author: BOWEN W. SIMMONS, Retired Circuit Judge. BOOKOUT, Judge,

text:
    James A. PEARSON v. STATE.
    8 Div. 30.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    James D. Walker, Albertville, for appellant.
    William J. Baxley, Atty. Gen., and Susan Beth Farmer, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent at nisi prius and here, was indicted for assault with intent to ravish. A jury convicted him on his plea of not guilty. The trial court fixed the punishment at fifteen years imprisonment. This appeal is from a judgment entry. The alleged assault took place on June 20, 1977, at about 8:35 A.M., in a beauty salon in Albertville, Alabama. The prosecutrix was alone in the back room of the beauty salon when someone grabbed her from behind. The assailant held her in such a way that her observation of assailant was limited. But, she was able to see that he was a tall negro male and was wearing a beige colored toboggan.

It further appears that the victim screamed and attracted the attention of Mr. Tony Duke, in an insurance office next door. Mr. Duke surprised the assailant who immediately fled.

Mr. Duke testified that he chased the assailant for several blocks to the edge of the negro community in Albertville. He gave up pursuit when the assailant disappeared from view behind a house, subsequently identified as defendant’s residence.

Mr. Duke testified about seeing defendant as he passed before the front window of his office. Defendant was walking in the direction of the beauty salon next door. This witness also identified the defendant as the same man he had seen through his office window and the one he had chased.

Being alerted with respect to the assault, Albertville City Detective Tommy Cole and Mr. Lee Locklear, another Albertville city police officer, met Mr. Duke, who was returning from the chase. Mr. Duke, and the two officers proceeded to the point where the chase ended. Mr. Duke pointed out the direction in which his assailant had fled. Mr. Duke described him to the officers as a tall black male, wearing a tan toboggan, and a bluish, brownish, “mingly” shirt. The officers went on alone, on foot, through a wooded area and a vacant lot into the backyard of a house, later identified as defendant’s residence.

On the backsteps of this house, Officer Cole found a shirt and a toboggan which he seized. It appears from the evidence that these articles of clothing were in plain view of Officer Cole when he saw and seized them.

Outside the presence of the jury, Officer Cole testified that at that point the officers were approached by Mr. Curtis Hicks, who lived next door to the subject’s house. Mr. Hicks told the officers that his mother and his nephew, the defendant, resided in the house, and that neither was at home. With Mr. Hick’s permission, the officers entered the house and seized other items which were excluded from consideration of the jury. Officer Cole admitted that he never obtained a warrant to search the premises.

Officer Cole also testified that later on the same day he showed the items of clothing to Mr. Duke, who identified them as “like” the clothing worn by defendant. The shirt and toboggan were introduced into evidence over defendant’s objection that these items were the fruits of an illegal search. The objection was overruled.

It appears from the evidence that Mr. Louie Townson, Chief of the Albertville Police Department, testified that on June 20, 1977, at about 9:00 A.M., he received a report over his car radio about the incident. He states that the assailant was described as a negro male, brown in color, and wearing tan clothing, and last seen in the vicinity of the Curtis Hicks home. He stated that he immediately went to the Hicks’ home where he saw defendant and took him into custody. At that time, defendant was wearing blue jeans, cut short, with no shirt.

Defendant rested his case without taking the witness stand, or calling up any other witness. After deliberation the jury returned a verdict of guilt. The trial court entered judgment.

ON THE MERITS

Appellant here complains that the seizure of the toboggan and shirt, lying in plain view on the steps of defendant’s home, was without authority of law because the officers entered the curtilage of the home without authority of law.

We are not impressed that the entry into the curtilage was a trespass and that the seizure which followed such entry was illegal.

We think it is clear from the evidence that the seizing officers were making an investigation of the alleged crime that had been reported to them by Mr. Duke and entered the premises from a vacant lot in furtherance of the investigation. They obtained permission from defendant’s uncle to enter the dwelling house on the premises, and no doubt were impressed that such permission was sufficient to enter the building. But the items found after such entry were not admitted in evidence.

The Supreme Court, in Alexander v. State, ex rel Carver, 274 Ala. 441, 150 So.2d 204 (1963) observed:

“ * * * a policeman has the duty of not only enforcing municipal ordinances or bylaws, but he has the responsibility of enforcing state criminal laws and is charged with the duty of making arrests for such violations.”

The Supreme Court of the United States, in Coolidge v. New Hampshire, 403 U.S. 443, at p. 466, 91 S.Ct. 2022, at p. 2038, 29 L.Ed.2d 564, observed:

“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a .search directed against the accused — and permits the warrantless seizure. * * *”

It appears to us that the officers had a legitimate reason to go on the premises and look around for any clues in their efforts to solve the criminal incident of which they were informed. They had no authority to enter the house and rummage around. No rummaging search was undertaken in the yard for secluded or hidden items, so far as the evidence reveals. The entry revealed the clothing in plain view on the steps. The discovery was incidental to the investigation.

Under the circumstances we are unwilling to say that the officers were restricted in their investigation and could not enter the curtilage for any purpose. The entry per se was legitimate and the seizure of the clothing (in plain view) was lawful.

The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge,

concurring specially:

From a vacant lot adjoining the appellant’s premises, the officers could see the items of clothing lying in plain view on the back steps of appellant’s residence. Their initial discovery of that evidence was therefore not illegal or the results of an unreasonable “search” in violation of the Fourth Amendment. They were not therefore required to obtain a search warrant in order to cross the invisible property line into appellant’s open back yard to retrieve the clothing lying in an open area. The Fourth Amendment protects people, not simply places. The appellant had no expectation of privacy in that area of his back yard open to view to any passers-by. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). I therefore would assign the foregoing as additional authority for the warrantless seizure of the clothing in question.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Thomas CUMMINGS, alias Nieko Cummings v. STATE.
    8 Div. 34.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    Dave L. Beuoy, Russellville, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Thomas Cummings, alias Nieko Cummings, was indicted for the second degree burglary of Voss Grocery, situated at 700 Waterloo Road, Russellville, Alabama, the property of Lee Voss. The jury found the appellant “guilty as charged in the indictment,” and the trial court entered judgment, setting sentence at five years imprisonment. The appellant’s motion for a new trial, challenging the weight and sufficiency of the evidence, and averring that such was “contrary to law,” was overruled following a hearing thereon.

Lee Voss testified that on March 29,1977, he owned Voss Grocery Store, located at 700 Waterloo Road in Russellville, Alabama. Mr. Voss indicated that he closed his business at 6:00 p. m. on Tuesday, March 29, 1977, and locked the door and windows. He related that the windows were on either side of the front door and they had multiple glass panes in them. None of these were broken when he left the store. From the record (R. p. 30):

“Q. Mr. Voss, how did you come to know that there had been a break-in there at the store?
“A. The next morning when I opened at 6:30 in the morning and entered the store, I noticed my cigarette rack was empty and I glanced at the windows and found one of the panes had been removed from the frame.”

Mr. Voss stated that the cigarette rack is against the front wall with the right edge near the window. He stated that the glass had been completely removed from one of the panes, including the putty, and pieces of glass were lying on the ground outside with a few small particles inside the store.

Mr. Voss indicated that he maintained an inventory of items within the store, and that missing was a personal radio of the value of about $30.00, and also the following (R. p. 31):

“A. There was, also, approximately 50 cartons of cigarettes missing, various pieces of jewelry, some hearts and star necklaces, a gold ball necklace, a number of lighters were gone. Every lighter we had in the place was gone. We found food stuff gone and as best we could estimate, there was about a stick and a half of baloney and various packages of ham and other lunch meats, cheese, potato chips, bread, some cakes and candy, gum, soft drinks, all were missing.
“Q. What would be the total and combined value of all those items?
“A. Approximately, $490.00.
“Q. Mr. Voss, were any of these items marked by you? Were any kind of marks on them that indicated Voss Grocery? “A. No sir, nothing other than, say we had recovered any meat I possibly could have identified the marking on the meat packages.
“Q. As far as cigarettes, for instance, were there any particular distinguishing marks on the cigarettes?
“A. No sir.”

Mr. Voss was then shown State’s Exhibit No. 1, a radio, which, he stated, had belonged to him for approximately eight years and was inside the store when he closed about 6:00 p. m. on March 29,1977, and was missing the following morning when he unlocked the store at 6:30 a. m. He stated the break-in occurred on Tuesday night, and that on Friday, April 1, 1977, one Ray Smith brought the radio in question to his store. While Voss talked with Smith, Captain Burns Saint, a police investigator, drove up and Voss turned the radio over to him.

Mr. Voss indicated he knew the appellant, Thomas “Nieko” Cummings, and that Cummings’ sister, Melissa, lived on College Avenue, about one block from the store. Voss indicated that Cummings was “a fairly regular customer of his store.”

On cross-examination, Voss indicated that he did not have an exact inventory of the missing items, but had made his “best estimate.” He further stated that it was possible that Cummings may have handled merchandise inside the store as from time to time he made purchases. Voss indicated that the broken pane was approximately twelve inches long by about sixteen inches wide, that it was from a window which was about chest high, being four or five feet from the ground.

On redirect Mr. Voss indicated that the radio was the only missing item, which was subsequently recovered and returned to him.

Captain Burns Saint of the Russellville Police Department stated that he was working as an investigator on March 29-30, 1977. He indicated that he received a call shortly after 7:00 on the morning of March 30, 1977, and drove to Voss’ store. In examining the premises, he noticed there were two windows on each side of the front door, and that on the north side of the door, one of the window panes was broken out. He indicated there was glass on the ground and a little inside the store, and that one piece of glass was still in the window. Captain Saint indicated that on Friday, April 1, 1977, he stopped by the store and Mr. Voss handed him a black radio which he identified as State’s Exhibit No. 1, that this radio had been in his possession since April 1, 1977, until the date of trial. Officer Saint also indicated that he received a list of missing items from Mr. Voss.

Officer Saint indicated that during his investigation he talked with the appellant, Thomas “Nieko” Cummings, and that Cummings’ sister’s home (Melissa Green) was located on College Avenue, one block directly behind Voss Grocery.

Officer Saint also stated that he and Police Officer Terrell Potter lifted several “latent fingerprints” from the piece of glass still in the window and also from some of the glass on the ground directly beneath the window.

Ray Smith testified that he lived at East-side Apartments, and that he was nineteen years of age in March, 1977. Smith testified that the first time he saw the radio in question it was on an automobile seat between two young males, Thomas “Nieko” Cummings and Ricky Pounders. Smith indicated he did not know which of them claimed the radio, but they offered to sell it to him for $2.00, and that he put $2.00 on the automobile seat, that Cummings picked it up, and he then drove around in his automobile, a 1966 Ford, with Cummings and Pounders. This occurred “around the end of March, 1977.” Smith indicated that neither Cummings or Pounders stated where the radio came from. He stated that there was no discussion concerning a break-in at Voss Grocery in his presence.

Smith related that when he picked up Cummings and Pounders they drove around a while and he then dropped them about one block from the grammar school, which was in the vicinity of College Avenue. Smith indicated that he came back by a short time later and the two men were walking down the street, that they then got in the car with him. He stated that Cummings and Pounders told him they were “going to let Jimmy Washington have it until that weekend and they were going to pick it back up.” At this time Smith “laid $2.00 on the seat and told them he would take it” (R. p. 43).

Smith also stated that “Well, Buckshot and me talked about it and then he told me to take it to Mr. Voss” (R. p. 49). Smith stated that he learned of the break-in at Voss Grocery “about a day later” and took the radio to Mr. Voss. Smith stated that Captain Saint and Mr. Potter, a district attorney investigator for Franklin County, were at Voss Grocery on April 1, 1977, when he turned the radio over to Mr. Voss.

Terrell Potter stated that he was an investigator for the Franklin County District Attorney on March 29-30,1977, and that he investigated a break-in at Voss Grocery. In the presence of Captain Burns Saint, he examined a window which was broken and noticed a small piece of glass in the corner of the window, and the remainder of the glass on the ground outside the window. He also found a small piece of glass inside the store. Potter lifted latent fingerprints from the piece of glass still in the window frame and from the glass on the ground outside.

In response to inquiry, Potter indicated that he had lifted probably 200 or 300 latent fingerprints, that he had taken a course and had been certified by the State of Alabama as a competent fingerprint examiner. Potter then stated that he made “two lifts” from the piece of pane in the frame and got “some ridge detail.” He also lifted some prints from a piece of glass on the ground outside the window. Mr. Potter then identified three pieces of plastic, which were jointly identified as State’s Exhibit No. 2. They contained the latent fingerprints which he had lifted from the glass. Potter stated that these items from Exhibit No. 2 remained in his custody until April 7, 1977, when they were turned over by him to Lieutenant Denver T. Tidwell of the Alabama Bureau of Investigation.

Potter also stated that he recognized State’s Exhibits Nos. 3, 4, and 5 as being “known prints” which he also turned over to Lieutenant Tidwell on April 7, 1977.

Captain Burns Saint was then recalled and stated that he had Franklin County Jailer Mike Robinson make some prints of the appellant which were turned over by him to Investigator Terrell Potter.

Franklin County Sheriff’s Jailer Mike Robinson stated that on April 7, 1977, as part of his duties, he made fingerprints of the appellant, Thomas “Nieko” Cummings. He then identified State’s Exhibits Nos. 3, 4, and 5 as being the prints which he made of Cummings on this date. On this same date, these prints, which were placed on the fingerprint cards, were turned over by him to Captain Burns Saint, who in his presence turned them over to Investigator Denver T. Tidwell.

Denver T. Tidwell stated he was an investigator for the Alabama Bureau of Investigation in April, 1977, and he had been such for six years. On April 7, 1977, he “received three latent fingerprint lifts and three fingerprint cards” from Captain Burns Saint. He identified his mark on State’s Exhibits Nos. 2 through 5. Mr. Tidwell then delivered these items to Mr. John Kilburn at the State Toxicology Laboratory in Florence.

State Toxicologist John Kilburn testified that he received State’s Exhibits Nos. 2 through 5 from Investigator Denver T. Tid-well and placed his identification number, 144179FL, on these items. He stated that these exhibits remained in his care and custody except for being sent by certified mail to the Identification Division Office in Montgomery, and that they were returned by the Montgomery Laboratory by certified mail to him on October 1, 1977, that the items had remained in his care until being presented in court.

Mrs. Mary Etta Prevost testified that she was a latent print examiner for the Department of Public Safety in the Identification Unit in Montgomery, Alabama. She stated that she had made an examination of State’s Exhibits Nos. 2, 3, 4, and 5, having received these from Mr. John Kilburn on September 19, 1977. Mrs. Prevost testified that she had completed a training course with the FBI in Washington and worked as fingerprint examiner under the supervision of Mr. R. G. Whitman, FBI Latent Fingerprint Supervisor, for many years. She stated that she had been called upon to examine several hundred thousand fingerprints for comparison during her service with the FBI and later with the Alabama Department of Public Safety. From the record (R. p. 75):

“I’ll ask you if you compared the Latent Fingerprints on State’s Exhibit 2 with the fingerprints on the card marked State’s Exhibit 3?
“A. Yes sir, I did.
“Q. Now what was the result of your comparison, Mrs. Prevost?
“A. Well, I have marked these Latent numbers on the Exhibit 2 and I found that Latent Number 1—
“Q. Pardon me, you said you had marked them, so you have indicated Latent Number 1?
“A. Yes, it is identical with the right ring finger impression on the fingerprint card bearing the name of Thomas Earl Cummings.
“Q. Using State’s Exhibit 3, which one would that correspond with?
“A. Right ring finger, this one here. Latent Number 2 is identical with the right middle finger impression.
“Q. Which one would that be?
“A. That one right there.
“Q. And what about that one marked Latent Number 3?
“A. That is identical with the left index finger.
“Q. Which one would that be?
“A. This one.”

Mrs. Prevost also stated that she had made some enlargements from this fingerprint identification, and she then identified the enlargements, which were marked as State’s Exhibit 6. Mrs. Prevost then indicated that she found “twenty-five points of comparison, which were more than ample for comparison purposes.” Mrs. Prevost then stated that “the prints lifted from the glass and those on the fingerprint cards were identical.”

The appellant then moved to exclude the State’s evidence for failing to make out a prima facie case, which was overruled.

Mrs. Melissa Green stated that she was the sister of Thomas “Nieko” Cummings and lived with her children at 702 College Avenue in Russellville on March 29-30, 1977. She stated that her brother, “Nieko” Cummings, came in about 5:30 on the afternoon of March 29, and he left about 6:30 with Ricky Pounders, that they told her they were going to the “pool room.” She stated that she saw her brother come in between 9:00 and 10:00 o’clock that night, that he went to bed shortly thereafter, and that he did not leave the house after 10:00 on the night of March 29, 1977.

Ricky Lee Pounders testified that he was sixteen years of age and lived with his mother at Route 6, Box 320, in Russellville, on March 29, 1977. He stated that he and Thomas “Nieko” Cummings were good friends, and that on Tuesday, March 29, 1977, he went by “Nieko’s” home around 4:00 that afternoon, that Cummings lived with his sister, Mrs. Melissa Green, on College Avenue. Pounders stated that he and “Nieko” went to the pool room and to the ball park, then returned to “Nieko’s” home about 10:00 that evening. Pounders denied going to Voss Grocery Store, or knowing anything about the break-in, which occurred at the store on the night of March 29, 1977. Pounders denied knowing anything about a radio that was sold to Ray Smith the latter part of March, 1977, and which was marked as State’s Exhibit 1.

On cross-examination, Pounders stated that during March and early April he and Cummings were together most evenings, and they frequently went to the pool room to play pool. Pounders indicated that Captain Burns “Buckshot” Saint told him about the break-in when he came by to talk with him, but he denied ever having been with Cummings and Ray Smith together. Pounders further stated that Cummings was working at the Barclift Furniture Company during this time.

The State then recalled Terrell Potter and Burns Saint, both of whom testified that Ricky Pounders general reputation in the community was “bad” and that his reputation for truthfulness was “bad.”

I

The appellant contends the State failed to prove a prima facie case of burglary, which established the appellant’s guilt.

Identity may be established by either direct or circumstantial evidence. Dentman v. State, 267 Ala. 123, 99 So.2d 50.

In the case at bar, expert testimony from Mrs. Prevost clearly established that prints on the window glass lifted by Mr. Terrell Potter from the window frame at Voss Grocery Store and additional lifts made from glass found on the ground outside the window on the morning of March 30, 1977, were identical to the fingerprints of appellant made at the Russellville Jail following his arrest on April 7, 1977. This evidence was clearly a circumstance to be considered by the jury, together with all other circumstances on the question of the appellant’s guilt. Little v. State, (Ala.Cr.App.) 356 So.2d 379, 1978; and Scruggs v. State (Ala.Cr.App.), 6 Div. 560, March 21, 1978.

Further, the radio, which was positively identified by Mr. Voss as being missing from his grocery store following the break-in on March 29, 1977, and returned to him by Ray Smith on Friday, April 1, 1977, was an additional circumstance for the consideration of the jury in establishing the appellant’s guilt. Smith testified that he purchased this radio for $2.00 from Cummings and Ricky Pounders. This testimony was properly admitted by the trial court for consideration by the jury, together with all other circumstances on the question of appellant’s guilt. See Dardy v. State, Ala.Cr.App., 347 So.2d 584; Thomas v. State, 57 Ala.App. 320, 328 So.2d 321; Hall v. State, 57 Ala.App. 132, 326 So.2d 660; and Vaughn v. State, 57 Ala.App. 134, 326 So.2d 662.

II

Appellant contends that error occurred during the cross-examination of Ray Smith, wherein counsel sought to impeach the witness. The colloquy wherein this occurred is on R. p. 52:

“Q. O.K., you say you bought this radio, is that correct?
“A. Yes.
“Q. Did you have any idea at the time you bought it that this radio was allegedly stolen?
“A. No.
“Q. Do you know buying stolen property is a crime?
“A. Yes.
“Q. And if in fact this radio was stolen and you bought it you then committed a crime, is that correct?
“MR. JOLLY: Objection, Your Honor, this is past the scope of Cross Examination.
“THE COURT: I sustain.
“Q. And I believe your testimony was, you had no conversation with Nieko Cummings relating to a break-in at Voss Grocery, is that correct?
“A. Not at the time. Well, we was riding around, we was just riding and listening to music and I let them out and later picked them back up and we rode up and down through town some.”

As may be seen in examining the above colloquy, Smith admitted that he bought the radio, but at the time did not know that the radio was allegedly stolen. He also testified that he knew purchasing stolen property was a crime. The next question, to which the State’s objection was sustained, was clearly beyond the scope of cross-examination and was moreover repetitious of matters already admitted by the witness Smith. Clearly, therefore, no error occurred. We are therefore of the opinion that the appellant’s right of cross-examination was not here unduly restricted. See § 12-21-137, Code of Alabama 1975; Wright v. State, 49 Ala.App. 539, 274 So.2d 95; Browder v. State, 54 Ala.App. 369, 308 So.2d 729, cert. denied 293 Ala. 746, 308 So.2d 735.

We have carefully examined this record and find no error therein. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: KARL, Justice.

text:
    Ray Robert MOXLEY et ux., Appellants, v. The WICKES CORPORATION, etc., Appellee.
    No. 51277.
    Supreme Court of Florida.
    Jan. 26, 1978.
    Rehearing Denied April 17, 1978.
    Andrew J. Britton of Korp, Wheeler & McGill, Venice, for appellants.
    Stephen E. Tanner of the Law Offices of W. Eugene Williams, Jr., Venice, for appel-lee.
   KARL, Justice.

This cause is before us on direct appeal to review the decision of the District Court of Appeal, Second District, in The Wickes Corp. v. Moxley, et al., 342 So.2d 839 (Fla.2d DCA 1977), which construes a provision of the state constitution, thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

The sole question involved in the instant cause is whether there is no longer a requirement under the Constitution of Florida that a mortgage of homestead realty be signed in the presence of two attesting witnesses. The District Court, construing Article X, Section 4(c), Florida Constitution (1968), held that such requirement no longer existed.

Appellant, Ray Moxley, was a mobile home dealer who sold mobile homes manufactured by appellee, The Wickes Corporation. Appellant sold several mobile homes in 1974 but failed to pay appellee for the monies owing on these units. To resolve their financial difficulty, appellant and his wife executed a promissory note for the indebtedness and gave appellee a second mortgage, which was not signed in the presence of two witnesses, on their home to secure the indebtedness. Subsequently, the note went into default, and appellee foreclosed. The parties agreed that the property had homestead status for purpose of the foreclosure proceedings although the home was owned by appellants as tenants by the entirety. The trial court declared the mortgage invalid because it was not actually signed in the presence of two witnesses but entered summary judgment for appel-lee on the note.

On appeal to the District Court of Appeal, appellee argued that under the new constitution, there is no longer any requirement that a mortgage of homestead realty be signed in the presence of two attesting witnesses. The District Court agreed with appellee and reversed the trial court. The District Court explained that there is no statute in Florida which specifies that a mortgage be signed in the presence of two witnesses, and there is no common law requirement that a mortgage of non-homestead property be witnessed. The court, however, recognized that the words “duly executed” found in Article X, Section 4, of the old Constitution had been interpreted to mean that two attesting witnesses were required on a homestead mortgage just as in executing a deed. Observing that the language of the new provision has been rephrased as an authorization to alienate homestead rather than an exception to a restriction against alienation and that the words “duly executed” have been omitted, the District Court concluded:

“ . . . [W]e believe that the omission of the words ‘duly executed’ in the new Constitution must be given effect to the extent that the court engrafted requirements of two witnesses on a homestead mortgage must give way. The legislature may always pass a law to reinstitute this requirement.”

We agree with the decision of the District Court and adopt it as the opinion of this Court.

Accordingly, the decision of the District Court is affirmed.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and DREW (Retired), JJ., concur.

      . Property owned as a tenancy by the entireties can acquire homestead status for purposes of exemption from taxation. Art. VII, § 6(a), Fla. Const. Although not expressly provided for in the Constitution or statutes, it appears that such property can qualify for the homestead exemption from forced sale and levy authorized by Art. X, § 4(a)(1), Fla.Const. § 222.19, Fla. Stat. (Supp.1976), provides that the “head-of-family status” required for the forced sale and levy exemption “. . . shall inure to the benefit of the surviving tenant by the entirety ..” (Emphasis supplied.) However, homestead property for purposes of descent and distribution does not include property owned by the decedent and the surviving spouse as tenants by the entireties. This prohibition is found not only in the express language of § 732.401(2), Fla.Stat. (1975), but also by virtue of the wording of Art. X, § 4(c), Fla. Const.

        Kinney v. Mosher, 100 So.2d 644 (Fla. 1st DCA 1958), is sometimes cited for the proposition that property owned as a tenancy by the entirety can never acquire any of the rights accorded homestead property. A study of Kinney, supra, reveals that by its own facts, it is limited to discussions of whether property held as a tenancy by the entirety is homestead for purposes of descent and distribution.


author: PER CURIAM.

text:
    EXCHANGE NATIONAL BANK OF TAMPA, Petitioner, v. Harry SCHOOLEY et al., Respondents.
    No. 50529.
    Supreme Court of Florida.
    March 16, 1978.
    Rehearing Denied April 5, 1978.
    Howard S. Rhoads and Harold N. Hume, Jr. of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for petitioner.
    Jeffrey R. Garvin of Moorey, Seals & Garvin, Fort Myers, for respondents.
   PER CURIAM.

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

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.


author: SUNDBERG, Justice. BOYD, Justice,

text:
    Denise TATZEL, Appellant, v. STATE of Florida, Appellee.
    No. 51265.
    Supreme Court of Florida.
    March 16, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Assistant Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   SUNDBERG, Justice.

This cause has been transferred to us by the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County. Because the Judge of the County Court initially and directly passed on the constitutionality of Section 796.07(3)(c), Florida Statutes (1975), by ruling that the statute was not unconstitutionally vague, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

At approximately 12:20 a. m. on January 9, 1975, a detective of the City of Tampa Police Department observed appellant, Denise Tatzel, and a male enter a room in the Harbor Lite Motel. Five minutes thereafter the detective observed, through some open curtains, appellant lying or sitting on the bed clothed only in her brassiere and panties. The officer then entered the room, arrested appellant and her companion, and advised them of their Miranda rights. Ms. Tatzel informed the detective that she had known her companion for quite some time, but later stated that she did not know his name when the officer inquired as to the man’s identity. Appellant’s companion responded similarly to an inquiry regarding appellant’s identity. When appellant was asked if she was a prostitute, she replied in the affirmative. Appellant was issued a summons charging that she “did enter, occupy or remain in Room # 5 of the Harbor Lite Motel for the purpose of lewdness, assignation and prostitution” in violation of Section 796.07(3)(c), Florida Statutes (1975). Appellant filed a motion to dismiss the action, alleging that “the charge is unconstitutional for reasons of vagueness.” Relying upon this Court’s decision in Bell v. State, 289 So.2d 388 (Fla.1973), which held that the term “lewdness” in Section 796.07 was not unconstitutionally vague, the trial judge denied the motion to dismiss. At a nonjury trial appellant was found guilty as charged.

Prior to sentencing, appellant filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida, alleging that Section 796.-07(3)(c), Florida Statutes (1975), was unconstitutional. The Middle District held that appellant did not have to exhaust her state remedies and stayed all proceedings against appellant in the state court, including sentencing, until further order of the court.

Thereafter, the United States Court of Appeals for the Fifth Circuit reversed the order of the District Court, directing that appellant exhaust her state remedies. The Fifth Circuit noted that appellant was charged under a statute prohibiting lewdness, assignation and prostitution. However, the court determined that it was unclear whether appellant was found guilty of violating each element of the statute or only one. If she was, in fact, found guilty of either prostitution or assignation, then whether the statute as applied to her was constitutional was not decided by this Court in Bell v. State, supra, which merely held that the term “lewdness” was not unconstitutionally vague.

Subsequent to dismissal of appellant’s petition for writ of habeas corpus, the county judge erroneously adjudicated appellant guilty of offering to commit prostitution in violation of Section 796.07(3)(a), Florida Statutes (1975), rather than of “entering] . [a] structure, ... for the purpose of prostitution, lewdness, or assignation” under subsection (3)(c) of the statute, as charged. After appellant’s appeal was lodged in this Court, we relinquished jurisdiction, permitting the trial court to amend the judgment to adjudicate appellant guilty as charged under subsection (c) of the statute.

Appellant correctly points out that there was no evidence in this case of solicitation of payment for sexual favors. Section 796.-07(3)(c) prohibits, Inter alia, entering a structure for the purpose of committing prostitution. However, subsection (l)(a) of the statute defines prostitution, in part, as “licentious sexual intercourse without hire.” Appellant contends that the term “licentious” does not give persons of ordinary intelligence sufficient notice of the specific conduct proscribed by subsection (3)(c) of the enactment and, therefore, subsection (3)(c) is unconstitutionally vague. We do not accept appellant’s proposition and, for the reasons hereinafter enunciated, affirm the trial court’s ruling.

It is a basic rule of statutory construction that words of common usage, when used in an enactment, should be construed in their plain and ordinary sense. Pedersen v. Green, 105 So.2d 1 (Fla.1958); American Bankers Life Assurance Company of Florida v. Williams, 212 So.2d 777 (Fla. 1st DCA 1968); Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 1st DCA 1963). The dictionary defines “licentious” as:

[Disregarding accepted rules and standards; morally unrestrained, especially in sexual activity.

Webster’s New World Dictionary (2d ed. 1976).

Black’s Law Dictionary (Rev. 4th ed. 1968) defines “licentiousness” as follows:

The indulgence of the arbitrary will of the individual, without regard to ethics or law .

Licentious sexual intercourse as proscribed by Section 796.07(3)(c), then, is that which is without regard to and, therefore, is in violation of, the law. As appellant recognizes, Section 798.03, Florida Statutes (1975), prohibits fornication, which is defined as sexual intercourse between an unmarried man or a married man and an unmarried woman. See DeLaine v. State, 262 So.2d 655 (Fla.1972). Consequently, if an unmarried or married man and an unmarried woman engage in sexual intercourse without hire, they have committed fornication in violation of Section 798.03, Florida Statutes (1975). Since their illicit sexual intercourse would be in violation of Section 798.03, their carnal union would be “without regard to law” and would thus constitute “licentious sexual intercourse without hire” as defined in Section 796.07(l)(a), Florida Statutes (1975), and proscribed by subsection (3)(c) of the enactment.

Appellant suggests that even if Section 796.07(3)(c) is not unconstitutionally vague, the evidence presented at trial was insufficient to sustain her conviction under subsection (3)(c) for “enterpng] . [a] structure, ... for the purpose of prostitution, lewdness, or assignation.” We do not agree with this contention. The arresting officer testified concerning his observation of appellant on a bed in a state of partial undress with a male whose identity she did not know, a few minutes after entering a motel room shortly after midnight, and appellant’s admission that she was a prostitute. This testimony constituted sufficient circumstantial evidence to support a finding that appellant entered the Harbor Lite Motel for the purpose of engaging in licentious sexual intercourse without hire and, therefore, was guilty of violation of the statute.

It has been forcefully argued that due to the frequency with which individuals in our contemporary society engage in illicit sexual intercourse which amounts to violation of the law proscribing fornication, it is unreasonable for the State to label that same conduct prostitution with its accompanying connotation. It is urged that these “contemporary persons” unwittingly can become stigmatized out of proportion to their conduct. However, there is no prohibition upon the State classifying the same type of conduct as constituting more than one offense. In such instance, discretion is vested in the State to determine for which offense a prosecution will be made. McDowell v. State, 160 Fla. 588, 36 So.2d 180 (1948); Campbell v. State, 155 Fla. 359, 20 So.2d 127 (1944); McConnell v. State, 298 So.2d 550 (Fla. 2d DCA 1974).

From a policy standpoint, even assuming the merit of appellant’s argument, it is not the province of this Court to vary the clear legislative intent expressed in a statute merely because of our belief as to the lack of wisdom of the enactment. See McDonald v. Roland, 65 So.2d 12 (Fla.1953); Vocelle v. Knight Brothers Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960). If the citizens of our state believe that Section 796.-07(3)(c) is an unwise law, the proper forum in which to seek change is the legislature.

For the reasons herein stated, the ruling of the trial judge upholding the constitutionality of Section 796.07(3)(c), Florida Statutes (1975), and appellant’s conviction are affirmed.

ADKINS, Acting C. J., and ENGLAND, HATCHETT and KARL, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I respectfully dissent.

There is a vast different between the social stigma resulting from conviction of prostitution and the other offenses resulting from noncommercial sexual misconduct between persons not married to each other. In the public mind, one convicted of prostitution is an outcast who has engaged in the sale of sexual favors.

Under the literal interpretation of the statute persons who engage in pre-marital intercourse hours before their own wedding might be guilty of prostitution. Surely the Legislature never intended such a construction of the statute.

There are no guidelines in the statute as to what sexual conduct without hire constitutes misconduct licentious enough to justify prosecution for prostitution. The obvious vagueness of the word “licentious” as used in the statute violates due process of law guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 9 of the Florida Constitution.

      . § 796.07, Fla.Stat. (1975), reads:
      “Prohibiting prostitution, etc.; evidence; penalties; definitions.—
      “(1) As used in this section, unless the context clearly requires otherwise:
      (a) The term ‘prostitution’ shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for licentious sexual intercourse without hire.
      (b) The term ‘lewdness’ shall be construed to include any indecent or obscene act.
      (c) The term ‘assignation’ shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.
      (d) The term ‘prostitution’ as used in paragraph (a) shall be construed so as to exclude sexual intercourse between a husband and his wife.”

      “(3) It .shall further be unlawful in the state:
      (a) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
      (b) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself or herself.
      (c) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.
      (d) To aid, abet, or participate in the doing of any of the acts or things enumerated in subsections (2) and (3) of this section.”
      * * * * * *


text:
    George COMEAU, Petitioner, v. SAFECO INSURANCE COMPANY OF AMERICA, Respondent.
    No. 51384.
    Supreme Court of Florida.
    March 16, 1978.

      Hal Castillo and David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for petitioner.
    Henry H. Graham, Jr. and Richard M. Hart, Jr. of Howell, Howell, Liles & Braddock, Jacksonville, for respondent.
   KARL, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, First District, in Comeau v. Safeco Insurance Co., 342 So.2d 1085 (Fla. 1st DCA 1977), which directly conflicts with Fine v. Travelers Insurance Co., 342 So.2d 848 (Fla. 3d DCA 1977). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

While in the course of his employment, the petitioner was injured when the tractor-trailer which he was driving became involved in an accident. Respondent provided the petitioner with $5,000.00 statutory personal injury protection benefits. The petitioner’s weekly salary was approximately $300.00. Petitioner received workmen’s compensation awards of $105.00 weekly; respondent paid him the difference of $160.36 a week until January 2, 1976. On this date, the respondent notified the petitioner that no further benefits would be paid because the workmen’s compensation benefits plus the personal injury protection benefits had exceeded the $5,000.00 statutory limit. The petitioner then filed a complaint seeking a declaratory judgment against the respondent. In the complaint, the petitioner alleged that the Florida Automobile Reparations Reform Act required the respondent, as insurer, to supplement workmen’s compensation awards until the respondent, itself, had paid the liability limits under its policy for personal injury protection benefits or $5,000.00 in lost wages. The respondent’s amended answer alleged that the petitioner’s policy specifically provided that personal injury protection benefits were reduced by the amount of workmen’s compensation benefits received. The trial court accepted the respondent’s argument and held that Section 627.-736(4), Florida Statutes (1975), only required the respondent to supplement workmen’s compensation benefits until the petitioner had received, both from workmen’s compensation and from the respondent, a total of $5,000.00.

The District Court of Appeal affirmed the judgment of the trial court and explained: t;

“The legislature clearly and plainly stated in subsection (4) that workmen’s compensation benefits are credited against the statutory $5,000.00 limitation. It is obvious that the legislature intended that when workmen’s compensation benefits are received for the same items of loss and expense under any workmen’s compensation law, the total aggregate limit of personal injury protection benefits available with respect to such bodily injury shall be reduced by the amount of workmen’s compensation benefits received.”

The question posited by petitioner for our review is whether Section 627.736(4), Florida Statutes (1975), requires an insurer to supplement workmen’s compensation benefits until the insurer has, itself, paid the limits of liability under its policy for the required personal injury protection benefits.

Section 627.736, Florida Statutes (1975), provides in pertinent part:

“627.736 Required personal injury protection benefits; exclusions; priority-—
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a motor vehicle or motorcycle, all as specifically provided in subsections (2) and (4)(d), to a limit of $5,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
“(b) Disability benefits. — One hundred percent of any loss of gross income and loss of earning capacity per individual, unless such benefits are deemed not in-cludable in gross income for federal income tax purposes, in which event such benefits shall be limited to 85 percent, from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his household. All disability benefits payable under this provision shall be paid not less than every 2 weeks.
“(4) BENEFITS; WHEN DUE. — Benefits due from an insurer under ss. 627.-730-627.741 shall be primary, except that benefits received under any workmen’s compensation law shall be credited against the benefits provided by subsection (1) and be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.-741.”

Petitioner initially points out that the District Court, Third District, has ruled, in Fine v. Travelers Insurance Co., supra, that the total aggregate limit of personal injury protection benefits with respect to bodily injury is not reduced by the amount of workmen’s compensation benefits received. Petitioner asserts that the applicable sections of the policy issued by respondent improperly lay a predicate for the instant construction by the District Court of Appeal, First District, and posits that the intent of Section 627.736(4), Florida Statutes (1975), (which became a part of the insurance contract since the parties are presumed to have entered into the contract with reference to the statute) is to eliminate one from recovering for a loss which is not sustained because of workmen’s compensation benefits and is not to reduce the limits of liability under the statutory minimum required for personal injury protection benefits. By respondent’s position and the District Court’s holding, petitioner argues that respondent avoids the effective coverage of $5,000.00, the minimum statutorily required personal injury protection benefits. Petitioner contends that respondent is required to supplement workmen’s compensation benefits until respondent has paid its limits of liability or the insured has returned to work.

Respondent submits that it is unreasonable to assume that Section 627.736(4), Florida Statutes (1975), indicates only a procedural manner of payment when it expressly and unambiguously requires that workmen’s compensation benefits shall be credited. Respondent distinguishes the instant case from Fine v. Travelers Insurance Co., supra, on the basis that the question sub judiee is whether or not the total aggregate limit of personal injury protection available should be reduced by workmen’s compensation benefits received while the points resolved by the court in Fine v. Travelers Insurance Co., supra, involved whether workmen’s compensation benefits are concurrent and whether exhaustion of workmen’s compensation benefits is a prerequisite to receiving personal injury protection benefits. The credit allowed by Section 627.736(4), Florida Statutes (1975), is a set-off against the total aggregate limit available and not just against individual payments, argues respondent.

Petitioner replies that he is not seeking double recovery but, rather, is merely seeking to be paid the difference between workmen’s compensation benefits and personal injury protection benefits for which he paid a premium until personal injury protection benefits of $5,000.00 are exhausted when he has suffered such a serious injury as would require this.

In Charter Oak Fire Insurance Co. v. Regalado, 339 So.2d 277 (Fla. 3d DCA 1976), an insured brought an action for recovery of losses claimed due under the personal injury protection benefits provision of his policy. The insurance company responded that it was not liable for personal injury protection benefits since the insured was receiving workmen’s compensation and contended that it was not liable for any payment until workmen’s compensation benefits were exhausted and then only if workmen’s compensation payments received for medical benefits were less in amount than the amount payable under the personal injury protection provision of Section 627.736, Florida Statutes (1975). The trial court held in part:

“2. Pursuant to the provisions of the Florida Automobile Reparations Reform Act, workman’s compensation benefits received by the claimant are credited against the Personal Injury Protection benefits paid by a Personal Injury Protection insurer and not credited against the amount of coverage, to wit: $5,000.00, afforded by the Personal Injury Protection carrier.”
“3. Payments made in accordance with the provisions of the Automobile Reparations Reform Act must be made when they become due and in the ordinary course of business and the carrier owing such payments may not require the insured to exhaust workman’s compensation benefits prior to applying for Personal Injury Protection benefits.”

The District Court, Third District, affirmed this portion of the trial court’s summary judgment.

Subsequently, in Fine v. The Travelers Insurance Company, supra, the District Court of Appeal, Third District, relied on its earlier decision in Charter Oak Fire Insurance Co. v. Regalado, supra, and explained:

“We stated there that the purpose of the Automobile Reparations Reform Act was to broaden insurance coverage and that pursuant to Section 627.736(4), Florida Statutes (1975), workmen’s compensation benefits received by a claimant were therefore to be credited against p. i. p. benefits paid by an insurer, and not credited against the total amount of personal injury coverage available. In so ruling, we concluded the p. i. p. benefits and workmen’s compensation benefits were concurrent and exhaustion of workmen’s compensation was not a prerequisite to receiving p. i. p. benefits.”

We agree with petitioner’s position and disagree with the holding of the District Court of Appeal, First District, sub judice, that the total aggregate limit of personal injury protection benefits available with respect to such bodily injury shall be reduced by the amount of workmen’s compensation benefits received. Rather, we hold that an insurer is required to supplement workmen’s compensation benefits until the insurer has itself paid the limits of liability under its policy for required personal injury protection benefits. The legislative intent behind Section 627.736(4), Florida Statutes (1975), is that whenever an automobile accident occurs, the personal injury protection benefits are primary 'and that they are to be paid in full whether or not any other coverage exists. If workmen’s compensation benefits are available, personal injury protection benefits are still primary; however, to the extent that payments of workmen’s compensation are made, personal injury protection benefits are supplemental until either the injured party has been fully compensated or until the personal injury protection insurer has paid the full $5,000.00 in such supplemental payments. This statutory provision is intended to give a credit, as a loss accrues, for workmen’s compensation benefits, thereby preventing one from recovering for a loss which is not sustained because of workmen’s compensation benefits, and is not intended to reduce the limits of liability under the statutory minimum required for personal injury protection benefits.

Petitioner, sub judice, is not attempting to recover for a loss not sustained nor to recover twice for the same loss.

Accordingly, for the foregoing reason, the decision of the District Court of Appeal, First District, is quashed and this cause is remanded for further proceedings consistent herewith.

It is so ordered.

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


text:
    Odell DAVIS, Petitioner, v. TRAVELERS INDEMNITY COMPANY, Respondent.
    No. 51449.
    Supreme Court of Florida.
    March 16, 1978.

      Paul R. Stern of Stern, LaRue & Wells, Daytona Beach, for petitioner.
    Janis M. Halker of Gurney, Gurney & Handley, Orlando, for respondent.
   KARL, Justice.

We have for review on petition for writ of certiorari the decision of the District Court of Appeal, First District, reported at 343 So.2d 669 (Fla. 1st DCA 1977), which directly conflicts with Charter Oak Fire Insurance Co. v. Regalado, 339 So.2d 277 (Fla. 3d DCA 1976), and Fine v. Travelers Insurance Co., 342 So.2d 848 (Fla. 3d DCA 1977), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner was involved in an one-car accident in the course and scope of his employment. He applied for personal injury protection benefits from respondent, Travelers, under his policy of automobile liability insurance and for workmen’s compensation benefits.

As of August 11,1975, Travelers had paid a total of $1,174.28, and the workmen’s compensation carrier had paid a total of $3,684.92, as well as payment of hospital expenses. As of this date, Travelers disclaimed any further liability on the basis that personal injury protection payments and workmen’s compensation benefits had exceeded $5,000.00. By letter, Travelers advised petitioner’s attorney that since, under Section 627.736(4), Florida Statutes (1975), workmen’s compensation benefits are credited against the benefits provided by Section 627.736(1), Florida Statutes (1975), it had exhausted the total amount of personal injury protection benefits which could be payable under petitioner’s policy. Petitioner then filed a complaint against Travelers to recover additional personal injury protection benefits and for a declaratory judgment as to whether the workmen’s compensation benefits he received diminish the benefits due from his personal injury protection carrier under Section 627.736, Florida Statutes (1975). Travelers answered that it had paid to petitioner all benefits to which he was entitled under the policy.

After pre-trial conference, with the consent of the parties, the trial court made a determination as to whether the $5,000 maximum liability of the personal injury protection carrier is diminished by amounts received from workmen’s compensation for the same benefits as those provided under the personal injury protection coverage. The trial court held that the $5,000.00 maximum does not enter into a consideration of that which is primary and that which is secondary under Section 627.736, Florida Statutes (1975); that petitioner may recover any benefits recoverable for lost wages under the Florida Automobile Reparations Act against his own carrier giving credit therefor for any sums under workmen’s compensation law; that the trial of the cause would be limited to the issues of what lost wages have resulted to petitioner as a result of the accident and what workmen’s compensation benefits shall be credited to such lost wages as a result of workmen’s compensation payments; that the judgment against Travelers shall not exceed $5,000.00 less payments, if any, as it has made; and that payments by workmen’s compensation carrier shall not be a credit against the $5,000.00 maximum. The parties, thereafter, stipulated that the amount due under the court’s ruling would be $3,825.72, with-costs of $26.00 and attorneys fees of $1,000.00. Pinal judgment was entered thereon.

Upon appeal, the District Court of Appeal reversed the final judgment on the authority of Comeau v. Safeco Ins. Co., 342 So.2d 1085 (Fla. 1st DCA 1977), which decision is also before this Court for review.

We have this date quashed the decision of the District Court of Appeal, First District, in Comeau v. Safeco Ins. Co., supra. For the reasons stated therein, we likewise quash the decision of the District Court, sub judiee, and agree with the judgment of the trial court.

Accordingly, the decision of the District Court of Appeal is quashed, and this cause is remanded with directions that the judgment of the trial court be reinstated.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Ronald E. HOLMES, Respondent.
    No. 52557.
    Supreme Court of Florida.
    March 16, 1978.
    Larry G. Turner, Bar Counsel, Gainesville and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

The Florida Bar has filed an original complaint in this Court requesting that one of its members, Ronald E. Holmes, be appropriately disciplined for ethical violations. Holmes has not responded to the complaint.

The referee of the disciplinary trial instituted by the Bar has found Holmes guilty of technical, but not willful, violation of DR 9-102(B)(4) of the Code of Professional Responsibility and violation of Rule 11.02(3) of the Bar’s Integration Rule. The violations stem from mishandling of a $300 fee given to Holmes by a client as a retainer. A public reprimand has been recommended by the referee.

It appears that the findings of the referee are correct and the disciplinary recommendation is appropriate. Respondent Holmes, therefore, is hereby reprimanded and ordered to pay proceedings costs, in the sum of $194.30.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Joseph E. WEAVER, Respondent.
    No. 52958.
    Supreme Court of Florida.
    March 16, 1978.
    John W. Tanner, Bar Counsel, Daytona Beach, and H. Glenn Boggs, II, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Robert H. Matthews of Hagglund, Matthews & Hagglund, New Smyrna Beach, for respondent.
   PER CURIAM.

Disciplinary proceedings were initiated by The Florida Bar against Joseph E. Weaver, a member of the Bar, alleging various acts of misconduct in his handling of clients’ legal affairs. After a referee was appointed to conduct hearings, Weaver filed an unconditional guilty plea as to all charges against him but one, and that one was eventually dismissed at the Bar’s request. The referee’s report was filed with the Court on December 9, 1977, and neither the Bar nor Weaver has challenged the report under Rule 11.06(9)(b) of the Florida Bar Integration Rule. Accordingly, the record and report of the referee alone are before us for appropriate disposition, including the imposition of discipline. Article V, Section 15, Florida Constitution.

The referee reports the following acts of misconduct to which Weaver has pled guilty:

1. As to Bar Case No. 7C-1275-44
“The complaint against respondent charged him generally with wrongful conversion of escrow or trust funds and felonious larceny, and particularly with having received in escrow for the client funds totaling $42,785.03; payment of $20,000.00 by check which was returned for insufficient funds and which had to be presented a second time for clearance; failure to pay the balance of $22,785.03, and not having sufficient funds in his escrow account to pay that amount.
Subsequent to the filing of the Complaint before the Referee, the Respondent has paid the balance in full.”

The referee found this conduct to be vio-lative of Integration Rules 11.02(3)(a)-(b) (moral misconduct) and 11.02(4) (misuse of trust funds), and of Code of Professional Responsibility Disciplinary Rules 1-102(A)(3), (4) and (6) (acts of misconduct involving moral turpitude and dishonesty which reflect on fitness to practice law), and 9-102(B)(4) (failure to pay over a client’s funds). He recommended disbarment as the appropriate discipline.

2. As to Bar Case No. 7C-875-1S
“The complaint against respondent charged him with misrepresentation and neglect: that he was engaged to handle the administration of an estate valued at approximately $286,217.00, under a will providing for two trusts; Notice to Creditors was not published until several months after he was retained; he failed to furnish information requested and required for tax purposes; represented that he had established trusts as required but never did so; caused losses on assets; paid himself fees of $4,570.00 without court order, and never completed administration of the estate.”

The referee found that this conduct violates DRs 1-102(A)(4) (acts of dishonesty), 6-101(A)(3) (neglect of a legal matter entrusted to him), and 7-101(A)(2) and (3) (intentionally failing to carry out a contract of professional employment and prejudicing his client). As to this misconduct he recommended a twelve-month suspension, coupled with rigorous conditions before practice can be resumed.

3. As to Bar Case No. 7C-476-67(A)
“The complaint alleges that respondent was temporarily suspended from the practice of law effective March 11, 1976, and thereafter on or after March 12, 1976, agreed to represent Dr. M. Woodrow Tucker and on or after March 15, 1976, accepted a $250.00 prepaid fee from him in connection with that representation. The Respondent has since repaid said prepaid fee in full.”

The referee found that this conduct violated our suspension order and DRs 1-102(A)(4) (deceit) and 3-101(B) (practicing law where not authorized). He recommended a private reprimand.

4. As to Bar Case No. 7C-476-65
“The complaint against the Respondent charged that he was retained in connection with a breach of contract action and accepted a $500.00 prepaid fee from Mary A. Gross, but failed to perform any meaningful legal services and had never returned the $500.00 prepaid fee. The Respondent has since repaid the prepaid fee in full.”

The referee found that this conduct violates DR 6-101(A)(3) (neglect of a legal matter), and recommended a public reprimand.

5. As to Bar Case No. 7C-476-67(B)
“The complaint alleges that Respondent accepted from Lydia Lange a prepaid fee in the amount of $140.00 and $25.00 for costs in connection with a title matter and failed to perform, furnish an abstract, or refund the prepaid fee and costs. Respondent has since repaid the prepaid fee in full.”

The referee found that this conduct also violates DR 6-101(A)(3), and recommended a private reprimand.

6. As to Count VI of Bar's “Case # Various” File
“The complaint alleges that Respondent accepted $500.00 as a prepaid fee paid by James P. Watson on behalf of Karl Nielson, failed to carry out his contract, and did not return the prepaid fee.”

The referee found that this conduct also violates DR 6-101(A)(3), and recommended a private reprimand.

7. As to Bar Case No. 7C-476-74
“The complaint alleges that Respondent accepted $500.00 as a prepaid fee from Gretchen T. Hunt for service as attorney for the Estate of Ollie Hunt, but failed to perform any meaningful legal services, and failed to return the prepaid fee. Respondent has since repaid the fee.”

The referee found that this conduct also violates DR 6-101(A)(3), and recommended a private reprimand.

We accept Weaver’s guilty plea and approve each of the referee’s findings of fact. With respect to discipline, counsel for the Bar had asked the referee for Weaver’s suspension from the practice of law, based on several mitigating considerations. Weaver entered the practice of law at age 25 and is now 31. His several acts of misconduct arose after Weaver’s father had died, and during a period of extreme marital difficulty. Weaver pled guilty to all acts of misconduct (except one which the Bar dismissed), although Bar counsel indicated to the referee that there might have been a basis to defend some or all of charges on technical or other grounds. Despite the Bar’s plea for mitigation, the referee obviously considered Weaver’s major act of misconduct too severe merely for suspension. Weaver had acknowledged to the referee his awareness and understanding of the Code of Professional Responsibility. We, of course, are not bound by the referee’s recommendations for discipline.

Weaver’s acts have prejudiced several clients in their legal affairs, notwithstanding their legal fees have been returned. Despite the personal problems which may have caused Weaver’s current professional situation, we cannot excuse the serious acts of misconduct in which he engaged as a member of the legal profession. We approve the referee’s recommendation of discipline, and we direct that Joseph E. Weaver be disbarred from the practice of law in Florida, effective this date.

Costs of these proceedings in the amount of $520.36, which we are advised Weaver has already paid, are assessed against him.

It is so ordered.

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

      . See, for example, The Florida Bar v. Mueller, 351 So.2d 960 (Fla.1977).