subject to these rules, whether or not the judge or official has been admitted to the bar. It shall be the obligation of the judge or official to conduct his court and his professional and personal relationships in accordance with the same standards required of judges of courts of record.

Rule 6.130. Traffic Cases Tried Separately

Insofar as practicable traffic cases shall be tried separately from other cases. Where a person is cited for the commission of both a criminal and a civil traffic violation or both a civil traffic infraction requiring a mandatory hearing and a civil traffic infraction not requiring a hearing the cases may be heard simultaneously if they arose out of the same set of facts.

Under any of these circumstances the civil traffic infraction shall be treated as continued for the purpose of reporting to the Department. Prior to the date of the scheduled hearing of trial, an alleged offender may dispose of any non-mandatory civil traffic infraction in the manner provided by these rules and section 318.14, Florida Statutes.

Rule 6.156. Review Committee

(c) The Supreme Court shall designate one of the members to be chairman from time to time. The members of the Committee shall be selected on the basis of experience and interest in traffic adjudication, administration and safety. When practicable the members shall include representation from the following:

(1) The Florida Bar;

(2) County court judges;

(3) Prosecuting attorney from the county level;

(4) Law enforcement;

(5) County court clerks and deputy clerks;

(6) Administrative agencies such as the Department of Highway Safety and Motor Vehicles; and,

(7) The general public.

III. CRIMINAL OFFENSES

Rule 6.270. Failure to Testify

If the accused, his or her spouse, or witness does not testify at the trial, this fact shall not be construed to affect the innocence or guilt of the accused, nor shall it raise any presumption of guilt, nor be referred to by any party, nor be considered by the court or jury before whom the trial takes place.

Rule 6.290. Withholding Adjudication Prohibited; When

(b) The Court is also prohibited from accepting a plea of guilty or nolo contendere to a lesser offense from a person charged with driving under the influence, as provided for in Chapters 316 and 322, Florida Statutes, whose chemical results show a blood alcohol content by weight of .20 percent or more.

Rule 6.310. Lesser Included Offenses

No civil traffic infraction shall be considered a lesser included offense of any criminal traffic offense. As an example, where a person is cited for the criminal traffic offense of reckless driving pursuant to section 316.192, Florida Statutes, careless driving, section 316.1925, Florida Statutes, which is a traffic infraction, shall not be considered a lesser included offense of the reckless driving charge.

Rule 6.320. Complaint; Summons; Forms; Use

All citations for traffic infractions shall be by uniform traffic complaint as provided in section 316.650, Florida Statutes, or other applicable statutes, or by affidavit. If a complaint is made by affidavit a uniform traffic complaint shall be prepared by the clerk and submitted to the department.

Rule 6.470. Costs

(b) Where no hearing is required or held and the offender admits the commission of the offense by forfeiting a bond or paying the penalty the following costs may, if authorized by local rule, be deducted from the penalty by the traffic violations bureau or clerk’s office:

(1) One dollar for all infractions of bicycle regulations, section 316.2065, Florida Statutes, and infractions of pedestrian regulations, section 316.-130, Florida Statutes;

(2) Three dollars for all non-moving traffic infractions; and,

(3) Five dollars for all moving infractions.

(c) In addition to the costs provided above, one dollar shall be collected as provided in section 943.25(3), Florida Statutes, and an additional one dollar may be collected as provided in section 943.25(5), Florida Statutes.

Rule 6.560. Conviction of Traffic Infraction

An admission or determination that a person has committed a traffic infraction shall constitute a conviction as that term is used in Chapter 322, Florida Statutes and section 943.25(3) and (5), Florida Statutes.


text:
    Steven Richard CRONIN, Appellant, v. STATE of Florida, Appellee. Dennis McCURDY, Appellant, v. STATE of Florida, Appellee.
    Nos. 52838, 52839.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Robert E. Jagger, Public Defender, and Dane E. Disano, Asst. Public Defender, Clearwater, for appellants.
    Robert L. Shevin, Atty. Gen., and Martha J. Cook, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Reversed on the authority of Linville v. State, 359 So.2d 450 (Fla.1978).

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


author: SUNDBERG, Justice.

text:
    Melval C. HAIST, Petitioner, v. Joseph P. SCARP et al., Respondents.
    No. 52903.
    Supreme Court of Florida.
    Dec. 14, 1978.

      Joel L. Kirschbaum of Esler & Kirsch-baum, Fort Lauderdale, for petitioner.
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for respondents.
   SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of the decision of the District Court of Appeal, Fourth District, reported at 351 So.2d 1120 (Fla. 4th DCA 1977), which is alleged to be in conflict with Travelers Insurance. Company v. Agricultural Delivery Service, 262 So.2d 210 (Fla. 2d DCA 1972). The issue presented is the extent of a trial judge’s obligation to produce a record upon which an appeal may be taken, when he has no recollection of the proceedings and the parties failed to provide a court reporter. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

The original trial in this case was nonjury and resulted in a final judgment and supplemental order requiring petitioner to pay $12,666 to respondents. Neither the original trial nor the supplemental proceedings were reported and, indeed, both sides informed the trial judge that they did not need a court reporter. The final judgment was entered on August 26, 1976, and the order directed to the supplemental proceedings was signed March 30, 1977.

On May 13, 1977, over nine months after the entry of final judgment, petitioner moved to establish a record on appeal. The motion was denied on July 18, 1977, with the trial judge stating he could not remember the testimony adduced at trial. Petitioner’s interlocutory appeal to the District Court of Appeal, Fourth District, was denied. Grounding their decision on the parties conscious gamble not to provide a court reporter, the court held that where the trial judge could not recall the trial proceedings sufficiently to produce a record, he was not required to recall witnesses, interview respective counsel, or reconstruct testimony.

Petitioner asserts the district court erred in refusing to follow Travelers Insurance Company v. Agricultural Delivery Service, supra. Travelers held that in the event the trial judge could not remember the original proceedings, he should use all available means to restructure the testimony adduced at trial, including a consideration of the recollections of trial counsel, reference to documentary evidence or exhibits or, if necessary, the recalling or restructuring of trial testimony on the merits, with the judge resolving all conflicts that might arise between the parties. Respondents answer that the mandate of Travelers is tantamount to a time-consuming and costly mini-trial in which the trial judge must choose between conflicting and possibly inaccurate recollections. For the reasons hereinafter expressed, we hold that where the parties fail to provide a court reporter the trial judge is not obliged to transcend his recollection and notes of the trial to establish a record on appeal.

We believe Travelers is unrealistic in requiring a trial judge to search beyond his memory to reconstruct a record. The net effect of recalling witnesses and interviewing respective counsel is a mini-trial conducted solely to determine what transpired at the original proceeding. The findings of such a trial are bound to be unreliable, for they are necessarily based on hearsay, summarized and paraphrased information, and conflicting recollections of events which perhaps occurred long ago. The judge, having no independent recollection, must determine the facts without the aid of cross-examination and the ability to measure credibility. The result could be that the issues are tried on one set of facts and appealed on another.

Such a procedure is also costly and time-consuming. The trial courts of this State are already severely taxed. They can ill afford to spend precious time and money in gathering witnesses, interviewing counsel and restructuring past testimony.

It is the duty of the parties to a lawsuit to properly establish and preserve a record on appeal. Conversely, it is they who must suffer the consequences, not the courts, when this duty is not fulfilled. We agree with the district court below that:

In the case at bar both sides chose not to avail themselves of a court reporter. Such a choice always has had the potential for a backfire and we cannot agree that the courts are required to be used as substitutes for court reporters whenever the gamble not to create a record fails to pay off. This is especially so when the trial judge reports that his recollection does not permit it.

351 So.2d at 1121.

An accurate and comprehensive record of the proceedings below is absolutely essential to fair and efficient appellate review. This Court should provide every incentive to parties to develop and preserve an adequate record. We trust this decision will serve as such an incentive.

To the extent Travelers Insurance Company v. Agricultural Delivery Service, supra, is inconsistent with this opinion, it is hereby disavowed.

Accordingly, the decision of the District Court of Appeal, Fourth District, is approved and the writ of certiorari is discharged.

It is so ordered.

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

      . The final judgment and order were subsequently set aside to correct mistakes pursuant to Fla.R.Civ.P. 1.540(b)(1). New .final judgments were entered on May 17 and 31, 1977, respectively. The supplemental order is presently on appeal before the District Court of Appeal, Fourth District.

      . Were this situation to arise today, Fla.R. App.P. 9.200(b)(3) would be applicable. It provides:
      “If no report of the proceedings was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall, be included by the clerk of the lower tribunal in the record.”

      . See Fla.R.App.P. 3.6.


text:
    BOCA LAGO ASSOCIATES, LTD., Petitioner, v. Paula F. HAWKINS et al., Respondents.
    No. 53060.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Daniel H. Jones, of Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, and Roger F. Cox, Philadelphia, Pa., and Gerald Broker, of Blank, Rome, Klaus & Comisky, Miami, for petitioner.
    Leon F. Olmstead and Prentice P. Pruitt, Tallahassee, and R. M. C. Rose and Stanley M. Danek, of Myers, Kaplan, Levinson, Ke-nin & Richards, Tallahassee, for respondents.
   PER CURIAM.

Denied.

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


text:
    THE FLORIDA BAR, Complainant, v. Charles I. WARD, Respondent.
    No. 54459.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Michael C. Whittington, Asst. Staff Counsel, Tampa, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    Richard T. Earle, Jr., of Earle & Earle, St. Petersburg, for respondent.
   PER CURIAM.

Under our authority to discipline attorneys provided for by Article V, Section 15 of the Florida Constitution, the Court has for consideration the respondent’s petition for permission to resign from The Florida Bar without eligibility to seek reinstatement.

By this Court’s order of February 7,1978, the respondent was suspended from the practice of law for three years and thereafter until he could establish rehabilitation.

The respondent’s petition makes reference to his suspension, to a grievance committee report finding probable cause to complain of his failure to account to a client or proper authorities for $300,000, and to pending investigations by the Bar into ten other complaints against him. The petition also lists various civil actions that have been instituted against the respondent, and notes his convictions in five recent felony prosecutions.

In his petition to resign permanently the respondent acknowledges the ruling of this Court that, although the rule on resignation pending disciplinary proceedings contemplates that a resigning attorney may seek reinstatement, he will be bound by an agreement not to do so.

The Florida Bar in response submits that to grant the petition would not adversely affect the purity of the court system, hinder the administration of justice, or adversely affect the confidence of the public in the legal profession.

Accordingly, it is adjudged that the respondent’s petition to resign from The Florida Bar without eligibility for reinstatement is granted.

It is so ordered.

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

      . Fla.Bar Integr.Rule, art. XI, Rule 11.08.

      . Fla.Bar Integr.Rule, art. XI, Rule 11.08(5).

      . The Florida Bar, Re Leon H. Brush, 358 So.2d 1355 (Fla.1978).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.08(3).


text:
    THE FLORIDA BAR, Complainant, v. Douglas M. CARLTON, Respondent.
    No. 54961.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Thomas E. Byrd, Bar Counsel, Fort Laud-erdale, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Douglas M. Carlton, a member of The Florida Bar, is before us on complaint of The Florida Bar and Report of Referee. The referee’s report, amended report, and record were duly filed with this Court pursuant to Florida Bar Integration Rule, Article XI, Rule 11.06(9)(b). No petition for review has been filed.

In Count I of the complaint, the Bar alleged that:

3. The Respondent, Douglas M. Carlton, undertook the representation of Warren E. Lane in 1969 in a civil suit for damages against the owners of U-TOTE-M stores in Miami, Florida. Although he told his client on numerous occasions that suit had been filed Respondent never filed the action.
4. In the latter part of 1973 Warren E. Lane requested the Respondent to return his file, which the Respondent refused to do. Ultimately, the client was able to engage another attorney to secure the file and file suit before the four year statute of limitations ran out.
5. By reason of the foregoing, the Respondent has violated Integration Rule 11.02(3)(a) and Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 2-110(B)(3), 6-101(A)(3), 7-101(A)(l), 7-101(A)(2) and 7-101(A)(3) of the Code of Professional Responsibility.

The referee’s findings and recommendations, as amended, as to Count I are as follows:

I find the facts stated in Count I of the Complaint uncontradicted and sufficient, by clear and convincing evidence.
* * * * * *
I recommend that the respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and the Disciplinary Rules of the Code of Professional Responsibility, to wit:
DR 1-102 Misconduct: A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, nor (5) engage in conduct that is prejudicial to the administration of justice.
DR 2-110 Withdrawal from Employment:
(b) When his mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
DR 6-101 Failing to Act Competently by neglecting a legal matter entrusted to him.
DR 7-101 Representing a Client Zealously: Was not observed in that he failed to carry out the contract of employment entered and was not punctual.
* * * * * *
I recommend the Respondent be suspended for a period of three (3) months. This suspension should be served concurrently with the suspension recommended in Count II below.
Count II alleges:
2. Respondent, Douglas M. Carlton, undertook the representation of Andre Ratliff a/k/a Wade Ratliff, Jr. in June, 1971 in a personal injury case arising out of an automobile accident.
3. In 1973, Respondent finally settled the case for the sum of $3,500 and failed to disburse the monies to his client despite numerous demands for payment from the client and his father.
4. When the insurance settlement draft was received in the summer of 1973 it was not placed into a trust account but into Respondent’s general office account which was then overdrawn.
5. Part of the proceeds of this settlement draft went to pay the salary of Respondent’s secretary who deposited the draft and personally arranged for her salary check to clear with a bank officer.
6. Respondent maintained no trust account during this period of time and until late 1973.
7. Respondent maintained inadequate records as to trust property or funds and commingled trust funds with his own money during this period of time.
8. Respondent converted trust funds for his own personal use during this period of time.
9. Respondent failed to send a check to his client until after the committee hearings in 1974 which check was originally returned due to insufficient funds.
10. By reason of the foregoing, Respondent has violated Integration Rules 11.02(3)(a), and 11.02(4) of the Integration Rule of The Florida Bar and Disciplinary Rules 1 — 102(A)(3), 1-102(A)(4), 6-101(A)(3), 9-102(A)(l), 9-102(A)(2), 9-102(B)(2), 9-102(B)(3), and 9-102(B)(4) of the Code of Professional Responsibility.

The referee’s findings and recommendations, as amended, as to Count II are as follows:

The allegations of the Complaint are supported by substantial competent evidence; although Respondent under oath declares that he made payment, no proof or evidence thereof was presented or tendered to this Referee.
The allegations of the complaint are established with clear and convincing evidence.
I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and the Disciplinary Rules of the Code of Professional Responsibility, to wit:
DR 1-102(A)(3) and (4). Respondent engaged in conduct involving misrepresentation.
DR 6-101. He failed to act competently by neglecting a legal matter entrusted to him and failed to adequately account to his client.
DR 9-102(A)(l). He failed to preserve the identity of funds and did apparently commingle with his own funds; and withdraw funds for his own benefit.
DR 9-102(B). He did not keep his clients’ funds in a safe place nor maintain records nor render appropriate accounts to his client regarding funds coming into his possession as the lawyer.
******
I recommend that the Respondent be suspended for a period of twelve (12) months and, thereafter, until he shall prove his rehabilitation as provided under Rule 11.10(3), and for an indefinite period until he shall pay the costs of this proceeding and provide proof of restitution to his client in the amount due Andre Ratliff, a/k/a Wade Ratliff, Jr. upon the settlement of the case for the sum of Thirty Five Hundred ($3,500.00) Dollars.
Count III alleges:
2. In January 1973, Respondent undertook representation of Frances K. Chapman to prosecute a dissolution of marriage action and handle miscellaneous items on behalf of the client.
3. Respondent received certain items of his client’s personal property including several life insurance policies and failed to give his client a receipt for them, failed to place them in and maintain them in a safe place, and ultimately was unable to redeliver the same to the client.
4. By reason of the foregoing, Respondent has violated Integration Rule 11.02(4) and Disciplinary Rules 1-102(A)(6), 9-102(B)(2), 9-102(B)(3) and 9-102(B)(4) of the Code of Professional Responsibility.

The referee’s findings and recommendations, as amended, as to Count III state:

The allegations of the Complaint are supported by clear and convincing evidence and the evidence is uncontroverted.
I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and the Disciplinary Rules of the Code of Professional Responsibility, to wit:
DR 1-102(A)(6). The Respondent did conduct himself to adversely reflect on his fitness to practice law by his inability to maintain files in a safe place and redeliver to the client.
DR 9-102(B)(2). Respondent did fail and neglect to place the insurance policies of Chapman in a safe deposit box or other place of safekeeping to maintain them and, furthermore, was unable to render an account as to the whereabouts of the insurance policy properties of his client.
DR 9-102(B)(4). Respondent did fail to promptly redeliver securities when his client wished them which were delivered into the lawyer’s possession to which the client was entitled.
******
I recommend that the Respondent be found guilty on Count III and that Re-, spondent be suspended from the practice of law for a period of six (6) months, the rehabilitation previously called for to apply. This suspension should be served concurrently with the suspension recommended in Count II, above.

Having carefully reviewed the record, we find the allegations of the complaint and each count thereof to be proved either by admissions of the respondent or by clear and convincing evidence and, therefore, we approve the findings and recommendations of the referee.

Accordingly, respondent, Douglas M. Carlton, is hereby suspended from the practice of law for a period of twelve months and, thereafter, until he shall prove his rehabilitation as provided under Florida Bar Integration Rule, Article XI, Rule 11.-10(3). The suspension shall be effective on January 15,1979, thereby giving respondent. time to close out his practice and take the steps necessary to protect his clients, and it is ordered that respondent shall not accept any new business. In addition, respondent’s suspension shall continue for such further period until he shall pay the costs of this proceeding and provide proof of restitution to his client Andre Ratliff; also known as Wade Ratliff, Jr., in the amount of $3,500.

Costs in the amount of $790 found by the referee to have been reasonably incurred by The Florida Bar are hereby taxed against the respondent.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Milton R. WASMAN, Respondent.
    No. 55275.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Paul A. Gross, Branch Staff Counsel, Miami, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On October 12, 1978, The Florida Bar filed its Petition alleging:

■ “1. On September 19, 1978, Grievance Committee “G” of the Eleventh Judicial Circuit filed its report with The Florida Bar finding probable cause in Case No. 11G75006. In that report the committee found that Mr. Milton R. Wasman was found guilty on October 22, 1974 of failing to file a U.S. Income Tax Return for 1968 and that he was placed on probation in violation of Disciplinary Rule 1-102(A)(6). The grievance committee recommended that The Florida Bar accept Mr. Wasman’s Conditional Guilty Plea in return for a Public Reprimand which he signed on May 20, 1977.
“2. By his plea, Mr. Wasman admitted that he was guilty of failing to file a U.S. Income Tax Return for the year 1968, a federal misdemeanor.
“3. During September 1978, the Executive Committee of The Florida Bar approved the Conditional Plea of Guilty submitted by the Respondent.
“4. Due to the delay between the time the Respondent signed the Conditional Guilty Plea (May 20, 1977). and .the date of the Grievance Committee Report (September 19, 1978), the undersigned, Paul A. Gross, spoke with the Respondent over the telephone on or about October 3,1978, and he verified that the Respondent still desires to accept a Public Reprimand in return for his Conditional Plea of Guilty.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Milton R. Wasman, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above.

The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $50.00 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. R. Dale BENINCASA, Respondent.
    No. 55481.
    Supreme Court of Florida.
    Dec. 14, 1978.
    Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    R. Dale Benincasa, in pro. per.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Pending Disciplinary Proceedings, pursuant to Article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition is conditioned upon acceptance by the Board of Governors of the following terms and conditions:

“1. The [Respondent] has no past disciplinary history.
“2. The Florida Bar has served a Complaint on [Respondent] concerning cases 11A77M03, 11F77012, 11A77M34, 11A78M03, 1ÍA78M07 and 11A78M11 for which probable cause was found. The Complaint alleges misappropriation, negligence, misinformation to clients about their cases and improper settlement of a case.
“3. The Florida Bar also filed a Petition for Temporary Suspension on the above cases, pursuant to the Integration Rule of The Florida Bar, Article XI, Rule 11.10(5). The petition, Case No. 55,071, was granted by this Court on September 14, 1978.
“4. [Respondent] acknowledges he violated the Code of Professional Responsibility as alleged in the Complaint and Petition for Temporary Suspension, and pleads guilty to the Complaint in cases 11F77012 (complaint of Piper), 11A78M03 (complaint of Garr), 11A78M07 (complaint of Meyers), and 11A78M11 (complaint of Bengochea), but not cases 11A78M03 (complaint of Cosman), or 11A77M34 (complaint of Zammas).
“5. The Florida Bar has advised [Respondent] that nine other cases or complaints are under investigation by the Eleventh Judicial Circuit Grievance Committee “A”. These cases also involve misappropriation, negligence and misinformation to clients about their cases.
“6. [Respondent] acknowledges he violated the Code of Professional Responsibility with regard to some of the above cases, and waives probable cause proceedings for cases 11A76004 (complaint of Plymel), 11A78M27 (complaint of Co-hens), 11A78M91 (complaint of Schmitt), 11A78M72 (complaint of Powell), 11A78MA3 (complaint of DeFelicibus), 11A79M05 (complaint of Brozen), 11A79M28 (complaint of Ohlinger), and 11A79M37 (complaint of Brooks). [Respondent] does not admit guilt in case 11A78M69 (complaint of Rolle).
“7. [Respondent] has made restitution in cases 11A78M03 and 11A78M07 before the referee, and agrees to make restitution in cases 11A78M27, 11A78M72, 11A79M28 and 11A79M37 before the grievance committee.
“8. In addition, [Respondent] agrees to account for or return funds owed to the complainant in case 11A78M11.
“9. [Respondent] further agrees to affirmatively act to resolve all other complaints within six months of October 31, 1978.
“10. [Respondent] understands that under Article XI, Integration Rule 11.-08(6) no application for readmission may be filed until three years after the date of the Supreme Court order accepting resignation.
“11. [Respondent] also understands that no application for readmission may be filed until all costs of these proceedings of $752.15 have been paid, restitution has been made to his clients, and rehabilitation can be shown.
“12. [Respondent] agrees to cooperate with any Client Security Fund investigation made by the Bar.
“13. [Respondent] agrees to waive confidentiality of all disciplinary cases mentioned and his Petition for Resignation, pursuant to Article XI, Integration Rule 11.12(l)(a).
“14. Completion of the terms of this Petition will ensure that no harm will come to the public nor the administration of justice by allowing [Respondent] to resign in lieu of disciplinary proceedings.
“15. [Respondent] freely and voluntarily submits this Petition.”

The Florida Bar having now filed its response supporting the Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign is hereby approved.

It is so ordered.

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