author: PER CURIAM. FAULKNER, Justice

text:
    Billie Anne PRICE v. The AMERICAN NATIONAL BANK OF GADSDEN et al.
    SC 1689.
    Supreme Court of Alabama.
    Sept. 23, 1977.

      Thomas E. Davis, Gadsden, for appellant Billie Anne Price.
    Roger C. Suttle for Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   ON REHEARING

PER CURIAM.

The original opinion in this cause is withdrawn and the following is substituted for it.

Earl R. Price died testate on October 12, 1973, survived by his widow and three adult children. Price’s will did not provide for his widow, Billie Ann Price. She dissented, claiming a widow’s interest in the estate, and the cause was removed from the probate court to the circuit court. An “Agreed Final Decree” was entered on April 3,1975.

On July 1, 1975, the widow’s counsel, Mr. Lewis, petitioned the court to award him an attorney’s fee, to be paid from the estate. The widow also petitioned the court to grant her a pro rata share of the estate’s income from the date of the decedent’s death to the date of the “Agreed Final Decree.” The trial court denied both petitions — in separate decrees on July 29, 1975. The widow and attorney Lewis gave joint notice of appeal and filed a joint appeal pursuant to rule 3(b), Alabama Rules of Appellate Procedure.

The widow and her attorney raise three issues for our review: Did the trial court err in ascertaining and fixing the value of the widow’s dower interest? Did the trial court erroneously include a certificate of deposit as an asset of the estate? Did the trial court err in failing to award Lewis a fee for services rendered, the fee to be paid out of the common estate?

I

The widow’s attack on the “Agreed Final Decree” is without merit. The “Agreed Final Decree” was signed by her and her attorney and provided, in part:

“THIS CAUSE coming on for hearing following the entry of Decree dated January 6, 1975, and the filing of Defendant’s ‘Motion to Amend Judgment’, all parties being represented by counsel of record and it being made known to the Court that the parties have agreed to compromise and settle all issues involved in this action and all claims by the Defendant, Billie Ann Price, as the widow of Earl R. Price, deceased, and the Court having considered and approved said agreement, it is, therefore,
“ORDERED, ADJUDGED AND DECREED by the Court as follows: . .”

It is apparent that the parties agreed to compromise and settle all claims. As stated in Garrett v. Davis, 216 Ala. 74, 112 So. 342 (1926), a consent judgment “[M]ust be ‘regarded as in the nature of a contract or binding obligation between the parties thereto, which neither, in the absence of fraud or mistake, has the right to set aside or disregard, and which, as against each, is a waiver of errors and irregularities. Freeman on Judgments, § 330.’ Cowley v. Farrow, 193 Ala. 381, 384, 69 So. 114.”

The widow has made no showing of mistake or fraud; in fact, an inference of fraud or mistake was never raised.

II

The trial judge refused to award Attorney Lewis a fee out of the common estate for work he performed which allegedly enhanced the value of the estate. We affirm.

Lewis claims that he informed the court at the outset of the case that certain property of the deceased was worth between $45,000 and $50,000, whereas the court determined the value to be $30,000. The property was actually sold for $50,000. Citing Tit. 46, § 63, Code of Alabama, 1940, Lewis claims that it was an abuse of discretion for the trial court to fail to recognize the value of his services to the estate. The record does not disclose an abuse of discretion by the court. Lewis was employed by the widow to protect her special interest in the estate. Throughout the course of the trial, Lewis consistently stood as an adversary to the claims of the executor and the other beneficiaries of the estate. The awarding of an attorney’s fee is discretionary in these cases, and as stated in Pate v. Law, 277 Ala. 608, 173 So.2d 596 (1964):

“The allowance of attorney’s fees under the above statute [Tit. 46, § 63] is on the basis of, and solely for, benefits inuring to the common estate, and the tenants in common. Owens v. Bolt, 218 Ala. 344, 118 So. 590; Dent v. Foy, 214 Ala. 243, 107 So. 210; Snead v. Lee, 218 Ala. 44, 117 So. 469. This does not include a controversy as to the respective rights or interests of the tenants in common, and to permit counsel for respondent to have a fee out of the common estate, he must have been employed to render, and did perform some service for the common estate, which in due course of the proceeding other counsel had not been employed to perform. Matthews v. Lytle, 220 Ala. 78, 124 So. 197.”

MOTION TO DISMISS APPEAL

The appellees filed a Motion to Dismiss the Appeal on the grounds that two separate judgments, decrees or orders could not be brought up for appellate review by one appeal when the parties to the judgments were not the same.

We pretermit consideration of the motion to dismiss, but we affirm the judgments as to both appellants; therefore, the appellees are not harmed by our failure to grant the motion to dismiss the appeal.

APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER, J., dissents.

FAULKNER, Justice

(dissenting).

A rule is a rule, is a rule. While I don’t want to be understood to duck the merits of a case when the easy way out would be to go off on procedure, yet I think the merits should be properly presented for review. This majority opinion tosses out rule 3(b) ARAP. We may as well not have it.

Earl R. Price died testate on October 12, 1973, survived by a widow and three children, each over 21 years of age. Price did not provide for Billie Ann Price, his second wife, under the terms of his will. She dissented, claiming a widow’s interest in the estate of her husband, according to the statute of descent and distribution. The Circuit Court, after removal from the Probate Court, entered a final decree on April 3,1975, setting forth the widow’s interest in the estate. This decree was agreed to by Mrs. Price, the executor, Mr. Lewis, as counsel for Mrs. Price, and counsel for the executor.

After the agreed final decree, Mr. Lewis petitioned the court for attorney’s fee to be paid from the estate of Earl R. Price, and Mrs. Price petitioned the court to grant her a pro rata share of the estate’s income from the date of decedent’s death to the date of the agreed final decree, April 3. In separate decrees the court denied the petition of each. The basis of denying the petition of Mrs. Price was that she had already agreed to her distributive share, and had released all claims against the estate. The court denied Mr. Lewis’ petition on the ground that he was not entitled to an attorney’s fee from the estate of Earl Price. Each decree of the trial court was dated July 22, 1975.

Mrs. Price and Mr. Lewis filed a joint appeal from the separate decrees.

Rule 3(b), Rules of Appellate Procedure, provides that two or more persons may appeal from a judgment or order if there interests are such as to make joinder practicable. Here, Mrs. Price and Mr. Lewis are attempting to appeal jointly from separate decrees. By its terms Rule 3(b) authorizes joinder in appeal if appeals are taken from the same judgment. Moore’s Federal Practice, Vol. 9, 2d Ed., ¶ 203.13, p. 744. There is some authority for joint appeals from separate decrees, if the cases were consolidated for trial. St. Marie v. United States (CCA 9th 1940), 108 F.2d 876, cert. den., 311 U.S. 652, 61 S.Ct. 35, 85 L.Ed. 417. But, we do not have consolidated trials or hearings in this case.

Finally, our case law before the adoption of the Rules of Appellate Procedure, was to the effect that two final decrees in the same case cannot be the subject of appeal when the interested parties to each decree are not the same. See Kelly v. Deegan, 111 Ala. 152, 20 So. 378 (1895); Decatur Land Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509 (1916); United States Fidelity & Guaranty Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622 (1931).

I would dismiss the appeal.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    CITY NATIONAL BANK OF DOTHAN, a National Banking Association v. June T. BRICE.
    Civ. 917.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1976.
    Rehearing Denied Nov. 10, 1976.
    Lee & Mclnish and Stephen T. Ether-edge, Dothan, for appellant.
    J. Ronald Storey, Dothan, for appellee.
   HOLMES, Judge.

This appeal is from the Circuit Court of Houston County’s action dissolving a previously issued writ of garnishment.

The pertinent facts are not in dispute and are as follows: The appellee, a married woman, hereinafter referred to as the wife, in 1974 executed a promissory note in favor of appellant-bank. Subsequent to the execution of the promissory note the wife, in 1975, obtained a divorce. In the decree of divorce the wife was awarded periodic alimony. This alimony was to be paid through the Register of the Circuit Court of Houston County.

Subsequently, the bank filed suit against the wife on the promissory note and obtained a writ of garnishment on the wife’s periodic alimony payments. After some months of such garnishment, the circuit court, pursuant to the wife’s motion, dissolved the garnishment. Hence, this appeal.

The dispositive issue before this court is whether alimony can be garnished for payment of the wife’s debts incurred prior to the decree granting alimony. We answer in the negative and affirm.

While able and distinguished counsel for appellant-bank presents interesting argument as to why garnishment should be allowed, the Alabama Supreme Court, as appellee points out, has decided otherwise. We would note here that this court is bound by the decisions of our supreme court. See Tit. 13, § 111(10), Code of Alabama 1940.

In Ryan v. Ryan, 271 Ala. 243, 248, 249, 123 So.2d 102, 106, we find the following:

“Alimony is awarded upon considerations of equity and public policy. Since it is thus founded upon public policy and created in equity, it cannot be diverted from the purpose of support without public injury. Murray v. Murray, 84 Ala. 363, 4 So. 239. The courts which created this fund should see that it is not subjected to the payment of preexisting debts, whether claimed by the husband or by some third party. Fickel v. Granger, 83 Ohio St. 101, 93 N.E. 527, 32 L.R.A.,N.S., 270; Romaine v. Chauncey, 129 N.E. 566, 29 N.E. 826, 14 L.R.A. 712.” [Emphasis supplied.]

The reason for the above is perhaps best stated in the text found in 24 Am.Jur.2d Divorce and Separation § 529, and we quote at length:

“According to the general rule, since alimony is intended solely for the future maintenance of the divorced wife, it cannot be subjected to the payment of debts of the wife contracted prior to the decree granting the alimony, even though the debts may be of such nature that the husband is liable therefor.5 To permit the application of alimony to such debts would be to pervert the decree from its definite and intended purpose of providing support for the wife.6 The divorce, with its incidental allowance of alimony, simply continues the duty of the husband to support the wife and compels him to perform it, but does not change its nature. Although the courts in fixing the amount of alimony may pay more or less attention to the condition, habit of life, and social position of the parties, alimony never loses its distinctive character of being an allowance solely for support and constitutes a debt only in the sense that the general duty over which the husband had a discretionary control has been changed into a specific duty over which not he, but the court, presides. Creditors who contracted debts with the wife before the divorce decree can have no cause for complaint, for it cannot be said that they made advances upon the credit of alimony.”

All issues having been duly considered, the case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: ALMON, Justice. JONES, Justice

text:
    In re CITY NATIONAL BANK OF DOTHAN v. June T. BRICE. Ex parte City National Bank of Dothan, a National Banking Association.
    SC 2195.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied Aug. 12, 1977.
    Stephen T. Etheredge and Alto V. Lee, III of Lee & Mclnish, Dothan, for petitioner.
    J. Ronald Storey, Dothan, for respondent.
   ALMON, Justice.

We granted certiorari to the Court of Civil Appeals to determine whether alimony could be garnished. We concluded in Andrews v. City National Bank of Birmingham, Ala., 349 So.2d 1 (1977), decided today, that alimony may be garnished. The facts in this case are substantially the same as those in Andrews except that the debt here was contracted prior to the divorce. This factual distinction is without significance.

The judgment of the Court of Civil Appeals is reversed on the authority of Andrews, supra, and the cause is remanded.

REVERSED AND REMANDED.

TOLBERT, C. J., and BLOODWORTH, FAULKNER, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX and JONES, JJ., dissent.

JONES, Justice

(dissenting):

The reasons for my dissent in this case are set out in my dissenting opinion in Andrews v. City National Bank of Birmingham, Ala., 349 So.2d 1 [1977]. Though not mentioned in either the instant case or in Andrews (other than in my dissent in Andrews), by reversing the Court of Civil Appeals in this case, the effect of the majority holding in this case overrules Ryan v. Ryan, 271 Ala. 243, 123 So.2d 102 (1960).

MADDOX, J., concurs.


text:
    CITY NATIONAL BANK OF DOTHAN, a National Banking Association v. June T. BRICE.
    Civ. 917.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1977.
   On Remand from Supreme Court.

HOLMES, Judge.

The prior opinion of this court has been reversed and remanded by the Supreme Court. On remand to this court, and in compliance with the Supreme Court’s opinion of June 3, 1977, 350 So.2d 333, this cause is reversed and remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. DeCARLO, Judge BOWEN W. SIMMONS, Supernumerary Circuit Judge.

text:
    Danny Ray COLSTON v. STATE.
    6 Div. 217.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Nov. 2, 1976.
    William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Defendant-appellant, an indigent, was convicted of murder in the first degree and sentenced to life imprisonment. Judgment, the basis of this appeal, was duly entered.

This appellant on a prior date was tried and convicted of robbery for which he was sentenced to fifty years in the penitentiary. Judgment was duly entered and appeal therefrom was taken to this court which affirmed the judgment on November 4, 1975, rehearing was denied on December 5, 1975. Certiorari was denied by the Supreme Court on January 29, 1976. Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. den. 295 Ala. 398, 325 So.2d 531.

It appears from the record of the instant appeal that judgment of conviction was entered on November 20, 1975, at which time and date the jury returned a verdict finding defendant guilty of murder as charged in the indictment. It is to be noted that this verdict was returned and the judgment entered a few days after this court affirmed the judgment for robbery.

The instant record further shows that defendant entered a plea of former jeopardy as a defense. The court overruled the plea. The defendant asserted in this plea that on or about the 19th day of November, 1974, he was placed in jeopardy in case number 30960 in “this court” and that the facts and circumstances supporting “said case are substantially similar to the facts and circumstances which the State of Alabama will rely on in prosecuting this cause.”

He further asserted, “that the prosecution of this cause violates defendant’s rights as protected by the Fifth and Fourteenth Amendments to the Constitution of the United States.”

The indictment in this case charges the defendant with killing Janie Latino under such circumstances as to constitute murder in the first degree. In Colston, supra, defendant was indicted, tried and convicted of robbery. It appears here and in Colston, supra, that defendant shot and killed Mrs. Latino while the robbery was in progress and as an incident thereto. We quote from Colston as follows:

“Mr. Corsentino stating that he saw Mrs. Latino his employee, kneeling in a corner at the check-out counter. One of the two men said, ‘Open the cash register,’ but when he started to open it, they said, ‘No, let her open it.’ Mrs. Latino opened both registers and also gave them money from a money box. The currency taken included two rolls of quarters. Mr. Corsentino stated that the appellant then walked over to the register and got some Kool cigarettes, started around the counter, and shot Mrs. Latino and then shot him. Mr. Corsentino fell to the floor and saw the appellant shoot Mrs. Latino again.”

Since the robbery judgment is final, we hold that the trial court erred in overruling defendant’s plea of former jeopardy. The proof in the trial of Colston for robbery and the instant proof shows that the robbery and homicide were blended in the act and each offense was an incident of the other. The homicide was an act of violence as charged in the indictment for robbery, an incident to the robbery, and part thereof. Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. den. 294 Ala. 745, 321 So.2d 237; Burress v. State, 56 Ala.App. 414, 321 So.2d 752; Wildman v. State, 42 Ala.App. 357, 165 So.2d 396, cert. den. 276 Ala. 708, 165 So.2d 403.

In Burress, supra, the appellant (Burress) was first tried for murder, convicted and got life. In the second trial, on a different date, he was tried for robbery, convicted and received ten years. Appeals from both judgments of convictions were jointly taken. We affirmed in both, but remanded in the robbery case.

Appellant Burress in the robbery filed a plea of former jeopardy for that the murder and robbery arose out of the same transaction, i. e., the robbery. The remand was made so that the sentence in the robbery (ten years) could be made to run concurrently with the life sentence for murder. We observed:

“If the murder conviction is set aside such action will not affect the sentence under the robbery conviction.” Burress, supra.

It is to be noted that we also observed that:

“. . . [WJhere the other conviction is not yet final we would be speculating as to whether or not punishment under the murder conviction would preclude punishment under the robbery conviction. Accordingly, we consider that the New York practice of concurrent sentences is the only pragmatic solution.”

We again note that Colston’s conviction for robbery was final when his instant appeal from the murder conviction was here under consideration and the instant opinion authored. No speculation is involved.

In Yelton v. State, 55 Ala.App. 489, 317 So.2d 329, it appears appellant was convicted of murder in the second degree. The offense was committed right after he had broken into and entered a dwelling house occupied by the victim. A different Yelton appeal, 56 Ala.App. 272, 321 So.2d 234, involved an indictment for the burglary committed just before the homicide.

Judge Cates, writing for this court in the burglary case observed:

“Had there been but one trial resulting in two convictions, Wildman [supra] would allow both convictions to stand, but require punishment to be administered under only one of the convictions. But here the prior conviction of murder, when final, would bar the later prosecution for burglary. However, since the murder conviction is still under appellate review, the cause is remanded for appropriate action when the other cause is terminated.” Yelton, supra. [Bracketed material added.]

Conviction of the instant appellant for robbery had become final and we are free to say that his conviction therefor was a bar to the prosecution for murder. The plea of former jeopardy had merit. The judgment, the subject of this appeal is reversed and judgment is here rendered, discharging appellant from further prosecution under this indictment for murder.

We pretermit considering appellant’s other contentions of error.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

REVERSED AND RENDERED.

CATES, P. J., and TYSON and BOOK-OUT, JJ., concur.

HARRIS, J., concurs in the result.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

Even though this murder charge grew out of the circumstances involving the robbery previously tried, Colston, supra, it is not the same offense in law or in fact. Murder and robbery are two separate and distinct offenses which are completely unrelated. Jones v. State, 50 Ala.App. 174, 277 So.2d 920; Rutherford v. State, 49 Ala.App. 246, 270 So.2d 678.

In Racine v. State, 291 Ala. 684, 286 So.2d 896, the Supreme Court of Alabama recognized that although two cases are founded on the same facts, a plea of former jeopardy is unavailing if the crimes were not the same in law.

Based on the foregoing, I respectfully dissent.

ON REHEARING

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

There must be some affinity or relationship between two or more offenses to constitute one and the same transaction which is required to support a plea of former jeopardy or autrefois convict or acquittal. The affinity here present was the element of fear or violence alleged in the indictment charging the robbery. This element is necessary to constitute robbery. The homicide was a part of the violence here invoked by defendant to perpetrate the robbery. Hence, the robbery and the homicide were both a part of the same transaction, namely, the commission of the robbery. It is not permissible to break the transaction into component parts and convict for each.

In Yelton, supra, appellant was indicted for burglary with intent to kill and convicted therefor. Prior thereto he had been convicted of murder which followed the burglary. The burglary was committed to gain entrance to the residence so he could commit the homicide. Both were one and the same transaction. The plea of former jeopardy had merit. It is to be noted that in Yelton, this Court said:

“But here the prior conviction of murder, when final, would bar the later prosecution for burglary.”

Dennis Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798.

Moreover, in addition to the constitutional prohibition against double jeopardy, we are also controlled by T. 15, § 287, Code of Alabama 1940, recompiled 1958. This section was authored by the 1923 Code Committee. 1923 Code, Vol. 4, p. 954; Wild-man, supra.

OPINION EXTENDED.

APPLICATION OVERRULED.

CATES, P. J., and TYSON and BOOK-OUT, JJ., concur.

HARRIS, J., concurs in the result.

DeCARLO, J., dissents.

      . It is to be noted that in Burress, supra, we followed the New York practice, mainly so as not to release a valid judgment of conviction where a corollary judgment was not final. Here, under different circumstances, we follow California as shown in Wildman, supra.


author: MADDOX, Justice.

text:
    In re Danny Ray COLSTON v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General
    SC 2183.
    Supreme Court of Alabama.
    July 8, 1977.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, petitioner.
    No brief for respondent.
   MADDOX, Justice.

This Court granted the State’s petition for certiorari to review the Court of Criminal Appeals’ decision reversing and rendering Colston’s conviction of murder in the first degree and sentence to life imprisonment on the ground that Colston, having been tried for robbery, could not be tried for murder of a victim perpetrated by Col-ston because “[T]he homicide was a part of the violence here invoked by the defendant to perpetrate the robbery.”

On April 19, 1974, Colston and a man identified as Johnny Lee White were in the grocery store of Joe Corsentino which is located in Bessemer. At approximately 1:20 p. m., Corsentino went outside of his store. Upon returning, he was told by his store cashier, Mrs. Janice Latino, that a couple of customers were in the back of the store. Corsentino then saw two men at the meat counter, one of whom he identified as Danny Ray Colston. One of the men asked to purchase bologna. White went to the front of the store. As Corsentino was. slicing the bologna, he heard a gunshot and saw Colston coming around the corner. Colston led the owner up to the front of the store where he was ordered to open the cash register. Although Corsentino was ordered to open the register, Mrs. Latino, who was kneeling in a corner at the checkout counter, actually opened the register. Mrs. Latino handed over $164 from the register, as well as her purse, to White and Colston.

White took some cigarettes from the rack and went toward the door. Corsentino then saw Colston come around the counter and shoot Mrs. Latino while she was kneeling on the floor pleading for her life. Colston then shot Corsentino, and as he fell to the floor, Corsentino saw Colston shoot Mrs. Latino again. Mrs. Latino died as a result of these gunshot wounds.

Colston was first tried and convicted of an indictment for the robbery of Mr. Cor-sentino on November 4, 1975. That indictment charged as follows:

“The Grand Jury of said County, charges that before the finding of this indictment Danny Ray Colston whose name to the Grand Jury is otherwise unknown, feloniously took $164.00 in lawful money of the United States of America, of the value of $164.00, the property of Joe A. Corsentino, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

The robbery conviction was affirmed. Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531 (1975).

On November 20, 1975, under separate indictment, Colston was tried and convicted of the first degree murder of Mrs. Latino. The present indictment charges, as follows:

“The Grand- Jury of said County charges that before the finding of this indictment, Danny Ray Colston whose name to the Grand Jury is otherwise unknown, unlawfully and with malice aforethought, killed Janice Latino, by shooting her with a pistol against the peace and dignity of the State of Alabama.”

Colston’s motion to dismiss and plea of former jeopardy were dismissed by the trial court. On appeal, the Court of Criminal Appeals, 350 So.2d 334, reversed Colston’s murder conviction, holding:

“[T]hat the trial court erred in overruling defendant’s plea of former jeopardy. The proof in the trial of Colston for robbery and the instant proof shows that the robbery and homicide were blended in the act and each offense was an incident of the other. The homicide was an act of violence as charged in the indictment for robbery, an incident to the robbery, and a part thereof. Yelton v. State, 56 Ala.App. 272, 321 So.2d 234; cert. den., 294 Ala. 745, 321 So.2d 237; Burress v. State, 56 Ala.App. 414, 321 So.2d 752; Wildman v. State, 42 Ala.App. 357, 165 So.2d 396, cert. den., 276 Ala. 708, 165 So.2d 403.”

On rehearing, the Court of Criminal Appeals held:

“ * * * [I]n addition to the constitutional prohibition against double jeopardy, we are also controlled by T. 15, § 287, Code of Alabama 1940, recompiled 1958.
We reverse and remand.

The opinion of the Court of Criminal Appeals not only misinterprets Title 15, § 287, Code, but also expands the protection of double jeopardy far beyond that provided under the law announced by the Supreme Court of the United States in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

This Court, in Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973), pointed out the rule, as follows:

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and on fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law.” [Citations omitted.] 291 Ala. at 687, 286 So.2d at 898. See Jones v. State, 50 Ala.App. 174, 277 So.2d 920 (1973).

Colston’s robbery of Mr. Corsentino for which he was first convicted is different both in law and fact from his murder of Mrs. Latino. Colston committed two separate and distinct crimes bearing two intents; the intent to rob and the intent to kill. Colston’s acts, the robbery of Mr. Cor-sentino and the shooting of Mrs. Latino, clearly constituted two criminal offenses.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

      . Crimes punishable under different provisions. —Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.


author: PER CURIAM.

text:
    Danny Ray COLSTON v. STATE.
    6 Div. 217.
    Alabama Court of Criminal Appeals.
    Aug. 16, 1977.
   AFTER REMAND BY THE ALABAMA SUPREME COURT

PER CURIAM.

The judgment of Reversed and Rendered is vacated. The judgment is affirmed on authority of Colston v. State, Ala.1977, 350 So.2d 337.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Henry Leslie MAYES, alias v. STATE.
    6 Div. 179.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied June 7, 1977.

      Michael Crespi, Headland, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: thirty years imprisonment.

On the evening of May 28, 1975, around 8:30 P.M., three masked gunmen burglarized the Mountain Brook home of Dr. Melvin Bruce Sullivan. The three men entered the room where Dr. Sullivan was entertaining relatives, ordered all present to lay on the floor, and threatened to blow their heads off if they did not do as ordered. The robbers then took Dr. Sullivan’s $3,000.00 watch; a $4,000.00 silver service; around $300.00 in cash; an assortment of rings, watches and jewelry from those present, and; on departing, left in one of Dr. Sullivan’s cars, a two-door blue Buick.

Positive in-court identification of appellant as one of the robbers was made by Dr. Sullivan, his wife and two daughters. A more detailed account of the facts are set out in a companion case of one of the other robbers, Smith v. State, Ala.Cr.App., 346 So.2d 500 (1977).

I

Appellant’ contends that the “one-for-one” system of striking a jury in Jefferson County is a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, in that defendants in counties of less than 400,000 population get two strikes for every one strike allowed the State. The “one-for-one” strike system is authorized by § 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958.

This issue was conclusively settled in Liptroth v. State, Ala.Cr.App., 355 So.2d 683 (1976), cert. denied, Ala., 335 So.2d 688, wherein we said:

“We hold, as we have consistently held for the past forty years that § 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958, does not violate the United States Constitution. Colston v. State, 57 Ala.App. 4, 325 So.2d 520 (1975), cert. denied 295 Ala. 398, 325 So.2d 531; Mallory v. State, 55 Ala.App. 82, 313 So.2d 203 (1975) . . . Dixon v. State, 27 Ala. App. 64, 167 So. 340, cert. denied, 232 Ala. 150, 167 So. 349 (1936).”

II

Appellant contends that the trial court erred by refusing to grant his request for a writ of habeas corpus ad testifican-dum to return a prisoner to Alabama to testify in his behalf.

The record reveals that the appellant failed to follow the procedure set out in Title 45, § 61, Code of Alabama 1940, to obtain such a witness. That section requires the party seeking such witness to (1) file a sworn petition with the trial court, (2) showing facts known by the convict witness which would be beneficial to the petitioner, (3)which must be filed in sufficient time to allow authorities to produce the witness (the writ must be served on authorities at least one week before the witness is to testify). Appellant failed to comply with the above requirements by failing to file a sworn petition and by failing to show facts known by the witness which would be beneficial to him. Thus no error resulted in the trial court’s ruling. Baker v. State, 44 Ala. App. 409, 210 So.2d 855 (1968); Magee v. State, 43 Ala.App. 218, 187 So.2d 274 (1966).

III

Appellant contends that the trial court committed reversible error in refusing to grant a continuance due to his absence from the state for some two months just prior to trial. He also contends that he should have been given additional time in which to obtain interrogatories from the convict witness, Frank Black, whose testimony he merely alleged was “vital to the defendant’s case.” There was no showing in the record as to what facts the convict witness would testify.

The motion for continuance was heard immediately prior to trial on January 12, 1976. Appellant testified that he was arrested on May 28, 1975, and was confined until October 28, when he was taken from the Jefferson County Jail and transported to Ashville, North Carolina, to appear in another court. He was returned to Jefferson County on January 8 and his trial commenced on January 12. The record discloses that his present counsel was appointed to represent him on August 15, 1975. The record also discloses that counsel for appellant was aware of the trial date as early as December 29, 1975, when he filed his petition for writ of habeas corpus ad testifican-dum.

The ruling on a motion for a continuance is largely within the discretion of the trial judge, and we will not reverse his decision in the absence of a showing of gross abuse of discretion. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Pounders v. State, 55 Ala.App. 204, 314 So.2d 123 (1975).

Here, the appellant had counsel for almost two and one half months prior to being taken to North Carolina. He likewise had at least three days to confer with his counsel after his return to Jefferson County, prior to the trial date. The record indicates that trial preparation between him and his attorney was being conducted as early as December 11,1975. We find no abuse of discretion on the part of the trial court for refusing a continuance under those circumstances. We distinguish the instant situation from that in either Mars v. State, Ala.Cr.App., 339 So.2d 104, cert. denied, Ala., 339 So.2d 110 (1976) or Browning v. State, 57 Ala.App. 217, 326 So.2d 778, cert. denied 295 Ala. 392, 326 So.2d 783 (1975), wherein the defendants were given only a few minutes to consult with counsel prior to trial.

IV

Appellant attacks the validity of a warrant issued for the search of the premises where he and his companions were arrested. He contends there was an insufficient basis established before the issuing magistrate to show the officer’s confidential informant had a record of reliability.

Appellant attempted to question Officer Richard Watkins, the affiant, concerning specific details of information given on pri- or occasions by his informant. The officer testified that he had received information on two prior occasions which proved to be correct. The first occasion concerned some burglaries in 1973 or 1974, and the latest was in an automobile theft case in late 1974. The appellant then asked what the nature of the information was on those two occasions. The court sustained the following objection by the State:

“Judge, I object to that. He is slowly but surely getting to the identity factor. If he has enough information, he can prove the identity of the informant.”

The search warrant and supporting affidavits are not in the record. This, in itself, precludes our review of the trial court’s ruling on either the sufficiency of the underlying circumstances supporting the search warrant, or the limits of the search which may be conducted pursuant to the warrant. This Court cannot review rulings respecting written instruments not contained in the record. Barbosa v. State, Ala.Cr.App., 331 So.2d 811 (1976); Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); Woodall v. Malone-Harrison Motor Company, 219 Ala. 366, 122 So. 357 (1929).

In Barbosa, supra, officers, armed with a warrant to search the appellant’s apartment, also searched his automobile which was parked adjacent to the apartment building. The appellant contended that the warrant for the search of the apartment did not extend to the automobile. There, the State contended that since the automobile was parked within the curtilage, it was included within the warrant. On that point, we stated:

“ . . . Since the warrant appears nowhere in the record, and was introduced by neither the State nor the defense, we are unable to declare what the warrant encompassed. . . . ”

Further in the testimony of Officer Watkins, he recited, in camera, the items taken in the course of the search of the premises. Appellant objected to the introduction of the silver found in a search of his car, claiming that the warrant did not cover the automobile. The trial court overruled his motion to exclude the silver, however, when the jury was returned to the courtroom and Officer Watkins resumed his testimony, only those items found in the house and on the person of the appellant were introduced into evidence. The silver obtained in the search of the automobile was not introduced or testified to by Officer Watkins in the presence of the jury. Therefore, the trial court’s ruling that the silver found in the car was admissible would not amount to prejudicial error where it was not in fact introduced. Rule 45, Alabama Rules of Appellate Procedure.

V

Appellant contends that he was entitled to a charge to the jury respecting buying, receiving and concealing stolen property, as a lesser included offense of robbery. That point was raised in the trial court by an exception to the trial court’s oral charge. The appellant failed to submit a written requested charge to the trial judge on that point of law. The only written requested charge submitted to the trial judge by the appellant was a request for the affirmative charge, which was properly overruled in view of the substantial evidence of guilt presented in the course of the trial.

The indictment charges the appellant with the offense of robbery. Robbery is a common law offense and does not include as a lesser offense the crime of buying, receiving and concealing stolen property, which is a statutory offense set out in Title 14, § 338, Code of Alabama 1940. Buying, receiving and concealing stolen property includes elements not embraced in robbery, thus is not a lesser included offense within the meaning of Title 15, § 323, Code of Alabama 1940. Each element of the lesser offense must be included in the higher offense before § 323 applies. See: Worrell v. State, 54 Ala.App. 266, 307 So.2d 74 (1974).

AFFIRMED.

All the Judges concur.


author: OVERTON, Justice. OVERTON, Chief Justice.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF YOUTH SERVICES, and George Steadham, Appellants, v. Curtis A. GOLDEN, State Attorney, First Judicial Circuit, State of Florida, Appellee.
    No. 46321.
    Supreme Court of Florida.
    Feb. 26, 1976.
    Rehearing Denied Aug. 31, 1977.

      Sandra Jean Sonne and Mary E. Clark, Tallahassee, for appellants.
    • Curtis A. Golden, State’s Atty., and C. S. Williams, Jr., Asst. State’s Atty., for appel-lee.
   OVERTON, Justice.

This is an appeal from a circuit court declaratory judgment holding unconstitutional Sections 39.03(5)(a) and (b), Florida Statutes, relating to the confinement of juveniles, and Sections 39.03(7)(a) and (b), Florida Statutes, relating to pretrial detention of a juvenile. We have jurisdiction.

The state attorney for the First Circuit initiated this declaratory judgment action against the Division of Youth Services of the Department of Health and Rehabilitative Services. No individual litigant is involved in these proceedings.

Validity of Statutes Relating to Place of Detention

The trial judge held Sections 39.03(5)(a) and (b), Florida Statutes, concerning juvenile detention, unconstitutional because they are in conflict with Rules of Juvenile Procedure 8.030(5) and 8.050(a)(5).

It is our view that the provisions of Sections 39.03(5)(a) and (b), Florida Statutes, insofar as they concern the place of commitment or detention, establish only directory guidelines for trial judges dealing with juveniles. We construe the phrase in Section 39.03(5)(a) “or neither is the proper place therefor, in the opinion of the judge” as authorizing the trial judge to determine within his discretion the place of detention. This statute should be read in pari materia with Rules of Juvenile Procedure 8.030 and 8.050.

The provision of Section 39.03(5)(a), Florida Statutes, which directs the chief judge to advise the board of county commissioners of the number of juveniles committed to an adult jail facility is proper for use by the governing body of the county for fiscal and planning purposes. The provision cannot be used to interfere with the administrative operation of the court system, which is the sole responsibility of the judicial branch.

Validity of Statutes Relating to Pretrial Detention

Sections 39.03(7)(a) and (b), Florida Statutes, concern the period of time a juvenile may be detained prior to a judicial hearing. These statutory sections require an initial appearance within twenty-four hours and an adjudicatory hearing within fourteen days. Our Rules of Juvenile Procedure 8.050(a) and (c) require an initial appearance within forty-eight hours and an adjudicatory hearing within thirty days.

The trial judge held the rules must prevail over the statutes pursuant to the Court’s constitutional rule-making power, and declared the statutes unconstitutional.

This Court, under its rule-making authority, is under the obligation to establish proper procedures for criminal and juvenile proceedings which effectuate and implement constitutional and statutory rights and, to the extent possible, ensure against their violation. We have no authority to adopt rules which are primarily substantive in nature. The time limits prescribed by the juvenile rules in issue were adopted by this Court in order to comply with then-recognized constitutional procedural requirements.

Nevertheless, the length of time an individual may spend in confinement is substantive in nature and within the prerogative of the Legislature to the extent it does not violate a constitutional provision.

In establishing a statutory twenty-four hour time period within which a juvenile must have a detention hearing, the Legislature has established a statutory right to a detention hearing speedier than that afforded by our rules. The Legislature also adopted a shorter time period within which a juvenile must be adjudicated as a dependent or delinquent child, to which the same principle applies. Although the Legislature may shorten the detention time period, it cannot lengthen the period because of Sixth Amendment constitutional infirmities.

A twenty-four hour statutory time frame may cause some juvenile courts administrative problems, but adult criminal courts have complied with the twenty-four hour first appearance rule for more than two years. The twenty-four hour period for adult criminal causes was adopted to avoid federal constitutional problems.

In conclusion, we hold:

1. Sections 39.03(5)(a) and (b), Florida Statutes, are constitutional. The factors pertaining to the place of detention are directory and must be read together with the applicable juvenile rules. The trial judge has the discretion to determine the place of detention.

2. Sections 39.03(7)(a) and (b), Florida Statutes, concerning the earlier time for detention and adjudication hearings, are constitutional and prevail over Rule of Juvenile Procedure 8.050, which should be amended to conform with the statute.

The decision of the circuit court is reversed in accordance with the views expressed in this opinion.

It is so ordered.

ADKINS, C. J., BOYD and ENGLAND, JJ., and KLEIN, Circuit Court Judge, concur.

ROBERTS, J., dissents.

ON REHEARING

OVERTON, Chief Justice.

We withheld determination on rehearing because of proposed amendments to the Rules of Juvenile Procedure and proposed legislation concerning Chapter 39, Florida Statutes. Petition for Rehearing is denied.

In our initial disposition of this cause, we held the provisions of Section 39.03(5)(a) and (b), Florida Statutes (1975), establish only directory guidelines concerning the place of commitment or detention of juveniles pending adjudication. We further determined Section 39.03(5)(a), Florida Statutes, granted the trial judge the authority to determine within his discretion the place of detention. Both parties now ask whether the requirements of Section 39.03(5)(b)l.-b. and 2., are absolute. The parties contend our initial opinion is unclear relative to the authority of a judicial officer to jail a juvenile offender absent a recommendation of incarceration by the Division of Youth Services. We found the statute directory only, and the court may, if it deems it necessary, require detention absent Division of Youth Services’ approval.

We hold the provisions of Section 39.03(5)(b)l.b. and 2. are directory only. They constitute elements -which the trial judge properly should consider in making his commitment determination. Once committed to an executive agency, the agency must select among its facilities that best suited for the particular juvenile, but the court has the discretion to determine the appropriate detention or probation alternatives prescribed by statute taking into consideration the needs of both the individual and the public. He cannot be limited in this choice by the recommendation or lack of recommendation of Division of Youth Services personnel.

It is so ordered.

ADKINS, BOYD, ENGLAND, SUND-BERG, HATCHETT and KARL, JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.

      . §§ 39.03(5)(a) and (b), Florida Statutes.
      “(5)(a) The judge shall not make any order directing the delivery of a child to a jail unless neither a detention home nor a licensed child-caring institution exists within the county, neither is able to receive the child, or neither is the proper place therefor, in the opinion of the judge. The chief judge, or, where a specialized division to exercise the jurisdiction given by this chapter has been created, the presiding judge thereof, shall, at monthly intervals, inform the board of county commissioners or other governing body of the county, in writing, of the number of, and the reasons for, deliveries of children to jail, identifying children by initials and court case numbers, but not names.
      “(b) Commencing January 1, 1974, the judge may not make an order directing the delivery of a child to a jail or other facility intended or used for the detention of adults, except:
      “1. a. When jurisdiction of the matter as a juvenile case has been waived or removed pursuant to § 39.02(6), or
      “b. When the court determines, upon the recommendation of the superintendent of the detention home and an intake officer, that the child is beyond the control of the detention home staff, and
      “2. The receiving facility contains a separate section for juvenile offenders and has an adequate staff to supervise and monitor the child’s activities at all times.”

      .The applicable portions of Rules of Juvenile Procedure 8.030 and 8.050 are as follows:

        “Rule 8.030. Ordering Children Into Custody

      “If a verified petition in writing has been filed or if a written statement under oath be given the Court, stating facts showing that the welfare of the child or of the public requires that the child be taken into custody immediately, or that the child has violated a law, or the terms of his probation, the court may issue an order to a law enforcement officer or authorized agents of the Division of Youth Services, or authorized agents of the Division of Family Services, directing that the child be taken into custody.
      $ í(S S(! S}! !‡5 Sfc
      “(5) State that the child be brought immediately before the Court or be taken to a place of detention designated by the Court to be detained pending a detention hearing;”

        “Rule 8.050. Detention Order

      “(a) . . . The detention order shall:
      * ifc * * *
      “(5) Designate the place where the child is to be detained or the agency that will be responsible for his detention.”

      . See Davis v. State, 297 So.2d 289 (Fla.1974), for similar construction.

      . Sections 39.03(7)(a) and (b), Florida Statutes:
      “(7)(a) Except as provided in § 959.15, no child shall be held in detention or shelter care longer than twenty-four hours, excluding Sundays or legal holidays, unless a special order so directing is made by the judge after a detention hearing finding that detention or shelter care is required based on the criteria in paragraph (c) of subsection (3). The order shall state the reasons for such finding. The reasons shall be reviewable by appeal or in habeas corpus proceedings in the district court of appeal.
      “(b) No child shall be held in detention or shelter care under a special order for more than fourteen days unless an order of adjudication for the case has been entered by the court. The court may extend the special order detaining a child an additional thirty days in the case of a child covered by § 39.02(6)(c) when the grand jury fails to return an indictment within the fourteen-day period for that purpose, or when the state attorney shall give the court the notice provided for in § 39.02.”

      . R.J.P. 8.050(a) and (c).
      “(a) No child taken into custody, whether by an order of Court or as otherwise provided by law, who has not been adjudicated dependent, delinquent or in need of supervision, as a result of the incident for which he is taken into custody, shall be detained longer than forty-eight hours, excluding Sundays and legal holidays, unless a detention order so directing is made by the judge, following a hearing held by the Court in the county where the child is detained.
      * Sfc % * }fc *
      “(c) No child under such special order shall be held more than thirty days without adjudication as a dependent or delinquent child or a child in need of supervision.”

      . Art. V, § 2(a), Fla.Const.

      .The Sixth Amendment to the United States Constitution, prescribing speedy trial, as construed by the United States Supreme Court, does not require a specific period of time when a defendant is entitled to be heard either for a judicial determination of probable cause or for a final disposition of the proceedings. The period of delay, is however, the initiating factor in determining whether that constitutional provision has been violated. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The key factor is whether the defendant’s rights have been prejudiced by any delay that has occurred. Adoption of time periods by rules or statutes was suggested to avoid multiple speedy trial problems.

      . See Benyard v. Wainwright, 322 So.2d 473 (Fla.1975).

      . Acides v. Purdy, 322 F.Supp. 38 (S.D.Fla.1970); Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973), aff’d in part and rev’d in part sub nom. Gerstein v, Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).


author: PER CURIAM. DAUKSCH, Judge,

text:
    Robert James MAGUIRE, Appellant, v. STATE of Florida, Appellee.
    No. 75-2282.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review and consideration of the briefs, record on appeal and oral argument we are of the opinion that no reversible error has been demonstrated. We have carefully considered and reject the retroactive application of the recent decision of the Supreme Court of Florida in Roberts v. State, 335 So.2d 285 (Fla.1976), adopting the so called “Lyles” rule. In this regard, we agree with the reasoning and rationale of the Third District in Williams v. State, La.App., 346 So.2d 554, opinion filed February 8, 1977; but see, Ringgo v. State, 339 So.2d 293 (Fla. 2d DCA 1976). Accordingly, the judgment and sentence are affirmed.

AFFIRMED.

MAGER, C. J., and ALDERMAN, J., concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent for the reason I do not read Roberts v. State, as cited, as being prospective only. Also, without Roberts there is enough to reverse. The Appellant here timely requested an instruction to the jury concerning the consequences of a not guilty — insanity verdict. The court denied the instruction and gave an instruction as to the consequences of a guilty verdict and an instruction on probation and parole. Appellant presented psychiatrists and a psychologist in support of his insanity defense and showed a prior history of psychiatric problems. It is presumed everyone knows the consequences of a not guilty verdict and the jury was instructed on the consequences of a guilty verdict. So there should have been an instruction as to the consequences of a not guilty — insanity verdict to keep the jury from logically thinking it might turn loose an insane killer.


author: CROSS, Judge. MAGER, Judge,

text:
    Ernest SHERMAN, Appellant, v. RESERVE INSURANCE COMPANY, an Illinois Corporation, Appellee.
    No. 76-1676.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Oct. 24, 1977.

      W. Clinton Wallace, of Billings, Frederick, Wooten & Honeywell, P.A., Orlando, for appellant.
    W. Lane Neilson, of Pitts, Eubanks, Ross & Rumberger, P.A., Orlando, for appellee.
   CROSS, Judge.

Appellant, Ernest Sherman, appeals a summary final judgment entered in favor of appellee-defendant, Reserve Insurance Company, in an action to secure personal injury protection benefits under an automobile insurance policy. We reverse.

The appellant was injured as a result of a motor vehicle accident while he was operating an automobile owned by one Arlie Miller. The appellee, insurer of Mr. Miller’s vehicle, denied coverage to the appellant for the reason that at the time of the accident appellant owned a vehicle which, although duly registered with the State of Florida, was uninsured. At the time of the accident which gives rise to the instant litigation, Mr. Sherman’s automobile was totally inoperable as the result of a mechanical failure which had occurred during a fishing trip a month earlier in the Town of Cocoa. Although Mr. Sherman had maintained automobile insurance as required by law up until the time of the mechanical breakdown, he had allowed such insurance to lapse because of the inoperable condition of his vehicle. Mr. Sherman’s automobile was not repaired until some time after the accident which occurred while he was operating Mr. Miller’s automobile. Subsequently, this action was commenced, and upon completion of pleading and discovery, both parties moved for summary judgment. The trial court, after hearing, entered its order granting appellee’s motion for summary judgment and summary final judgment was entered thereon. This appeal then followed.

The thrust of the appeal is whether an automobile which has been rendered inoperable due to mechanical failure or defect is subject to the security requirements of the Florida Automobile Reparations Reform Act (No-Fault). Section 627.730, et seq., Florida Statutes (1971).

Section 627.733, Florida Statutes (1971), provides that every owner or registrant of a motor vehicle required to be registered and licensed in the State of Florida shall maintain security on such vehicle. Section 320.01, Florida Statutes (Supp. 1977), defines “motor vehicle” to include:

“Automobiles, . . . and all other vehicles operated over the public streets and highways of this state and used as a means of transporting persons or property over the public streets and highways and propelled by other than muscular power . . .” (Emphasis added)

The question of when a motor vehicle is required to be registered is set forth in § 320.02, Florida Statutes (1975), which provides:

“Every owner ... of a motor vehicle . . . which shall be operated or driven upon the highways of this state, or which shall be maintained in this state, shall for each such vehicle so owned, cause to be filed by mail or otherwise, ... a certified application for registration of same . . . ” (Emphasis added)

In discussing the relationship between § 320.01 and the emphasized language of § 320.02, the Florida Supreme Court stated in the case of Green v. Pederson, 99 So.2d 292 (Fla.1957), that:

“[T]he italicized portion of this section [§ 320.02] adds nothing to the definition of a ‘motor vehicle’ . . ., and was added for the purpose of requiring the annual renewal of registration and reli-censing of motor vehicles, e. g., a house trailer, even though not actually being ‘operated over the public highways and streets of this state’ at the expiration of the license year.” (at 296)

While it is true that the definition of “motor vehicle” has become more restrictive since the Florida Supreme Court handed down its decision in the Green case, the law still requires that every motor vehicle, whether being operated over the public highways and streets of this state or maintained for that purpose, comply with the registration and licensing requirements set forth in the Florida Statutes. However, the perpetual registration requirement of the Statutes of the State of Florida remains applicable only so long as the instrumentality continues to meet the definition of “motor vehicle” as set forth in § 320.01, Florida Statutes (1972).

Section 320.01, Florida Statutes (1972), sets forth three requisites which must be fulfilled before an instrumentality can be legally defined as a “motor vehicle” and therefore be subject to the registration requirement set forth in the Florida Statutes. First, the instrumentality must be operated over the public streets and highways of this state or maintained for that purpose. Section 320.01, Florida Statutes (1972), Section 320.02, Florida Statutes (1975); Green v. Pederson, supra. Second, the instrumentality must be capable of being used for transporting persons or property over the public streets and highways. Finally, the instrumentality must be propelled by other than muscular power. The choice of the conjunctive “and” by the legislature in drafting this provision indicates that it was the intent of the framers to require that all three of the requirements set forth in § 320.01, Florida Statutes, be met before an instrumentality is defined by law as a “motor vehicle.”

In applying the statutory definition of “motor vehicle,” we hold that an automobile, which has been rendered inoperable due to mechanical failure or defect, does not fall within the definition established by law and therefore is neither required to be registered and licensed nor to maintain security under the provisions of the Florida Automobile Reparations Reform Act. It is clear that an automobile rendered inoperable due to mechanical defects cannot possibly fulfill any of the three requirements set forth in § 320.01, Florida Statutes. The instrumentality cannot be operated over the public streets under its own power, nor is it suitable for transporting persons or property over the public highways. Until such instrumentality is repaired and restored to an operable condition, it remains an assemblage of components which is incapable of functioning as a motor vehicle. The result we reach today is consistent not only with simple logic, but is also consistent with the generally accepted scope of the state's police powers in regulating traffic over public thoroughfares, and in no way serves to undermine the intent of the framers of the Florida Automobile Reparations Reform Act.

An interpretation of the applicable statutory provision which would require that all automobiles, once registered and licensed, maintain such registration and meet the security requirements of the Florida Automobile Reparations Reform Act until such time as that automobile finds its final resting place in some junkyard would lead to absurd results. Consider, for example, the case of an individual purchasing a classic automobile for restoration. The automobile while being stored may remain garaged and be totally inoperable for a time period of many months, although the operator is possessed with the intent to place that automobile back on the roadway at some indefinite future date in a restored condition. Surely the legislature in drafting § 320.01, § 320.02 and § 627.733, Florida Statutes, did not intend that the law require that individual to maintain current registration and suffer the burden of paying insurance premiums for an automobile for which there exists no possibility of being involved in an automobile accident on the public roadways. The same rationale exists for an automobile which is rendered temporarily inoperable due to mechanical failure, which may sit for an indefinite period until such time as repairs can be completed.

Moreover, the legislature’s primary concern in dealing with motor vehicles is their regulation while operated over the public streets and highways of this state. Again, the opinion of the Florida Supreme Court in Green v. Pederson, supra, is instructive:

“The primary purpose of the particular provisions of our Motor Vehicle License Law here involved [§ 320.01, § 320.02] is to regulate the operation of motor vehicles on the highways and streets of this state. As stated in Herr v. Butler, 1931, 101 Fla. 1125, 132 So. 815, 817: ‘The Legislature, under its police power to protect the public from dangerous instru-mentalities using the highways, has imposed rigid restraints, regulations, and restrictions upon the use of motor vehicles, . . .’ And in Harper v. England, 1936, 124 Fla. 296, 168 So. 403, 406, it was said that the license tax on motor vehicles ‘is a tax imposed for the use of the state highway.’ ” (at 296)

Furthermore, our holding today does not in any way conflict with the underlying objectives of the Florida Automobile Reparations Reform Act. These legislative objectives as discussed by the Florida Supreme Court in Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974), include:

“. . .a lessening of the congestion of the court system, a reduction in concomitant delays in court calendars, a reduction of automobile insurance premiums and an assurance that persons injured in vehicular accidents would receive some economic aid in meeting medical expenses and the like, in order not to drive them into dire financial circumstances with the possibility of swelling the public relief rolls. . . . ” (at 16)

The legislature may require owners and registrants of motor vehicles operated over the public roads to maintain insurance for their own protection. Such a law furthers the objectives of the legislature in adopting the No-Fault Insurance Act. However, no public interest is served by denying personal injury protection benefits to an individual involved in an accident in another’s automobile merely because that individual has an inoperable automobile in storage upon which the insurance coverage has intentionally been allowed to lapse because of its inoperable condition. Such an individual may not be considered the owner or registrant of a motor vehicle required to be registered and licensed in this state, and therefore does not fall within the purview of the security requirements of § 627.733, Florida Statutes (1971).

Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

KOVACHEVICH, ELIZABETH A., J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge,

dissenting:

While the majority has presented a very forceful argument supporting a reversal I am somewhat more persuaded by the rationale reflected by our sister court in Tapscott v. State Farm Mutual Automobile Ins. Co., 330 So.2d 475 (Fla.1st DCA 1976). I would, therefore, affirm the judgment based upon the decision in Tapscott.

      . For a discussion of the status of house trailers as “motor vehicles” see Palethorpe v. Thomson, 171 So.2d 526 (Fla.1965).

      . Under discussion in the Green case was former § 320.01, Florida Statutes (1951), which defined “motor vehicle” to include:
      “(1) . . . automobiles, motorcycles, motor trucks and all other vehicles operated over the public highways and streets of this state and propelled by power other than muscular power, but does not include traction engines, road rollers and such vehicles as run only upon a track.”


author: GRIMES, Judge.

text:
    AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA and Olin’s Miami Rent A Car, Inc., Appellants, v. LEATHERBY INSURANCE COMPANY and Julio Gonzalez, Appellees.
    No. 76-2062.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1977.
    Rehearing Denied Sept. 30, 1977.

      Larry D. Goldstein and Peter H. Dubbeld of Brown, Watson, Goldstein & Douglass, St. Petersburg, for appellants.
    Dennis E. Dabroski of Lyle, Skipper, Wood & Anderson, St. Petersburg, for ap-pellees.
   GRIMES, Judge.

This case involves the question of which insurance carrier is the primary insurer in a rental car situation.

Julio Gonzalez leased a rental vehicle from Olin’s Miami Rent A Car, Inc. While driving this car, Gonzalez was involved in a motor vehicle accident. Gonzalez owned an automobile liability policy issued by Leath-erby Insurance Company. Olin’s had liability insurance coverage with American Bankers Insurance Company of Florida.

The two insurance carriers disagreed over who carried the primary coverage. In a suit for declaratory judgment, the court ruled that Bankers was the primary insurer and Leatherby was the excess insurer. In order to resolve the problem, the provisions of both insurance policies must be carefully analyzed.

Bankers’ policy provided liability coverage for Olin’s as the primary insured and provided so-called contingent limited coverage for persons other than the primary insured. The definition of a contingent insured is:

“(a) any person or organization using a RENTAL VEHICLE WITH THE PERMISSION OF THE OWNER, BUT ONLY IF SUCH PERSON OR ORGANIZATION HAS NO OTHER AUTOMOBILE LIABILITY INSURANCE AVAILABLE TO HIM WITH LIMITS OF LIABILITY AT LEAST EQUAL TO THE FINANCIAL RESPONSIBILITY LIMITS, whether on a primary, contributory, excess, or any other basis with respect to his use of the rental vehicle.”

With respect to contingent limited coverage, the policy stated that the insurance:

“. . . SHALL NOT APPLY TO ANY LOSS WITH RESPECT TO WHICH THE CONTINGENT INSURED IS COVERED BY ANY OTHER AUTOMOBILE LIABILITY INSURANCE, WHETHER ON A PRIMARY, CONTRIBUTORY, EXCESS OR ANY OTHER BASIS, UNLESS the total amount of the loss exceeds the sum of the limits of liability of all other policies, bonds, or plans or self-insurance affording such insurance, and then the company shall be liable, subject to (a) above, only for the excess of the loss above such insurance.”

The policy further provided that the limits of liability under contingent limited coverage was only the amount by which the applicable financial responsibility limit exceeded the sum of the limits of liability under all other automobile liability insurance available to the contingent insured. The automobile rental contract stated that Olin’s liability policy would cover the lessee, but only if the lessee had no liability insurance to apply to his use of the vehicle.

The Leatherby policy provided coverage to its insured while driving nonowned or temporary substitute automobiles but stated:

“If the insured has other insurance against a loss covered by Part I of this policy, the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.”

Thus, with reference to this accident, the Bankers’ policy contained what is usually termed an escape or no liability clause and the Leatherby policy included what is generally known as an excess clause. On numerous occasions the courts of our land have been asked to resolve the conflicts between policies containing clauses of these types. In what has sometimes been called the majority rule, many courts have held that the policy with the escape clause is primary because the policy which contains the excess clause is deemed not to provide other collectible coverage. 16 Couch on Insurance 2d § 62:76; Annot., 46 A.L.R.2d 1163 at 1165 (1956). On the other hand, in more recent years a number of courts have held that the insurer whose policy contains an escape clause is absolved from liability. Couch, supra, § 62:75. See cases cited in 46 A.L.R.2d 1163, Later Case Service. Some courts have considered the clauses as mutually repugnant and have required both carriers to contribute on a pro rata basis. E.g., Union Ins. Co. (Mutual) v. Iowa Hardware Mut. Ins. Co., 175 N.W.2d 413 (Iowa 1970).

Florida first approached the problem in Continental Cas. Co. v. Weekes, 74 So.2d 367 (Fla.1954), a case which the commentators have interpreted as placing Florida in line with the minority view. In that case, the liability insurance carrier for Acme U-Drive-It Service, Inc. contained a provision which would have covered the driver of a leased automobile except for the following provision:

“ ‘3 Application of Insurance
“ ‘(b) The insurance does not apply:
Sf¡ # * SfC % #

“ ‘(4) to any liability for such loss as is. covered on a primary, contributory, excess, or any other basis by insurance in another insurance company.’ ”

The driver of the leased automobile had a liability policy of his own which contained an excess clause similar to the one in the Leatherby policy. Our Supreme Court upheld the position of Acme’s insurer and ruled that because of the provision quoted above, Acme’s policy did not constitute “other valid and collectible insurance” as specified in the excess clause of the driver’s policy.

However, a provision identical to the contingent insured or escape clause of Bankers’ policy did not fare so well in Diversified Services, Inc. v. Jackson, 330 So.2d 830 (Fla.3d DCA 1976). As in the instant case, the driver’s policy contained the typical excess clause. The court first observed that in its previous decision of Executive Rent-A-Car, Inc. v. Uditsky, 297 So.2d 340 (Fla.3d DCA 1974), the contingent insurance clause had been ruled invalid. The court went on to say that because that clause was invalid, the limitation of coverage to the amount specified by the financial responsibility law was also invalid. Thus, the court held that the car rental agency’s insurer had no right of indemnification against the driver or his insurance company.

The Diversified Services case seems to be directly on point but by the same token appears to conflict with the Weekes decision which is not mentioned in the opinion. It is true that the Supreme Court in Weekes left open the possibility that a contingent insurance clause could under some circumstances be invalid by stating:

“It remains to consider whether or not this clause is contrary to public policy or to law, Penn v. National Union Indemnity Co., supra, [5 Civ.], 68 F.2d 567. There is no basis in the record before us for the conclusion that public policy will be violated by the enforcement of clause 3(b)(4), although we cannot and do not hold that this will be true in every case.

However, as between insurers, no particular reason comes to mind why such a clause would be invalid. The travelling public will not be left unprotected because the car will be insured for at least the limits required under the financial responsibility law. Since the Uditsky case was a per curiam decision without opinion, we do not have the benefit of our sister court’s reasoning in this regard. However, we note in passing that in an earlier decision the same court specifically held that a contingent insured provision like the one in the instant case was not against public policy. Continental Ins. Co. v. Pan American Fire & Cas. Co., 237 So.2d 43 (Fla.3d DCA 1970).

In our judgment the rationale of the Weekes case still controls. Thus, we reaffirm our previous observation in World Rent-A-Car v. Stauffer, 306 So.2d 131 (Fla.2d DCA 1974), that in Florida where a conflict exists between an escape clause and an excess clause, the escape clause will be enforced.

Our conclusion is fortified by the recent opinion of the Supreme Court in Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Opinion filed May 12, 1977), in which the right to freedom of contract between lessors and lessees of motor vehicles concerning liability insurance was upheld so long as the public policy of the state with respect to financial protection from motor vehicle accidents was not impugned. The court stated that it saw nothing in the public policy of the state “which would prohibit an owner from insuring only itself against economic loss in excess of statutory mínimums and the amounts available to others.” The court rejected the argument that rental fees paid to a car rental company pass on the cost of the insurance purchased by the owner so that it would be unfair for the lessee not to have coverage coextensive with that provided the owner under its policy.

Our holding does no violence to Roth v. Old Republic Insurance Company, 269 So.2d 3 (Fla.1972), because in Roth there was no escape clause in the car rental company’s insurance policy. As pointed out in Insurance Company of North America v. Avis Rent-A-Car System, Inc., supra, the insurance coverage provided to the lessee in Roth by the owner’s carrier as part of the rental contract was greater than the loss for which the owner was held responsible. In essence, once it was determined in Roth that the driver was an insured within the definition of the insured (the omnibus clause) in the rental car agency’s policy, the agency’s carrier was not entitled to seek indemnification from the driver even though he was the active tortfeasor. In the instant case, Gonzalez is not an insured under the Bankers’ policy because of the contingent insurance clause and the fact that he had a policy of his own.

In view of our conclusion, we would ordinarily direct the trial court to enter a judgment for the appellants. However, there is one aspect of the case which suggests that we proceed with caution. There is a portion of the rental contract which indicates that Gonzalez elected to obtain “Olin’s Travelers’ Protection” for a premium of $1 per day. The contract indicates that Olin’s Travelers’ Protection is described in a certificate of insurance, but this certificate is not included in the record which has been filed in our court. We suspect that Olin’s Travelers’ Protection involves life insurance since there is a space furnished for the insured to designate a beneficiary, but if it happened that Olin’s Travelers’ Protection also provided liability insurance, the provisions of the certificate of insurance could affect the ultimate disposition of this case.

Accordingly, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

BOARDMAN, C. J., and OTT, J., concur.

ON PETITION FOR REHEARING

The appellees call to our attention (for the first time) that because the Leath-erby policy covering Gonzalez was issued pursuant to the laws of New York, its limits of $10,000/$20,000 are below the finanical responsibility requirements of Florida in effect at the time of the accident. Since the accident occurred in Florida, this brings into play the following provision of the Bankers policy:

“(a) The limits of the company’s liability under PART ONE of this policy shall be the amount by which the applicable financial responsibility limit exceeds the sum of the limits of liability under all other automobile liability insurance available to the contingent insured, separately as to bodily injury and property damage, ...”

Thus, our opinion is hereby modified to the extent that the Leatherby policy is deemed to provide primary coverage to Gonzalez up to the policy limits with the Bankers policy covering him against such liability as he may have in excess of the Leatherby limits up to $15,000/$30,000, which are the applicable limits under the Florida Financial Responsibility Law.

Otherwise, the petition for rehearing is denied.

BOARDMAN, C. J., and OTT, J., concur.


author: PER CURIAM. MILLS, Judge

text:
    Emmett J. LORD, Appellant, v. Maxine LORD, Appellee.
    No. EE-169.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1977.
    Franklin R. Harrison of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellant.
    Herman D. Laramore, Marianna, for ap-pellee.
   PER CURIAM.

Our examination of the record reveals that the learned trial judge was required to make difficult decisions based upon complex and confusing evidence adduced in support of, and in opposition to, issues poorly framed by the pleadings and that he obviously attempted to “do equity”. (See F.S. 61.08(2)) We do not find that appellant has met his burden of demonstrating abuse of discretion nor reversible error. The final judgment here appealed is therefore

AFFIRMED.

BOYER, Acting C. J., and ERVIN, J., concur.

MILLS, J., dissents.

MILLS, Judge

dissenting:

I dissent.

Mrs. Lord did not claim nor prove a special equity in the home. She did not seek nor prove partition. Nor did she claim or prove an award of the home as lump sum alimony. It was error for the trial court to award Mrs. Lord, Mr. Lord’s interest in the home.

The facts before us fail to support the trial court’s award of rehabilitative alimony to Mrs. Lord. She was employed. Her ability to earn a living was not decreased by her marriage. Her net worth was equal to that of Mr. Lord. The award of rehabilitative alimony was error.

The award of attorney’s fees to Mrs. Lord was error also because her financial condition was as good as that of Mr. Lord.

I would reverse the judgment of the trial court except as to the award of the household furnishings to Mrs. Lord which I would affirm.


author: SMITH, Judge.

text:
    Jack D. SMITH a/k/a Jack Dempsey Smith and Mary N. Smith a/k/a Mary Nell Smith, his wife, Appellants, v. BARNETT BANK OF MURRAY HILL, a State Banking Corporation, Appellee.
    No. FF-273.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1977.

      William A. MacGuire, Stephen H. Davis and Robert W. Elrod, Jacksonville, for appellants.
    George L. Hudspeth and Alan Chipper-field of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   SMITH, Judge.

This is an interlocutory appeal in a mortgage foreclosure proceeding, formerly cognizable in equity. Fla.App.R. 4.2a. Defendants complain principally of the trial court’s order which set counterclaim issues of usury for trial with the foreclosure issues without a jury and which dismissed Count II of defendants’ second amended counterclaim and their second amended affirmative defense alleging fraud. The trial court properly dismissed the fraud defense and counterclaim with prejudice after defendants failed in three pleading attempts. We reverse the order setting the usury counterclaim for trial without a jury.

The Declaration of Rights secures the right of jury trial for cases in which a jury trial was traditionally afforded at common law. Article I, Section 22, Florida Constitution; Flint River Steamboat Co. v. Roberts, Allen & Co., 2 Fla. 102 (1848); Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697 (1894). No right of action for recovery of usurious interest paid or other damages was afforded at common law. Coe v. Muller, 74 Fla. 399, 77 So. 88 (1917); Matlack Properties, Inc. v. Citizens & Southern Nat’l Bank, 120 Fla. 77, 162 So. 148 (1935). However, an action for the recovery of money as damages was among the class of cases in which the common law afforded a right of jury trial. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Waddell v. State ex rel. Meeks, 235 Ark. 293, 357 S.W.2d 651 (1962).

The right of action afforded by Section 687.04, Florida Statutes (1975) is a right of action for money damages, for which a jury trial is appropriate. It is insignificant to the determination of coun-terclaimants’ right to a jury trial that the right of action they assert is created by statute rather than by common law. If the rule were otherwise, claims for money damages based on modern legislation would be subject to denial of a jury trial, and the right to jury trial would shrink as time and legislation change the citizen’s rights of redress and access to the courts. Compare Fleitmann v. Welsbach Street Lighting Co., 240 U.S. 27, 29, 36 S.Ct. 233, 234, 60 L.Ed. 505, 507 (1916) (“[Wjhen a penalty of triple damages is sought to be inflicted [under the Sherman Act], the statute should not be read as attempting to authorize liability to be enforced otherwise than through the verdict of a jury in a court of common law.”); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504, 79 S.Ct. 948, 953, 3 L.Ed.2d 988, 994 (1959) (“[T]he right to trial by jury applies to treble damage suits under the antitrust laws, and is, in fact, an essential part of the congressional plan for making competition rather than monopoly the rule of trade . . . .”); Admiral Corp. v. Admiral Employment Bureau, Inc., 151 F.Supp. 629, 631 (N.D.Ill.1957) (“There exists the right to have the jury pass on the question of the willfulness of the violation [under the Lanham Trade-mark Act] before [a treble damage] award is made.”); Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444, 1448 (1943) (“The right to trial by jury is a basic and fundamental feature of our system of federal jurisprudence. . . . It is part and parcel of the remedy afforded railroad workers under the Employers’ Liability Act.”)

The filing of a compulsory counterclaim for relief cognizable at law in an action for equitable relief does not waive jury trial on the counterclaim issues. Hightower v. Bigoney, 156 So.2d 501 (Fla.1963).

The trial court’s order denying a jury trial on the usury counterclaim for money damages is REVERSED; but the interlocutory appeal is otherwise DISMISSED.

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


text:
    STATE of Florida, Appellant, v. Salvatore SGOBBO, Appellee.
    No. 77-334.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1977.
    Joseph P. D’Alessandro, State Atty., Louis S. St. Laurent, Chief Asst. State Atty., and Patricia A. Kerwin, Asst. State Atty., Fort Myers, for appellant.
    Robert R. Hagaman, of Schryver, Haga-man, Goodlette & Aaron, Naples, for appel-lee.
   PER CURIAM.

This appeal has been taken from a nonap-pealable order; however, we have elected to treat the appeal as a petition for writ of certiorari. Upon consideration and review, certiorari is denied.

GRIMES, A. C. J., and SCHEB and OTT, JJ., concur.


author: OTT, Judge.

text:
    HARLEY-DAVIDSON MOTOR COMPANY, INC., a corporation, Appellant, v. Paul CARPENTER, Appellee.
    No. 76-99.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.

      Clifford L. Somers of Burton, Somers & Reynolds, Tampa, for appellant.
    John W. Boult of Rood, Hapner, Boult & Dekle, Tampa, for appellee.
   OTT, Judge.

In this products liability case we affirm the $48,500 jury verdict below in favor of plaintiff/appellee. Several aspects of the case warrant comment.

Plaintiff/appellee was involved in three separate motorcycle accidents. The first two accidents occurred approximately 10 months apart and were on a motorcycle owned by the appellee and manufactured by the defendant/appellant. The second accident occurred on October 22, 1973 and was the basis for this suit against the appellant. The third accident occurred about eight months after the second accident, on a different motorcycle. The third accident produced the most obvious injuries of the three and for this reason became a factor in this action.

In February 1974, pursuant to the National Traffic and Motor Vehicle Safety Act, appellant issued a “recall letter” [and a follow-up not material herein] on the model machine owned and ridden by the appellee in the first two accidents which read, in relevant part, as follows:

Harley-Davidson Motor Co., Inc. has determined that a defect which relates to motor vehicle safety exists in the frame and tail lamp wiring of the [applicable] model.
Your motorcycle is one of those produced which may develop cracks at the welded frame connections near the rear fender and shock absorber support bracket. Frame breakage may occur in this location after a period of motorcycle operation and could result in poor handling, possibly causing loss of control of the vehicle and personal injury or property damage. This failure could occur without warning.
For this reason we urge you to contact your Harley-Davidson dealer and arrange to have your frame reinforced according to the latest production method by weldment of two support braces to the rear support bracket.

On September 26, 1974 this action was filed which essentially is a products liability action allegedly resulting from a manufacturer’s defect that was the proximate cause of the second accident and appellee’s personal injury.

The testimony of the appellee was sufficient to show that the defect described in appellant’s recall letter existed in the appellee’s motorcycle and proximately caused the second accident and resulting injuries.

Even though the recall letters were not admissible to show that the defect discussed existed in the particular motorcycle owned by the plaintiff or caused the accident, they were admissible to show that the defect existed in the hands of the manufacturer. Nevels v. Ford Motor Co., 439 F.2d 251 (5th Cir. 1971); Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okl.1976).

In essence, then, we have a situation in which we cannot say as a matter of law that the appellee failed to establish the elements needed to prove a products liability case.

Appellant urges that the amount of the verdict was excessive. In the recent case of Bould v. Touchette, 349 So.2d 1181 (Fla.1977) the supreme court held, as follows:

The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Lassiter v. International Union of Operating Engineers, 349 So.2d 622 (Opinion filed May 26, 1977).

While we were given pause by the amount of the verdict under the evidence in this case we cannot say that the amount offends this standard on appellate review.

Appellant strenuously urged on this appeal that the lower court erred in treating assumption of risk as “simply another facet of comparative negligence” rather than an absolute bar. This question is now settled adversely to the appellant by the recent supreme court opinion in the case of Blackburn v. Dorta, 348 So.2d 287 (Fla.1977) and this court’s opinion in Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976). In fairness to the appellant it should be pointed out that Blackburn was published subsequent to its appeal and argument before this court.

We fail to find reversible error and therefore affirm the judgment of the trial court.

BOARDMAN, C. J., and GRIMES, J., concur.


text:
    Willie Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 76-680.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

See Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Roundtree v. State, 350 So.2d 32 (Fla. 2d DCA 1977), opinion filed September 23, 1977.

BOARDMAN, C. J., and SCHEB and OTT, JJ., concur.


text:
    CRYSTAL PROPERTIES, INC., Appellant, v. FLORIDA INDUSTRIAL CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellee.
    No. 76-1637.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    D. J. Bradshaw, of Bradshaw, Wagner & Mountjoy, Inverness, for appellant.
    Michael Sierra, P. A., Tampa, for appel-lee.
   PER CURIAM.

This is an appeal from a summary judgment of mechanic’s lien foreclosure. The only point of merit relates to the award of attorney’s fees.

The final judgment includes a $7,500 attorney’s fee, presumably based upon an attorney’s affidavit which was submitted following the hearing on the motion for summary judgment. There was no showing that the parties agreed to waive the adversary proceedings otherwise required to determine the amount of a reasonable attorney’s fee. See Ellis v. Barnett Bank of Lakeland, 341 So.2d 545 (Fla.2d DCA 1977); Siciliano v. Hunerberg, 135 So.2d 750 (Fla.2d DCA 1961).

Accordingly, that portion of the judgment awarding attorney’s fees is reversed, and the cause is remanded for further proceedings to set a reasonable fee; otherwise, the judgment is affirmed.

BOARDMAN, C. J., and GRIMES and OTT, JJ., concur.


text:
    Wallace R. NICKSE, as Administrator of the Estate of David M. Nickse, a deceased minor, Appellant, v. SCHOOL BOARD OF PINELLAS COUNTY, Florida and Aetna Life & Casualty Company, Appellees.
    No. 77-215.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellant.
    Mark Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellees.
   PER CURIAM.

Reversed. See Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975).

HOBSON, Acting C. J., and SCHEB and RYDER, JJ., concur.


text:
    William L. HENDRIX, as administrator of the Estate of William L. Hendrix, Jr., Plaintiff, v. CITY OF TAMPA and Insurance Company of North America, Defendants.
    No. 77-308.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    Robert Orseck of Podhurst, Orseck & Parks, P. A., Miami, and John J. McLaughlin of Wagner, Cunningham, Vaughan & Genders, Tampa, for plaintiff.
    William T. Keen and Thomas Morrison, Asst. City Attys., Tampa, for defendants, City of Tampa.
   PER CURIAM.

In the exercise of our discretion and within the purview of Fla.App. Rule 4.6, we decline to answer the question certified by the trial court.

BOARDMAN, C. J., and McNULTY and OTT, JJ., concur.


text:
    Carroll OLLER, Appellant, v. STATE of Florida, Appellee.
    No. 77-356.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    Jack 0. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed.

The judgment and sentence, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.-161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of sentence; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


author: RYDER, Judge.

text:
    Belton Donald CHAMBERLIN and Beth Morean, Appellants, v. MID-CENTURY INSURANCE COMPANY, a Foreign Corporation, Robert Donnelly and Aetna Casualty & Surety Company, Appellees.
    No. 77-699.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    William D. Keith of Monaco & Cardillo, Naples, for appellant Chamberlin.
    G. Holdt Garver of Thomas & Garver, Naples, for appellant Morean.
    Kempton P. Logan of Henderson, Franklin, Starnes & Holt, Fort Myers, for appel-lee Mid-Century.
   RYDER, Judge.

Appellant/defendant/cross-defendant Chamberlin and appellant/plaintiff Morean appeal from an order denying Chamberlin’s motion to vacate default.

Appellant/plaintiff Morean had filed a complaint for personal injuries as a result of an automobile accident against Robert Donnelly, Chamberlin and Chamberlin’s alleged insurance carrier Mid-Century Insurance Company. Subsequent thereto, More-an obtained defaults against the two individual defendants. Mid-Century Insurance Company answered, denying coverage of Chamberlin.

On October 3, 1976 Morean and Mid-Century entered into a stipulation allowing Mid-Century to file a cross-claim against Chamberlin. We wish to observe at this juncture that our decision here does not preclude plaintiffs right under this stipulation to proceed accordingly against Mid-Century. The circuit court approved the stipulation on October 5, 1976 and granted Mid-Century leave to file the cross-claim against Chamberlin. Mid-Century filed the cross-claim on November 22, 1976 and obtained constructive service of process on Chamberlin in Michigan.

Mid-Century, on December 16, 1976, moved for entry of a default against Cham-berlin for his failure to file or serve any papers in response to the cross-claim and default was entered on December 17, 1976.

In the first week of February 1977, Chamberlin returned to Florida and employed counsel to represent him for the first time. On February 21, 1977, counsel for Chamberlin filed a motion to vacate the default on three grounds, one of which was that the entry of the default was not the result of gross negligence by Chamberlin but because he was not represented by legal counsel. By order of March 25, 1977 the court below denied the motion to vacate the default finding that no evidence of excusable neglect was presented. Chamberlin moved for a re-hearing and said motion was denied on May 4, 1977 from which comes this interlocutory appeal.

Chamberlin urges this court to reverse stating that Florida law is liberal in its policy towards vacating defaults. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).

Appellant’s position is well taken at the trial court level. However, the trial court, after a hearing and consideration of all facts and evidence before it, determined not to vacate the default and the test at the appellate level on this point is as urged by the appellee as also stated by the North Shore court at page 852. Here, the Florida Supreme Court in correcting the 3rd District Court of Appeal on this very point reiterated its position that to reverse a trial court’s ruling on a motion to vacate, on appeal, a showing of gross abuse of the trial court’s discretion is necessary. See also the Supreme Court’s latest discussion of this point in Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977).

After consideration of the record on appeal, the briefs and arguments, we conclude that the trial court below did not grossly abuse its discretion and, therefore, we must affirm.

Affirmed.

GRIMES, Acting C. J., and OTT, J., concur.