text:
    Murrell Price COLLINS, Jr. v. STATE.
    6 Div. 519.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Jonathan E. Lyerly, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted for rape. A jury convicted him as charged and fixed sentence at fifty years imprisonment. This appeal is from an entry of judgment pursuant to the verdict.

The record indicates that the alleged offense occurred on May 26,1976, at or near a cemetery in Jefferson County. The res ges-tae began at a drugstore where defendant engaged the prosecutrix in a conversation about her unemployment. He made a suggestion that she follow in her car while he led the way in his car to the airport at which point employment might be obtained.

Enroute, defendant’s car came to a stop, whereupon he alighted. Defendant went to the victim’s automobile and reported that his car was out of gasoline. He got in the victim’s automobile, whereupon he saw a pistol in the victim’s purse and grabbed it when she opened the purse to get a cigarette. He threatened her with the pistol and compelled her to proceed in her car to an isolated spot at or near a cemetery in Jefferson County.

When the isolated spot was reached, defendant demanded that she have oral sex with him. When she refused, he kicked her on her legs. The impact of the kicks left bruises. She yielded to oral sex. He thereafter had normal sexual intercourse with her against her will and by putting her in fear.

After the sex relation as above indicated, they proceeded in the victim’s car to the point where they had left his car. He alighted with the victim’s pistol and took off in his car. The victim then proceeded to the home of her grandfather where she reported the sexual assault. The police were promptly notified, and an investigation was begun immediately.

The victim identified the defendant from a picture which was among several that were shown her by a police officer. An arrest followed.

The State offered supporting evidence by an expert (a physician) who examined her vagina soon after the alleged offense. This expert said the victim had sperm in her vagina that indicated she had had sexual relations not later than twelve hours before the examination. He also stated that she had bruises and abrasions on her legs. The physician testified that he saw the prosecu-trix about 6:00 P.M. on May 26, 1976. The victim complained to him that she had been raped by a black male. The patient was identified by name as the same appears in the record before this court.

The defendant did not take the stand. There was no testimony refuting the rape except some alibi witnesses who testified that defendant was at home on the day of the offense helping his wife in the yard.

I

Appellant claims error on the part of the court in refusing to let his counsel ask the jury, on voir dire when they were being qualified, the following:

“Is there anybody here who believes that it is incumbent upon the defendant to prove his innocence?”

The range of voir dire examination is properly addressed to the broad discretion of the trial court. Title 30, § 52, Code of Alabama 1940; Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850.

The court’s oral charge on the presumption of innocence and the burden of proof relative to guilt was ample and sufficient to impress the jury and to enlighten them on this principle of law so involved. If any juror had the mistaken belief that it was incumbent upon the defendant to prove his innocence, the oral charge was calculated to dissipate this belief. The ruling of the court was free of error.

II

A second contention of error is that the trial court erred in admitting in evidence certain photographs revealing bruises and abrasions on the rape victim’s legs. The photographs were admitted over defendant’s objection.

The victim testified that during the incident of the rape, defendant kicked her and bruised her legs because she demurred at having oral sex with him.

We think the evidence was ample to show that the pictures revealed the kicks and bruises, supra. Hence, they are cumulative and support the victim’s evidence as to the violent conduct of the defendant because she demurred to his demand for oral sex. The photographs were admissible. Baldwin v. State, 282 Ala. 653, 213 So.2d 819; Brown v. State, 55 Ala.App. 615, 318 So.2d 311.

The court’s ruling was correct.

III

The third contention of error is that the prosecution, over defendant’s objection, was allowed to ask Officer John Fisher, Jr., of the Birmingham Police Department, whether or not the victim at the time he “first saw her” was upset, or what her condition was.

It appears from the evidence that this witness and another officer, L. L. Lloyd, received a call on May 26, 1976, relative to “this case,” that they responded and saw the victim. The State propounded the following question to the witness to which the defendant objected:

“MR. JOHNSON: Well, as to her appearance when you first saw her, was she upset—did she appear to be upset to you?
“MR. LYERLY: I object to opinion evidence.
“THE COURT: Overruled. You can answer.
“WITNESS: She had a cigarette in her hand and her hand was shaking.
“MR. JOHNSON: O.K. Did Officer Eaton come on out there to the house?
“A. Yes, sir.
“Q. She wasn’t with you and Lloyd, was she.
“A. No, sir, we called her.”

The witness was authorized to relate the appearance of the victim relative to being upset. Hamilton v. State, 281 Ala. 448, 203 So.2d 684; Garraway v. State, Ala.Cr.App., 337 So.2d 1349.

IY

In his fourth contention of error, appellant asserts the court committed error to reverse because it overruled his motion for a mistrial because the prosecutrix, while in the rear of the courthouse, began sobbing and otherwise reacting to the arguments of counsel.

We think the record refutes such a display of emotion. The trial court’s statement of his observation of the prosecutrix, and the absence of any display of emotion, was sufficient refutation. However, he polled the jury after they reported and delivered a verdict and while they were still in the jury box. The entire membership of this jury indicated that they were not influenced by any emotions of the prosecutrix if the scene occurred.

The motion for a mistrial was properly overruled.

V

Appellant asserts in his motion for a new trial that the jury rendered a quotient verdict that was illegal.

It appears in the record that nine of the twelve jurors on the case were summoned and testified as to the nature of the verdict and how punishment was reached.

It seems that the jury had taken a large number of ballots without an agreement being reached. One of the jurors wrote down what each juror’s idea of punishment was. He added them up and divided by twelve. The result was fifty years. This figure was submitted to the jurors and each agreed thereto.

One juror aptly answered a question as follows:

“Q. Do you recall any discussion of an average? Do you recall any discussion between you or any other members of the jury concerning taking an average to determine the sentence?
“A. Of course, everybody has to meet a medium somewhere or you never would get a verdict as to the number of years.”

In order to be a quotient verdict, and hence illegal, there must be an agreement among the jurors that their verdict would be the result’ or quotient of a division by twelve of the sum total of all the jurors’ separate assessments. Ledbetter v. State, 17 Ala.App. 417, 85 So.2d 581; Lazarte v. City of Mountain Brook, 287 Ala. 96, 248 So.2d 153.

Each of the nine jurors who appeared testified that there was no agreement that they would be bound by the result. It appears that the juror who did the adding and dividing did so without direction of the jurors and presented the result (fifty years) which was satisfactory to all of them. In other words, it was a method used to reach a “medium” and was not illegal.

The motion for a new trial also asserts that the verdict of the jury was contrary to the great preponderance of the evidence. The only defense presented was an alibi which was supported by several witnesses, most of whom were related or in the family of defendant’s wife. We think a jury ■ question was presented. The motion was properly overruled.

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.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Murrell Price COLLINS, Jr.
    78-66.
    Supreme Court of Alabama.
    Dec. 22, 1978.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: DeCARLO, Judge.

text:
    Willie James McGHEE, Jr. v. STATE.
    3 Div. 640.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen. for the State, appellee.
   DeCARLO, Judge.

Willie James McGhee, Jr., was indicted in January, 1975, by the Montgomery County Grand Jury for first degree murder. The indictment, omitting the formal parts, reads as follows:

“. . . The Grand Jury of said County charge that, before the finding of this indictment, WILLIE JAMES McGHEE, JR., whose name is to the Grand Jury otherwise unknown, unlawfully and with malice aforethought, perpetrated an act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life although without any preconceived purpose to deprive any particular person of life, killed William Thomas Nix, by running a motor vehicle over, into or against a motor vehicle in which the said William Thomas Nix was a passenger, resulting in the death of the said William Thomas Nix, . . ..”

McGhee was tried and convicted and on appeal the judgment was reversed and the cause remanded.

On August 4th and 5th of 1976, he was retried and was sentenced to ten years for second degree murder.

This appeal is from that second degree murder conviction resulting from the second trial.

Prior to the second trial, in open court, but before the jury was qualified, the court informed the appellant as follows:

“THE COURT: You are charged with the second degree murder. How do you plead to that?
“MR. SMITH: Not guilty, Your Honor.
“THE COURT: You waive reading of the indictment?
“MR. SMITH: No, sir.
“THE COURT: You want reading of the indictment?
“MR. SMITH: Yes, sir.
“THE COURT: I’m not going to read it in the presence of the jury.”

After the jury was qualified and chosen, and were excused, the arraignment occurred:

“THE COURT: McGhee, you are charged with the offense of Murder in the Second Degree. To that charge, how do you plead?
“THE DEFENDANT: Not guilty.
“MR. SMITH: Not guilty.
“THE COURT: And you don’t waive reading of the indictment?
“MR. SMITH: No, sir.”

Subsequently, the following order was entered on record at the direction of the court:

“MR. TEAGUE: All right, sir; and the order entered on the docket sheet by the Honorable B. Embry, the Judge in this case, was the following: ‘The indictment charged the Defendant with First Degree Murder, and on trial, the Defendant was found guilty of Second Degree Murder, which by operation of law, is acquittal of the charge of First Degree Murder; which charge of First Degree Murder, the State dismisses, and proceeds on the Second Degree.’
“THE COURT: Now, to that charge, how do you plead?
“MR. SMITH: Not guilty.
“THE DEFENDANT: Not guilty.
“MR. TEAGUE: To the charge of Second Degree Murder?
“THE COURT: That’s right. All right, now, read the indictment.”

The indictment, at this point, was read to the defendant.

Counsel for the appellant demurred to the indictment, citing T. 14, § 314, Code of Alabama 1940, Recomp. 1958. He argued that the indictment charging appellant with the fourth class of murder in the first degree, did not embrace the lesser degrees of second degree murder and manslaughter.

Counsel stated that the appellant was being tried on the same indictment that he was previously tried on and found guilty of murder in the second degree, which was later reversed by the Court of Criminal Appeals. McGhee v. State, Ala.Cr.App., 333 So.2d 865.

The trial judge overruled the defense counsel’s demurrer to the indictment and the arraignment continued.

Following the arraignment, and further discussion among the court and attorneys, the jury was brought back into court and the trial continued.

The facts showed that Murray Sewell Hammond, a teacher at Hayneville High School, and a part-time employee at the Thrifty Service Station in Millbrook, Alabama, testified he had known the appellant for approximately four years. On December 24, 1974, the appellant came into the Thrifty Service Station and purchased a package of cigarettes and one can of beer.

According to Hammond, the appellant left the service station about six or six-thirty P. M., carrying the can of beer in a sack. He stated that the appellant did not appear to be drunk and did not stagger, have bloodshot eyes, or did he smell of alcohol. Hammond said McGhee left the station driving toward Montgomery in a Bonneville Pontiac.

James Alvin Nix was the father of the six-year-old victim, William Thomas Nix. He testified that on Christmas eve of 1974, around 6:00 P. M., he and his family were returning from Montgomery driving toward Millbrook in their 1974 Grand Torino Ford automobile. According to Mr. Nix:

“. . . we were traveling north toward Millbrook, and we got just about to the curve and started to the curve and saw an on-coming car, and it was off the road on its side; and I slowed down and pulled off the road and come just about stop, and the car was headed on toward me and so I speeded up and tried to avoid the car from hitting me, and I was unable to and the car hit me and knocking me off the road back on into the ditch.”

Nix said that at the time of the collision he was headed north on the right side of the road. He recalled that he was traveling approximately fifty miles per hour. His wife and small daughter were sitting in the front passenger seat while his two sons were seated in the back. The youngest, who was the victim in the collision, was seated just behind the driver’s seat and his brother was also seated in the rear next to him.

Mr. Nix testified that after the collision, his oldest son told him that the younger boy was hurt. Nix crawled over the front seat and found his youngest son lying halfway in the trunk on the passenger side of the car. According to Nix, the back seat was completely gone, “except the part you sit on.” He stated: “I checked his heartbeat and pulse and I couldn’t find any; and I picked him up, when I picked him up, I just stood straight up and walked out of the back of the car.”

On cross-examination, Nix stated that it had rained earlier but had stopped by the time the collision occurred. He said the first time he saw the appellant’s vehicle was when it was in the curve off the side of the road on the shoulder.

According to Nix:

“. . . there is a real sharp curve at the end of Tyler Goodwyn Bridge, a short straight-away, then another, and a small curve back to the left and right after that, that curve . . . Then there is another, a little small curve, then there is a straight-away all the way to the long curve where the collision happened.”

Nix said he had a discussion with the appellant following the collision. The appellant asked Nix, “What happened?” and he responded, “You knocked me off the road.” The appellant then countered, “Who knocked who off the road, you knocked me off the road.”

At the end of Mr. Nix’s testimony, the State, in the presence of the jury, read into the record the testimony of Dr. Neal Sen-zer, given at appellant’s first trial. The testimony was allowed, after the court had determined, at a hearing out of the presence of the jury, that the doctor was beyond the subpoena power of the State.

At the previous trial, Dr. Senzer had testified that he was working in the emergency room at a Montgomery hospital on December 24,1974. Dr. Senzer stated that he saw the Nix boy in the emergency room and that the boy was pulseless, that his eyes were dilated, that he (Dr. Senzer) could not auscultate or palpate a heartbeat, and that there was no breathing. His diagnosis at that time was that the child was dead on arrival.

W. H. Thompson, a State trooper with the Department of Public Safety, investigated the collision. Thompson said after arriving at the scene he made inquiries of two or three people as to “who was driving the Pontiac.” He subsequently found the appellant who said he was the driver. According to Thompson, he was using his flashlight and as he talked to the appellant he observed that his eyes were bloodshot and that he was “sort of unsteady on his feet.” Thompson stated it was his opinion that the appellant had been drinking and there was an odor of alcohol on his breath.

He further testified that on his arrival he found a child, approximately six years old, lying on the ground with his father holding him.

Thompson stated that he had a conversation with the appellant and the appellant had said “that car ran me off the road.”

Thompson placed the appellant under arrest and took him to the Montgomery County Jail where a photo-electric-intoximeter examination was administered.

During the trial Thompson stated he was certified with the Department of Public Safety to administer the P.E.I. test. He said he followed the standard procedure laid out for the operation of the machine. Thompson testified that appellant, McGhee, had not had any alcohol from the time he saw McGhee at the collision scene until the test was administered around 7:40 P. M., an hour and ten minutes after the collision. The results of the P.E.I. tests indicated that McGhee had .17 alcohol content in his blood at the time of the test.

Corporal W. R. Applin of the State Department of Public Safety also investigated the collision on Christmas Eve of 1974. According to Applin, as he approached the scene he noticed two vehicles on the same side of the road about two hundred feet apart. Applin testified that he determined the point of impact and found paths of travel for each vehicle before and after the impact.

Further, Applin said there were approximately sixty-six feet of heavy skid marks leading off the pavement. He stated that the Nix vehicle could not have been completely on the pavement at the time of the impact. Applin explained that the rear wheel of the Nix vehicle at impact was at least three and one-half to four feet from the pavement edge.

Applin identified several photographs that were taken before the cars, involved in the collision, were moved by a wrecker. He said he found a brown paper sack, an empty jar, a package of Camel cigarettes, and two empty beer cans inside appellant’s car.

During cross-examination, Applin recalled that it had rained that day, but did not know whether it had rained in the vicinity of the Collision. He did state, however, that there was no fog at the approximate time of the collision.

Nelson Hodge Watts was employed by the State Department of Public Safety and worked in the driver improvement section as a field coordinator. He testified that, as a field coordinator, part of his duties were to check the photo-electric-intoximeter machines and to determine whether or not they were in proper working order. According to Watts, he checked the photo-electric-intoximeter machine No. 234 at the Montgomery County Jail on December 18, 1974. He stated that the P.E.I. machines were checked every thirty days.

Watts identified a log which he kept in conjunction with his inspections of the photo-electric-intoximeter machines and stated that machine number 234 was the machine used to examine Willie James McGhee.

Watts said a person is considered legally intoxicated under the law in the State of Alabama when the reading on the P.E.I. machine indicates .10 or above.

E. F. Dixon, a captain in the enforcement division of the Department of Public Safety, testified that in 1974 he “headed up” the breath-testing unit for the department. He stated that on November 10, 1974, and on January 9, 1975, he inspected the machine in question and each time found it to be accurate.

According to Robert Finley, technical director of chemical testing for the intoxication program of the Department of Public Health, it was part of his duties not only to oversee the photo-electric-intoximeter tests but to check the machines and to certify those eligible to administer the tests. Finley stated that Capt. Dixon and Trooper Thompson were both certified by the Department of Public Health.

Finley testified as to the standards laid down by the Department of Public Health regarding the administration of the intox-imeter test, and also explained the meaning of the various readings.

Junior Roscoe Walls was employed as a wrecker driver and testified that on the evening of December 24, 1974, he went to the scene of a collision on Highway 143, north of Montgomery, and towed the appellant’s car to his house. According to Walls, while enroute he had to stop and get out of the truck. When he did so he observed about eight to fifteen empty beer cans under the front seat of appellant’s car.

Mr. Nix was recalled by the State and testified that he had observed McGhee from the time he first saw him and that he “was driving well above the speed limit; because I could hear rocks and things from the car and he had to be traveling above the speed limit.”

At the conclusion of Mr. Nix’s testimony, the State rested its case and the defendant made a motion to exclude the State’s evidence on the ground that the State had failed to “produce three elements that are necessary, — willful, deliberate, and malicious.” The court overruled the motion and the defense called the appellant, Willie James McGhee, Jr.

McGhee recalled that on Christmas Eve morning of 1974, he got up around 8:00 o’clock, and, after working in his yard, went with his wife to Prattville to purchase some fruit. Upon his return around noon, he sat around the house, then went to his church to cover a water line. From there he went to his parent’s home to deliver Christmas presents. He said during that time he did not have anything to drink.

He went back to the church and remained there until he went to the service station where Mr. Hammond worked. According to McGhee, it was around 6:00 P. M. when he went to the service station, and that he stayed there about fifteen or twenty minutes, and purchased a package of cigarettes and a can of beer.

McGhee said he left the service station headed toward Montgomery on Highway 143, driving approximately fifty to fifty-five miles per hour. He said the weather was kind of foggy and steam was coming off the pavement.

According to McGhee, just prior to entering a curve, he pulled off the highway to avoid a car that he was meeting head on. He said it was when he got back on the road that he saw Nix car coming around the curve. McGhee went on to say:

“. . . and so when I got back on the road, I discovered Mr. Nix coming around the curve, he was on the yellow line so I got my car off of his front and caught it right across the back.”

McGhee denied telling a trooper that Mr. Nix had run him off the road. He said the impact had knocked him out but after the collision he had walked over to Mr. Nix and asked if he could help him. A few minutes later a State trooper arrived and he asked McGhee if he had been driving one of the cars involved. McGhee responded that he had been. Subsequently, the officer handcuffed McGhee and placed him in the patrol car.

McGhee said he was carried to jail and given a test. He testified that at the end of the test the officer took him to St. Margaret’s Hospital.

McGhee denied being intoxicated at the time of the accident and said he had had just one beer the entire day.

During cross-examination, McGhee testified that his brother had used his automobile and could have possibly left the empty beer cans in his car. Further, he said he could not account for the amount of alcohol content in his blood but said he had only consumed one beer.

I

As stated earlier, appellant argues that it was error for the trial court to overrule his demurrer to the indictment entered against him. He states the indictment could not include the lesser offense of second degree murder and that there should have been a reindictment for second degree murder. Further, counsel contends it was error to allow the indictment to go to the jury bearing the words: “Depraved mind, regardless of human life although without any preconceived purpose to deprive any particular person of life.”

It has long been the rule that an indictment for first degree murder includes every lesser degree of homicide including second degree murder. Linehan v. State, 120 Ala. 293, 25 So. 6; Helms v. State, 22 Ala.App. 459, 116 So. 808; Echols v. State, 276 Ala. 489, 164 So.2d 486. The indictment in the present case was for first degree murder of the fourth class. There should be no distinction made between this class and the other three as to whether or not lesser degrees of homicide come under the umbrella of a first degree murder. See Langford v. State, Ala., 354 So.2d 313. Therefore, there was no merit to the demurrer as it applied to this argument.

It is not uncommon for an accused to be retried after a reversal on the same indictment, although he was previously convicted of a lesser included offense. Ferguson v. State, 141 Ala. 20, 37 So. 448.

We note from the record that the jury was instructed that the appellant was being tried for second degree murder and they were thoroughly instructed on all degrees of homicide. Further, the judge also instructed the jury that the indictment in the case was not to be considered in any way as evidence or shedding light whatsoever upon the guilt or innocence of the defendant.

Under these circumstances, it is our judgment that the wording in the indictment did not prejudice the defendant and, for this reason also, the demurrer should have been overruled.

II

McGhee next contends the trial court erred in admitting the results of the P.E.I. test in that the State had not established that he did not have access to intoxicating beverages between the time of the accident and the time he was confronted by a State trooper.

In Montgomery v. State, 44 Ala.App. 129, 203 So.2d 695, this court stated:

“It is permissible to show by a late arriving witness the defendant was drunk in his presence, providing the State also shows that the surrounding circumstances are as such as to preclude the possibility of appellant drinking after the accident.”

In the present case the period of time elapsing from the time of the collision and the arrival of the State trooper was approximately twenty minutes. McGhee’s actions during this interval of time were accounted for by Mr. Nix. He said he had seen McGhee immediately after the collision and had spoken to him shortly thereafter. Additionally, the accident was of such a severity that a judge could reasonably conclude from these facts that the appellant did not have access to alcoholic beverages.

Ill

Thirdly, the appellant maintains the trial court erred in allowing a witness to testify as to the whereabouts of an absent witness who had testified at appellant’s first trial on the same charges. Counsel argues that such testimony was hearsay and was erroneously admitted.

This contention is centered around the fact that Dr. Neal Senzer’s absence from the State was established through the testimony of Stephen J. Siegel, a special agent with the Air Force Officer’s Special Investigations at Maxwell Air Force Base.

Siegel testified, outside the presence of the jury, that he was familiar with people discharged from Maxwell Air Force Base. He said Dr. Neal Senzer, who was at Maxwell on December 24, 1974, had been discharged from the Air Force and currently resided in North Woodmere, Nassau County, New York.

During cross-examination, after Mr. Sie-gel acknowledged that he was not in charge of the personnel records, defense counsel objected to his testimony on the grounds that it was based on hearsay. The objection was overruled and Dr. Senzer’s testimony at the previous trial was allowed to be read to the jury.

We have read Dr. Senzer’s testimony and it was substantially nothing more than a statement that the Nix boy was dead on arrival at the emergency room.

The fact concerning the victim’s death was also testified to by the father, Mr. Nix, and Officer Thompson during the State’s case in chief. Each testified that the child was dead after the accident. See Parker v. State, 51 Ala.App. 362, 285 So.2d 526, cert. den. 291 Ala. 795, 285 So.2d 529.

Due to the fact that counsel had ample opportunity to cross-examine Dr. Senzer, we find no error in admitting his testimony to be read to the jury. At best, it was merely cumulative of what other witnesses had already said. See Rule 45, Alabama Rules of Appellate Procedure.

No error appearing in the record, the judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Willie James McGHEE, Jr.
    78-128.
    Supreme Court of Alabama.
    Dec. 22, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Ray L. JOHNSON, alias v. STATE.
    6 Div. 108.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.

      Edward L. Ramsey, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of rape and the jury fixed his punishment at ten years imprisonment in the penitentiary. The Court ordered the sentence be served at the expiration of a sentence appellant was serving in the State of Georgia.

Appellant did not testify in his behalf. He offered testimony in an attempt to discredit the testimony of the prosecutrix that she had been crying. The State produced a witness who testified that he saw the prose-cutrix the morning of the rape and she appeared to have been crying and was real nervous.

After sentence was imposed appellant gave notice of appeal. He was found to be indigent and was furnished a free transcript. New counsel was appointed to represent him on this appeal.

The prosecutrix testified that in April, 1974, she was twenty years old and that she lived at home with her mother and two sisters. On April 27, 1974, a Friday night, prosecutrix left home at approximately 11:35 p. m. and drove across Birmingham to visit a friend. While traveling down First Avenue North, prosecutrix saw a rust or red colored Mustang automobile, and at trial she identified appellant as the driver. The prosecutrix further testified that, when she stopped at a traffic light, she glanced over and saw appellant looking at her.

Prosecutrix’s destination was an apartment building on Tuscaloosa Avenue and Ensley Avenue. When she arrived there, prosecutrix saw appellant drive up behind her and park. From the record:

“Q. What is the next thing that happened, please, ma’am?
“A. I parked my car and got out. And at the same time he got out of his car. And I asked him what did he want. And he said that I looked at you and you looked at me. So, I thought maybe you wanted to go get a drink. And I said no. “And I took the door to knock on the door, and then he grabbed me.”

At that time appellant pulled the prose-cutrix around the side of the apartment building, telling her that, “If you make a sound I’ll split your throat.” The prosecu-trix testified that she then felt the cold steel of a knife on her throat. When appellant asked for a kiss and placed a hand between her legs, prosecutrix told him that it was no use because she was in her menstrual cycle. Appellant, holding the prose-cutrix by her arm, told her, “Well, we will find out,” and walked her to his car. Appellant told the prosecutrix to get in the back seat of the Mustang and lie down. Appellant backed out of the parking lot and drove twenty to thirty minutes.

The prosecutrix testified that the appellant stopped in the yard of a house under construction in a neighborhood which she later discovered was in Hoover, in Jefferson County. Appellant told the prosecutrix, “Okay, you can get out now,” and they walked to the front of the car. Then appellant ordered the prosecutrix to disrobe and she stripped to her panties. Having been ordered to lean over the hood of the ear, the prosecutrix complied and the appellant struck her across the buttocks five or six times with his belt. Appellant told the prosecutrix, “That’s because you lied to me.” The prosecutrix explained that there was no evidence that she was in her menstrual cycle.

The prosecutrix testified that she and appellant then went to the utility room of the house; she did not see a knife at this point. Appellant brought in a large piece of cardboard and told the prosecutrix to sit down. Appellant then offered the prosecu-trix a cigarette, which she accepted, and they began to talk. When the prosecutrix told appellant she was cold, he went to the car and brought a coat for her. From the record:

“And we talked some more. And then he told me to lay back on the cardboard. And after I had taken the coat off he tried to have sex with me, but couldn’t, because I kept my legs straight.
“Q. What did he say at that time?
“A. He told me to get up. And he pulled me on top of him.
“Q. Now, did you have your panties on at this point?
“A. No, sir.
“Q. And what did you do, if anything?
“A. I was on top of him.
“Q. Okay. Did he penetrate you with his private parts?
“A. Yes, sir.
“Q. All right. What happened next?
“A. We got up and had another cigarette.
“Q. Do you recall whether or not he had a climax?
“A. Not then.
“Q. All right. After that act took place, what happened next, please, ma’am?
“A. We lit another cigarette. I asked him could I get dressed, and he said yes. He said, T believe it’s time to get you back.’ ”

When appellant and the prosecutrix got back in the car, it would not start, the headlights having been left on while they were at the house. The car rolled over a curb and the prosecutrix and appellant rocked the car off of the curb, sending it rolling down a hill where it hit a tree.

Appellant took the prosecutrix by the hand and told her they were going for help. Seeing a lighted house down the street, they walked over to it and knocked on the door. When a man answered the door, appellant told him that they had had car trouble and needed help. Appellant was told that help would be called.

The prosecutrix further testified that she did not tell the man that she had been raped. Appellant and the prosecutrix then sat down on the front steps of the house and waited. Instead of a wrecker pulling up, a police car arrived and appellant told the prosecutrix to “be quiet and not say a word.” When the prosecutrix asked the appellant if he still had the knife, he replied that he did. From the record:

“The police drove up and asked what was the trouble.
“Q. And then what took place?
“A. Do what?
“Q. Then what took place?
“A. We got in the car with the policemen and showed the policemen where the car was.
“Q. When you got in with the policemen did you get in the front seat or in the back seat?
“A. The front seat.
“Q. Okay. Did you tell the policemen that you had been raped?
“A. No, sir.
“Q. Okay. Go ahead.
“THE COURT: Speak up a little louder. You said what?
“A. No, sir.
“Q. All right. Go ahead.
“A. We drove down to where the car was and got out. And he walked down to the Mustang with me to tell me to sit there. And then he walked back and talked with the policemen.
“And I suppose the police called the wrecker, because the wrecker came. And another police car then came. The first police car left. Then the second police car left.
“The wrecker came down to where the Mustang was. And the defendant knew the man that was driving the wrecker. They talked to each other.
“We pulled the Mustang out in the road and tried to get it to run, but it was out of gas. The man who drove the wrecker tied the muffler up to the side door, but that didn’t help, because the lights had been on and it was out of gas. The man driving the wrecker offered to take the defendant to his house because it was close by. They figured that we had been parking.
“So, we got in the wrecker and drove to their house. I asked the man that drove the wrecker something about cars. And he gave me one of his cards. I in turn gave it to the police.
“Q. Did you tell the man that drove the wrecker that you had been raped?
“A. No, sir.”

On the return trip to her car, appellant stopped at a store to get some cigarettes. The prosecutrix remained in the car. As they approached the apartment complex, prosecutrix told appellant that he need not take her all the way back to her car. In case the police were there, appellant was to let her out a block away from the apartment.

Appellant did let the prosecutrix out of the car in an alley near the apartment, and she ran to her friend’s apartment. After a conversation with her friend, a “guy that I was dating,” police arrived and the prosecu-trix was taken to Mercy Hospital approximately 5:00 or 5:30 in the morning, April 28, 1974.

Leonard Robbins testified that he was a policeman for the City of Birmingham and that on April 28,1974, his duties were those of an evidence technician. That day, Officer Robbins went to Mercy Hospital where he took several photographs of the prosecu-trix, depicting strap-like bruises across her buttocks. These photographs were admitted into evidence.

Ronnie Stanford testified that on April 29,1974, while he was working in the Homicide Department, he had a conversation with the prosecutrix. Following this conversation, a warrant was obtained for the arrest of appellant. Appellant was arrested on May 7, 1974.

At this point the State rested. There was no motion to exclude the State’s evidence.

Sarah Johnson testified that she was the mother of the appellant. In the early morning hours of April 28, 1974, appellant came home, bringing a girl, the prosecutrix, with him. The prosecutrix was not crying, nor did she appear to have been crying. The girl’s eye makeup was not smeared. Nor was her hair in disarray. Her clothes were in order. Mrs. Johnson further testified that they told her that they had had car trouble.

Sergeant John Ray testified that he was employed by the Hoover Police Department. On April 28, 1974 Ray responded to a call that a couple was having car trouble. Arriving at the home of a Mr. Bradley on Laredo Drive, Ray found appellant and the prosecutrix standing on the front porch with Bradley. From the record:

“Q. What did ya’ll do at that point?
“A. They told me that their car was stuck in a driveway down the street, which is a steep hill from Mr. Bradley’s house.
“We got my patrol car and went down to where this car was stuck in the driveway.
“Q. Now, was that front porch lighted? “A. Yes, sir, it was.
“Q. Did you have an opportunity to observe the young lady?
“A. Somewhat, yes, sir.
“Q. Do you recall what she was wearing?
“A. No, sir.
“Q. Did you observe or can you recall her appearance?
“A. Not that clearly, no, sir.
“Q. Was there anything to her appearance that was so out of the ordinary that your attention was directed to it?
* * * * * *
“A. I don’t recall seeing anything out of the ordinary.
“Q. All right. So, did you have any conversation with the young lady?
“A. Not that I recall, no, sir.”

When Ray, prosecutrix and appellant arrived at the Mustang, the prosecutrix went straight to the stalled car and got behind the wheel. Ray and appellant were unable to get the car out of the ditch, so Ray called a wrecker. The prosecutrix remained in the Mustang until the wrecker arrived. Ray made no report of the incident.

W. L. Waldrop testified that he was employed by the Hoover Police Department and that he was on duty in the early morning hours of April 28, 1974. Waldrop responded to the same call as had Ray and found Ray already on the scene. Waldrop recognized appellant and asked him if he were by himself. The appellant responded, no, and told Waldrop that his girl friend was inside the Mustang. At that time Wal-drop noticed the prosecutrix. After the wrecker pulled the car out, Waldrop left the scene. He took no action based on the prosecutrix’s appearance.

Douglas M. Purser testified that he was self-employed and ran Purser and Watkins Wrecker Service. Purser testified that on April 28, 1974, he pulled appellant’s car out of a ditch in Hoover, Alabama. The prose-cutrix was sitting in the car at the time. At some point Purser saw a knife in a scabbard stuck down by the console of the car. Purser further testified that he drove appellant and the prosecutrix to appellant’s home. On the trip there, the prosecutrix asked Purser if he worked on car headlights and Purser answered that he did, giving her a business card which she gave the police later. Purser further testified that appellant gave him a bad check and that he thought he should have made the check good.

On cross-examination Purser testified that the prosecutrix appeared to have been crying. From the record:

“Q. Was her appearance such that you would — that you were of the opinion that something was out of the ordinary?
“A. She acted like she was upset. And I made the statement that it was awful late at night to be out looking at new homes. And he replied yeah, it is rather late. And as far as her reply, she didn’t have any.
“Q. She didn’t say anything, right?
“A. She didn’t say anything.
“Q. The whole time?
“A. Other than when she asked me about a card.
“MR. DONAVAN: Okay. That’s all.”

Mrs. Johnson was then recalled. She testified that when appellant left her home to take the girl home, he was gone fifteen minutes. She further stated that appellant did not carry a knife of any kind.

Appellant then recalled the prosecutrix. She testified that she returned to the apartment on Ensley Avenue about 5:00 a. m. The prosecutrix did not remember seeing a knife after she and appellant first got out of the car at the house where the incident occurred. She told the police that the weapon was “probably” a hunting knife. The prosecutrix did not remember the route appellant took from his home to the apartment where her car was left.

After the verdict was returned, and judgment passed, appellant filed a motion for new trial, which the court denied. Among the grounds stated were: (1) that the verdict was against the weight of the evidence, (2) that the trial court refused to allow the witness Purser to be treated as hostile, and did not allow a recess for the witness to be located, (3) that the trial court erred in refusing to give the oral charge as requested.

Appellant contends in brief that he was surprised by the testimony of the witness Purser that he saw a knife in appellant’s car. It does not appear that appellant raised this point at the time he asked that he be allowed to treat Purser as a hostile witness. Rather, appellant specifically stated that he was concerned about which party was the last to leave the scene when appellant’s car was pulled out of the ditch by Purser’s wrecker. That point was correctly considered immaterial by the trial court. It is not error to refuse to allow a party to impeach a witness on a fact which is immaterial. Gamble, McElroy’s Alabama Evidence, 3rd Edition, Section 156.01(5).

As to the trial court’s failure to allow a recess to recall Purser, no error resulted. First, appellant did not request a recess to locate the witness. Secondly, appellant stated that he would impeach Purser, not by prior inconsistent statements of the witness, but through the testimony of other witnesses. Thus, Purser’s presence in court was not required for this method.

At the conclusion of the court’s oral charge, the following occurred:

“What says the State?
“MR. DON AVAN: The State is satisfied.
“THE COURT: What says the Defendant?
“MR. LEDBETTER: We are not satisfied, Your Honor.
“THE COURT: All right.
“MR. LEDBETTER: Shall I approach the bench?
“THE COURT: Well, either way. What would you like?
“MR. LEDBETTER: Well, I would like the jury to be charged, first of all, on the degree of resistance required—
“THE COURT: On what?
“MR. LEDBETTER: On the degree of resistance required of the woman.
“THE COURT: Do you have any charges prepared that you would like for me to read?
“MR. LEDBETTER: Not a specific charge, Your Honor, on that point.
“THE COURT: All right.
“MR. LEDBETTER: And secondly, I would like for the jury to be charged as to the weight of — the weight that should be given to the evidence; that they should consider the demeanor of each witness, that if they should find that a witness is not telling the truth on a material fact that they may believe or disbelieve the witness’ testimony entirely.
“THE COURT: Have you prepared a charge for me that you would like for me to give?
“MR. LEDBETTER: No, sir, I haven’t. I would just request those usual type charges.
“THE COURT: I will read something else pertaining to rape.
“Force overcoming the resistance of a woman is an indispensable element in the offense of rape. It is sufficient if it was a constructive force, such as duress or being put in fear of personal injury or violence.
“A lack of consent on behalf of the woman to sexual intercourse is one of the elements of the offense of rape. Consent obtained by duress or fear of personal violence is not consent within the meaning of the law. The consent of a woman yielded at any time before the act of penetration was completed is a valid defense.
“Now, if you believe that any witness has willfully testified falsely as to a material matter in the case or has sworn falsely as to any material matter in the case, then in your discretion you may disregard all or any part of that witness’s testimony. These are matters for you to work out in your sound discretion in arriving at a true verdict.
“You take into the jury room your common sense and common knowledge of every day affairs of men. And you are expected to use that common sense and common knowledge in arriving at a just verdict.
“MR. LEDBETTER: I would like that they be charged that the woman must offer a reasonable degree of resistance under the circumstances.
“THE COURT: Do you have any charge that you want me to give written out?
“MR. LEDBETTER: No, sir. I don’t have it written out.
“THE COURT: All right. Overruled. Anything else?
“MR. LEDBETTER: No, sir.
“MR. DONAVAN: You mean you have denied to give that charge?
“THE COURT: What?
“MR. DONAVAN: You have refused to give that charge?
“THE COURT: Yes. Unless he has one written out. I have given the law on rape.
“MR. LEDBETTER: Do I have time to write it?
“THE COURT: No. Unless you have already written—
“MR. DONAVAN: I would object to that.
“THE COURT: Not unless you have it written out now.”

It is true that the trial court cannot fix any particular time during the trial on which written charges must be presented. Smith v. State, 51 Ala.App. 527, 287 So.2d 238, cert. denied, 292 Ala. 750, 289 So.2d 808; Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. denied, 291 Ala. 776, 280 So.2d 797. However, in Coatney v. State, 49 Ala.App. 385, 272 So.2d 593, a similar error was complained of and this Court stated that since no written charges were present in the record it would be necessary to resort to “speculation to guess” what the tendered charges said. This issue is not preserved for review.

Appellant contends that the trial court erred in allowing the following question to be answered.

“Q. And what was he referring to, in your opinion?
“MR. LEDBETTER: I object to the phrasing of that question. I object to the phraseology of that question.
“THE COURT: You are asking Miss Coleman what he was referring to? Is that the question?
“MR. DONAVAN: Yes, sir.
“THE WITNESS: Back in the alley when I told him that I was on my period. And there was no evidence that I was.”

Appellant argues in brief that a person is precluded from testifying that another person knew a certain fact or that another felt a certain way. This issue was not preserved for review. A specific ground of objection waives all other grounds. Alabama Digest, Criminal Law, «=>695(5).

Finally, appellant contends that the evidence is not sufficient to sustain his conviction for rape. He specifically points to the opportunities that prosecutrix had to make a complaint, when she remained silent. Although a failure to make a timely complaint after the rape may cast doubt on the veracity of the prosecutrix’s testimony, it does not disprove the charge. The truth of the, charge remains for the jury. Clark v. State, 28 Ala.App. 448, 186 So. 778. As seen from the facts set out above, the testimony of prosecutrix, alone, if believed by the jury, was sufficient to sustain appellant’s conviction. Even the uncorroborated testimony of a prosecutrix will support a rape prosecution. Daniels v. State, Ala.Cr.App., 343 So.2d 566.

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Ray L. JOHNSON.
    78-130.
    Supreme Court of Alabama.
    Dec. 22, 1978.
   SHORES, Justice.

WRIT DENIED.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Owen McGOVERN, Jr., Respondent.
    No. 54290.
    Supreme Court of Florida.
    Oct. 26, 1978.
    G. Richard Singeltary, Bar Counsel, Lees-burg, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

The report of the referee in grievance proceeding has been filed with us. No review has been sought by the attorney, but we are required to review the report of the referee. Rule 11.09(3)(f).

In Count I, the referee reported that the attorney commingled trust funds with personal and office funds in that he used his trust account to conduct personal business and overdrew the trust account on occasions from 1974 through 1976. The report also contains the following:

1)In May 1976, Respondent represented a seller in a property transaction involving a few acres of land and a double-wide mobile home in Marion County. The buyers were Mr. and Mrs. McCleod who were working through their realtor. Total price of the transaction was in excess of $27,000.
2) The buyers received a closing statement from Respondent on July 23, 1976. Having previously deposited $1,000, they sent a check for $26,000 to the realtor on July 26,1976, to cover the costs necessary to complete the sale. He turned it over to Mr. McGovern.
To finish the transaction and secure title to the trailer, sales tax and transfer fees on the doublewide mobile home had to be paid. The buyers’ one-half share was $251.10, which was part of the money forwarded through the realtor to Respondent who was to pay the fees and secure the documents.
3) Over the next several months the buyers failed to receive the necessary transfer papers to the trailer. Their attempts to contact Respondent in September 1976 and December 1976, produced no results. Efforts by their realtor through February 1977 failed to induce Respondent to pay the taxes and fees and produce the titles. When the realtor was able to contact Respondent in January 1977, he indicated the delay was due to slowness in Tallahassee.
4) After many fruitless phone calls, the realtor’s attorney sent McGovern a letter dated February 9, 1977, requesting Respondent complete the matter. He received no response.
5) Finally, in July 1977, the McCleods requested their realtor to utilize the duplicate powers of attorney they had given him to secure duplicate titles. The realtor then had to contact the former owner who was located in Illinois to secure a power of attorney from him to secure the titles.
6) The McCleods also had to pay the entire amount due on taxes and fees which totaled $501.20, to secure valid titles to the doublewide trailer, as opposed to the one-half share they originally were to pay, pursuant to the closing.
7) The McCleods have received no portion of their $251.10 back from Respondent.

Case 05A 76 019

1) In September 1975, as attorney for one party in a dissolution of marriage case, Respondent arranged to sell approximately three acres, a house and two mobile homes in Marion County to Billie Ruth Greene for $15,000. Mrs. Greene was not then represented by counsel.
2) The land and house were held by the seller and his ex-wife as tenants in common.
3) Mrs. Greene gave Respondent a total of $3,810 to hold in escrow until the seller’s ex-wife concurred in the sale. She gave Respondent the bulk of the money by checks dated September 26, 1975, with the remaining $500 paid before the end of the year.
4) The Respondent gave Mrs. Greene a handwritten receipt for $3,000 dated September 26, 1975, which promised return of her money if the deal did not close.
5) Mr. McGovern told her it would cost $3,500 to buy out Mrs. Robinson’s interest. Mrs. Robinson’s attorney stated that the price for her interest, discussed during the summer of 1975 when the deal was being negotiated, was $3,000 plus the furniture. In fact, his client moved out of the house upon being promised the same. Despite promises over the next several weeks by Respondent, no money was forthcoming. Finally, Respondent’s secretary advised Mrs. Robinson’s attorney that Respondent did not want to see him.
6) Little or no action was taken by Respondent to secure Mr. Robinson’s consent to enable the sale to close over the next several months and no closing date was ever agreed on.
7) Meanwhile, the attorney representing Mr. Robinson filed a partition action for his client in late 1975. Mrs. Greene attended one hearing with Mr. Robinson. Respondent was not present. Thereafter on March 17, 1976, Mrs. Greene sought legal counsel to assist her.
8) Mrs. Greene subsequently was able to contact Mr. McGovern who asked her to delay action for a short period and he would negotiate a credit for her on the purchase with Mr. Robinson’s attorney. On March 19, 1976, she told her attorney she had contacted him and he stated he had contacted Mrs. Robinson’s attorney and that the contract would be closed shortly. Her new counsel called the other attorney and found Mr. McGovern had made no contact with him.
9) Her attorney’s efforts to contact McGovern by telephone and a letter dated March 24, 1976, during this period of time produced no results.
10) On March 30, 1976, her attorney filed suit for conversion against Respondent seeking return of the monies she had paid. He also filed a motion to intervene in the partition action and went to the authorities regarding possible criminal action.
11) On May 5, 1976, Respondent contacted her attorney who stated he told him he just discovered the March 24, 1976, letter and had placed her money in the hands of an individual to bid in for her at the foreclosure sale of the property-
12) On the same day a woman delivered $3,837.50 in cash to the office of Mrs. Greene’s attorney.
13) Eventually, Mrs. Robinson bought out her husband’s interest in the land. Mrs. Greene retained one of the trailers Mr. Robinson had signed over to her earlier.
14) For seven months Respondent retained at least $3,000 of Mrs. Greene’s money and some $500 more for over four months. He failed to apply any of it to the purpose it had been given to him. He also failed to contact the attorney for Mrs. Robinson despite knowledge she was ready to accept the offer which he apparently was able to complete. His refusal to see or speak with this attorney subsequently led to the partition action.
15) Although Mrs. Greene was not his client, Respondent had a duty to apply the money for the purposes indicated or to return it to her. He did the latter only after suit for conversion was filed against him and the prosecuting authorities contacted.

The Respondent attorney was found guilty of all charges and it was recommended by the referee that the Respondent be disbarred from the practice of law in Florida. This attorney has evidenced a total lack of understanding of his responsibilities as an attorney and to members of The Florida Bar, and further gives no reason either by conduct or otherwise to be entrusted with the authority to practice law.

The recommendation of the referee is approved and Respondent, Owen McGovern, Jr., is disbarred from the practice of law in Florida. The disbarment shall be effective on November 27, 1978, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a motion for rehearing shall not alter the effective date of this disbarment.

Costs in the amount of $1,187.10, as itemized in the report of the referee, are hereby assessed and charged to the Respondent, Owen McGovern, Jr.

It is so ordered.

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


author: SUNDBERG, Justice,

text:
    BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Airport Police, and American Home Assurance Company, Petitioners, v. John J. PICHARELLO, Dade County Board of County Commissioners (Self-Insured), and Florida Industrial Relations Commission, Respondents.
    No. 51893.
    Supreme Court of Florida.
    Rehearing Denied Nov. 22, 1978.
   This cause having been submitted to the Court upon the transcript of record, briefs and argument of counsel for the respective parties, to review the order of the Industrial Relations Commission; and

The Court finding no departure from the essential requirements of law, IT IS ORDERED that certiorari is denied. See Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974).

ENGLAND, C. J., and BOYD, OVER-TON and HATCHETT, JJ., concur.

SUNDBERG, J., dissents with an opinion.

ALDERMAN, J., dissents.

SUNDBERG, Justice,

dissenting.

I respectfully dissent. I would grant the petition for certiorari, quash the order of the Industrial Relations Commission, and adopt the special concurring opinion of Commissioner Canaday as the opinion of this Court.


author: SUNDBERG, Justice.

text:
    Ernest THOMAS, Petitioner, v. CITY OF VERO BEACH and Royal Globe Insurance Co., and Florida Industrial Relations Commission, Respondents.
    No. 52521.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Rehearing Denied Jan. 9, 1979.

      Stewart Cohen of Meyers, Mooney & Adler, Orlando, for petitioner.
    Bradford L. Jefferson of Brennan, McAli-ley, Albury & Hayskar, Fort Pierce, for respondents.
   SUNDBERG, Justice.

By petition for writ of certiorari we are asked to review an order of the Industrial Relations Commission (IRC) affirming an order of the Judge of Industrial Claims (JIC) which held that Section 440.15(10), Florida Statutes (1975), is constitutional and its eighty percent ceiling on compensation benefits applicable to petitioner and, accordingly, reduced the weekly benefits to petitioner. In addition, the JIC declined to award attorney’s fees to petitioner’s counsel for his efforts to defeat respondents’ attempt to reduce the weekly workmen’s compensation benefits payable to petitioner. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and Section 440.27(1), Florida Statutes (1975). In accordance with Florida Appellate Rule 3.10e, we have dispensed with oral argument. See also Florida Rule Appellate Procedure 9.320.

Petitioner sustained injury arising out of and in the course of his employment by the City of Vero Beach, respondent, on July 18, 1973. The average weekly wage of petitioner at the date of his accident was $136.80. Petitioner was adjudicated permanently and totally disabled on June 8, 1975, and the employer/carrier began paying him $80.00 per week in permanent total disability benefits.

On October 24,1975, the employer/carrier filed a Petition for Declaratory Decree and/or Approval to Reduce Weekly Compensation Benefits with the JIC, seeking to reduce petitioner’s weekly permanent total disability benefits to $38.64. Section 440.-15(10), Florida Statutes (1975), provides that a claimant is only entitled to a maximum of eighty percent of his average weekly wage in combined social security and workmen’s compensation benefits. Eighty percent of petitioner’s average weekly wage was $109.44. However, the employer/carrier alleged that petitioner was receiving $70.80 weekly in social security disability benefits which, in combination with the $80.00 workmen’s compensation benefits, provided weekly benefits of $150.80. Consequently, the employer/carrier requested a ruling that petitioner was entitled to only $38.64 in weekly workmen’s compensation permanent total disability benefits, rather than $80.00 per week, in order that these benefits, combined with his social security benefits, would not exceed the eighty percent ceiling imposed by Section 440.15(10). In response, petitioner alleged that the eighty percent limitation contained in Section 440.15(10) was inapplicable because subsection (l)(e) of the enactment, which provides a five percent annual increase in workmen’s compensation benefits, applied without regard to the limitation imposed by subsection (10). Alternatively, petitioner posited that the statutory provision in issue denied him equal protection of the law in arbitrarily imposing the eighty percent ceiling on recipients of social security benefits, while failing to similarly apply to recipients of other benefits. The JIC concluded that Section 440.15(10) is constitutional and applicable to petitioner’s claim. Because petitioner’s attorney had negotiated an increase in the average weekly wage of his client from $136.80 to $162.50 prior to the JIC’s ruling, however, the maximum weekly benefits permissible under Section 440.15(10) were $130.00 rather than the previous $109.44. The JIC found that petitioner was receiving $69.23 in social security disability benefits rather than $70.80 as alleged by the employer/carrier, and $80.00 per week in permanent total disability benefits, a total of $149.23. Consequently, petitioner was determined to be entitled to only $60.77 in weekly workmen’s compensation benefits and previous benefits were reduced accordingly. The JIC declined to award attorney’s fees to petitioner’s counsel for his efforts in this case. On appeal, the IRC affirmed the order of the JIC.

We grant the petition for writ of certio-rari only with respect to the issue of attorney’s fees, finding no departure from the essential requirements of law in any other respect.

After a review of the record in this cause, we conclude that attorney’s fees should have been awarded to petitioner’s counsel. An attorney representing a claimant is entitled to a fee when he has secured additional benefits or compensation for the claimant. See Section 440.34(1), Florida Statutes (1975); Basford v. Florida Power & Light Co., 246 So.2d 1 (Fla.1971); cf. Ringling Bros. Barnum and Bailey Combined Shows v. Jones, 134 So.2d 244 (Fla.1961). Counsel for petitioner was successful in negotiating an increase in the latter’s average weekly wage from the previous $136.80 to $162.50. As a result of obtaining this increase in petitioner’s average weekly wage, his workmen’s compensation benefits were reduced to $60.77, rather than to $38.64. The net effect was a benefit to petitioner of $22.13 in weekly workmen’s compensation benefits. Consequently, petitioner’s counsel secured the monetary benefit to his client necessary to justify an award of attorney’s fees.

Accordingly, the petition for writ of cer-tiorari is granted and that part of the order of the IRC affirming denial of attorney’s fees is quashed and this cause is remanded to the IRC with directions to remand to the JIC for disposition in accordance with this opinion.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Robert Lee HILL, Appellee.
    No. 53830.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., and Janet Reno, State’s Atty., and John P. Durant, Asst. State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. James WILSON, Appellee.
    No. 53956.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., and Janet Reno, State’s Atty., and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Victor HUTCHINS, Appellee.
    No. 53957.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., and Janet Reno, State’s Atty., and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellant.
    Stanford Blake, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Ramon LOPEZ, Appellee.
    No. 53958.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst: Atty. Gen. and Janet Reno, State’s Atty., and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Dwight BROWN, Appellee.
    No. 53981.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen. and Janet Reno, State’s Atty. and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. James McCOY, Appellee.
    No. 53982.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., and Janet Reno, State’s Atty., and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Donald Hillery HEARN, Appellee.
    No. 54055.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James G. Horrell, Asst. State’s Atty., Bar-tow, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978); State v. Lewis, 364 So.2d 1223, (Fla. 1978); State v. Belgrave, 364 So.2d 1225, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Donald Hillery HEARN, Appellee.
    No. 54056.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James G. Horrell, Asst. State’s Atty., Bartow, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978); State v. Lewis, 364 So.2d 1223, (Fla. 1978); State v. Belgrave, 364 So.2d 1225, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Hershell R. CAMERON, Appellee.
    No. 54100.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Kelley W. Collier, Asst. State’s Atty., Bar-tow, for appellant.
    J. O. Johnson, Public Defender and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10, (Fla. 1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978); State v. Lewis, 364 So.2d 1223, (Fla. 1978); State v. Belgrave, 364 So.2d 1225, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Harold Clinton KNIGHT, Appellee.
    No. 54105.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and J. Lancaster Haviee, Asst. State’s Atty., Bar-tow, for appellant.
    Dan P. Brawley, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 862 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Harold Clinton KNIGHT, Appellee.
    No. 54106.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and J. Lancaster Haviee, Asst. State’s Atty., Bar-tow, for appellant.
    Dan P. Brawley, Lakeland, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Brian Clark MOORE, Appellee.
    No. 54108.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen., and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and C. Michael Fischer, Asst. State’s Atty., Bar-tow, for appellant.
    J. 0. Johnson, Public Defender and Jon J. Hall, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla. 1978); State v. Lewis, 364 So.2d 1223 (Fla. 1978); State v. Belgrave, 364 So.2d 1225 (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Donald Junior DAVIS, Appellee.
    No. 54130.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James G. Horrell, Asst. State’s Atty., Bar-tow, for appellant.
    J. 0. Johnson, Public Defender and Jon J. Hall, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Curtis DARRELL, Appellee.
    No. 54166.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Janet Reno, State’s Atty., and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Leonard CHAIT, Phyllis B. Chait, and Robert Lee Harris, Appellees.
    No. 54340.
    Supreme Court of Florida.
    Oct. 24, 1978.
    T. Edward Austin, State’s Atty. and E. McRae Mathis, Asst. State’ Atty., Jacksonville, and Robert L. Shevin, Atty. Gen., Tallahassee, for appellant.
    Barry L. Zisser and George A. Pierce, Jr., Jacksonville, for appellees.
   PER CURIAM.

Reversed. See State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. David A. TEGETHOFF, Appellee.
    No. 54387.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Janet Reno, State’s Atty. and John P. Durant, Asst. State’s Atty., Miami, for appellant.
    Gordon H. Groland of Groland & Brown, P. A., Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225 (Fla.1978).

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


text:
    STATE of Florida, Appellant, v. Jennifer JOHNSON, Appellee.
    No. 54490.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and A. R. Mander, III, Asst. State’s Atty., Dade City, for appellant.
    William Gregory Sestak, Asst. Public Defender, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Ronald Thomas PERRY and David Lynn Caddell, Appellees.
    No. 54562.
    Supreme Court of Florida.
    Oct. 24, 1978.
    T. Edward Austin, State’s Atty. and War - ren K. Anderson, Jr., Asst. State’s Atty., Jacksonville, and Robert L. Shevin, Atty. Gen., Tallahassee, for appellant.
    Louis 0. Frost, Jr., Public Defender and Susan T. Lewis, Asst. Public Defender, and Robert W. Elrod, Jacksonville, for appellees.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Jasper WALKER, Appellee.
    No. 54694.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., and Janet Reno, State’s Atty. and John P. Durant, Asst. State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. State v. Belgrave, 364 So.2d 1225, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Mack RUFFIN and Freddie Lee Hall, Appellees.
    No. 54713.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and Phillip VanAllen, Asst. State’s Atty., Dade City, for appellant.
    Jack D. Hoogewind, Asst. Public Defender, Dade City, and Charles D. Waller of Waller & Hersch, Dade City, for appellees.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Ernest ULRICH, Appellee.
    No. 54714.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and Phillip VanAllen, Asst. State’s Atty., Dade City, for appellant.
    Ronald Hoffer, Zephyrhills, and Larry S. Hersch of Waller & Hersch, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217 (Fla. 1978).

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


text:
    STATE of Florida, Appellant, v. Ivory BLAKE, Appellee.
    No. 54750.
    Supreme Court of Florida.
    Oct. 24, 1978.

      Robert L. Shevin, Atty. Gen. and Richard G. Pippinger, Asst. Atty. Gen., Tampa, and James T. Russell, State’s Atty. and A. R. Mander, III, Asst. State’s Atty., Dade City, for appellant.
    Larry S. Herseh of Waller & Hersch, Dade City, for appellee.
   PER CURIAM.

Reversed. State v. Allen, 362 So.2d 10 (Fla.1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978).

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


text:
    Tim WOULARD, Appellant, v. STATE of Florida, Appellee.
    No. 54800.
    Supreme Court of Florida.
    Oct. 24, 1978.
    Elton H. Schwarz, Public Defender and Stephen L. Kramer, Asst. Public Defender, Fort Pierce, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert E. Stone, State’s Atty., Fort Pierce, for appellee.
   PER CURIAM.

The order of the trial judge, denying the motion to dismiss on the grounds that Section 812.014 is unconstitutional, is affirmed. See State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223, (Fla. 1978); State v. Belgrave, 364 So.2d 1225, No. (Fla. 1978); Dunnigan v. State, 364 So.2d 1217, (Fla. 1978). This case is transferred to the District Court of Appeal, Fourth District, for consideration of the remaining issues raised by appellant.

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


author: HATCHETT, Justice.

text:
    MANATEE COUNTY, Florida, a political subdivision, Appellant, v. TOWN OF LONGBOAT KEY, Florida, City of Bradenton Beach, Florida, and City of Bradenton, Florida, Municipal Corporations, Appellees.
    No. 53142.
    Supreme Court of Florida.
    Oct. 26, 1978.
    Rehearing Denied Jan. 9, 1979.

      E. N. Fay, Jr. of Mann & Fay, Bradenton, for appellant.
    I. W. Whitesell, Jr. of Wood, Whitesell & Karp, Sarasota; and William R. Lisch, Bra-denton, for appellees.
    Talbot D’Alemberte and Donald M. Mid-dlebrooks of Steel, Hector & Davis, Miami; and Richard E. Nelson of Nelson, Hesse, Cyril & Weber, Sarasota, for Sarasota County; and Robert L. Nabors, County Atty. of Nabors, Potter, McClelland & Griffith, Titusville, for Brevard County and the State Ass’n of County Com’rs of Florida, Inc., amici curiae.
    Ralph A. Marsicano, Gen. Counsel, Tampa; and Claude L. Mullís, Staff Atty., Jacksonville, for Florida League of Cities, Inc., amicus curiae.
   HATCHETT, Justice.

Does Article VIII, Section 1(h) of the Florida Constitution, as implemented by Section 125.01(6)(a), (b), Florida Statutes (1975), impose a limitation only on the power of counties to levy and collect taxes? May a municipality enforce the limitation by a lawsuit? We answer both questions in the affirmative and remand these consolidated cases to the trial court. Our jurisdiction is provided by Article V, Section 3(b)(1), of the Florida Constitution.

In 1968 the people of the State of Florida approved Article VIII, Section 1(h) of the Florida Constitution, which provides:

TAXES; LIMITATION.
Property situate within municipalities shall not be subject to taxation for services rendered by the county exclusively for the benefit of the property or residents in unincorporated areas.

To implement this constitutional provision, the Legislature amended Section 125.-01, Florida Statutes, by enacting Ch. 74— 191, Laws of Florida, codified as Section 125.01(6)(a) and (b), Florida Statutes, which provides:

(a) The governing body of a municipality or municipalities by resolution, or the citizens of a municipality or county by petition of 10 percent of the qualified electors of such unit, may identify a service rendered specially for the benefit of the property or residents in unincorporated areas and financed from county-wide revenues and petition the board of county commissioners to develop an appropriate mechanism to finance such activity, which may either be by taxes, special assessments, or service charges levied solely upon residents or property in the unincorporated area, by the establishment of a municipal service taxing or benefit unit pursuant to paragraph (q) of subsection (1) of this section or by remitting the identified cost of service paid by the taxes levied upon property situate within the municipality or municipalities to the municipality or municipalities.
(b) The board of county commissioners shall within 90 days, file a response to such petition, which shall either reflect action to develop appropriate mechanisms or reject said petition and state findings of fact demonstrating that the service does not specially benefit the property or residents of the unincorporated areas.

Following the directions of the statute, Longboat Key, Bradenton, and Bradenton Beach, presented resolutions to the Manatee County Board of County Commissioners identifying “service[s] rendered specially for the benefit of the property or residents in unincorporated areas and financed from county-wide revenues.” In spite of the statute’s mandatory language, the board of county commissioners took no action, as contemplated by the statute, on the resolutions. The cities filed lawsuits which were consolidated for trial.

After taking evidence, the trial court found: (1) that-inequities existed between the taxes paid by property owners in the municipalities and the services received by these taxpayers from Manatee County; (2) that Bradenton and Bradenton Beach had received at least as much in services as its property owners had paid in taxes; (3) that property owners of Longboat Key had paid more in ad valorem taxes for two years than they had received in services; (4) that Manatee County must pay Longboat Key for 1975-76 the sum of $276,714.99 and for 1976 — 77 the sum of $227,097.10; and (5) that Manatee County must establish municipal service taxing units or districts to correct the imbalance. The county appealed the trial court’s order to the Second District Court of Appeaí, and the cities of Branden-ton and Longboat Key cross-appealed.

The Second District Court of Appeal, in a logical and well written opinion, held: (1) that “The only services which must be considered are those rendered by the county which result ‘in no real or substantial benefits to the municipal property owners’,” citing City of St Petersburg v. Briley, Wild and Assoc., Inc., 239 So.2d 817 (Fla.1970); (2) that Article VIII, Section 1(h), Florida Constitution, is a limitation not only on property taxes but also on revenue derived from other sources; (3) that “all but one of the services enumerated in the [trial court’s] final judgment are being rendered exclusively for the benefit of the residents or property owners of unincorporated areas;” (4) that the trial court “was within its authority to order the county to take the steps necessary to insure that in the future the cost of such services shall be borne only by those in the unincorporated areas;” (5) that the trial court “exceeded its authority in specifically directing the establishment of taxing districts when the' statute gives to the county the option of determining which method shall be followed to accomplish this result;” and (6) that a “court can properly order a county to reimburse a city for taxes already paid by its property owners which went to pay for services rendered exclusively for the benefit of unincorporated areas.” The court then “fashion[ed] a suitable method for the resolution of [the] controversy.” The case was remanded to the trial court for redetermination of what the county should be required to remit to the municipalities under a formula devised by the district court.

To determine the principal questions in this important case, we must consider the following issues: (A) whether Article VIII, Section 1(h), Florida Constitution, is a limitation only on the power of a county to levy and collect taxes, or a limitation on the use of all county funds; (B) whether Article VIII, Section 1(h), Florida Constitution, and Section 125.01(6), Florida Statutes, waive sovereign immunity; (C) whether a taxpayer is an indispensable party to an action brought by a municipality to remedy the effects of dual taxation under Section 125.-01(6), Florida Statutes.

I

Article VIII, Section 1(h), Florida Constitution, is only a limitation on the power of counties to tax. We have so held in a number of cases. In City of St. Petersburg v. Briley, Wild and Assoc., Inc., supra, we held that this constitutional provision “prohibits the taxation of municipally-situate property by the County for any services rendered by the County where no real or substantial benefit accrues to city property from such services. Conversely, this provision permits such taxation where such service is found to be of real or substantial benefit to such property.” (At 822, 823.) (Emphasis supplied.) In that case, we stated the issue presented for determination to be:

The critical question in this case is whether the expenditure of county-wide levied tax monies is authorized for the proposed project. Article VIII, Section 1(h), proscribes the use of tax monies received from taxes levied upon property situate within municipalities “for services rendered by the County, exclusively for the benefit of the property or residents in unincorporated areas.” [At 821.] [Emphasis supplied.]

In resolving that issue, we said:

It is evident from such historical background that the evil sought to be remedied was the taxation of municipally-located property for services rendered by the County which result in no real or substantial benefit to such property. [At 822.] [Emphasis supplied.]

Our statements in Alsdorf v. Broward County, 333 So.2d 457 (Fla.1976), made clear our determination that Article VIII, Section 1(h), of the Florida Constitution was a limitation on property taxation. There we said:

The mandate against city taxation for exclusive county activities is absolute and unequivocal. [Emphasis supplied.] ******
The language of the Constitution is reasonably straightforward and unambiguous. The intent of this tax limitation provision is both obvious and understandable. [At 459.] [Emphasis supplied.]

Further, we held:

We conclude, therefore, that Article VIII, Section 1(h) of the Florida Constitution is self-executing, and that with or without legislative interpretation the courts will be required to draw the lines between acceptable and prohibited municipal taxation. [At 460.] [Emphasis súpplied.]

In Tucker v. Underdown, 356 So.2d 251 (Fla.1978), while primarily concerned with the degree of benefit that must flow to the property owners in unincorporated areas before they may be included in a municipal service taxing unit, we stated:

Alsdorf, of course, was predicated on the only provision in Florida’s Constitution which expressly ties taxation to benefits received. Article VIII, Section 1(h), Florida Constitution. [At 253 n.7.] [Emphasis supplied.]

The Third District Court of Appeal, in an indirect way, has arrived at the same conclusion. In City of Hialeah Gardens v. Dade County, 348 So.2d 1174 (Fla. 3d DCA 1977), that court stated:

In responding to this argument, we initially note that it is predicated upon the presumption that franchise fees are in fact taxes. However, as the Supreme Court of Florida held in City of Plant City v. Mayo, 337 So.2d 966 (Fla.1976), franchise fees are not taxes, but rather consideration paid by the utility for the grant of the franchise. Thus, the prohibitions of Article VIII, Section 1(h), are not applicable to the franchise fees exacted by the County . . . . [At 1180.]

Following this long line of unbroken precedents, we again hold that Article VIII, Section 1(h), Florida Constitution, only limits the power of counties to levy and collect property taxes.

II

It is Manatee County’s position that this lawsuit is prohibited by the doctrine of sovereign immunity. The county points to Article X, Section 13, Florida Constitution, which provides:

Suits against the state.—

Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.

The Constitution, says the county, requires specific, clear, and unambiguous language in a statute to constitute a waiver of sovereign immunity. The county also argues that it enjoys the state’s sovereign immunity unless the Legislature provides otherwise by general law. This sovereign immunity cannot be accomplished by local law and waiver must be clear and unequivocal. We agree. Arnold v. Shumpert, 217 So.2d 116 (Fla.1968).

Section 125.01(6) outlines a procedure which seeks to force a dialogue between counties and municipalities regarding dual taxation problems. It suggests alternative methods for curing the effects of dual taxation. It mandates that after proper petition has been filed by a municipality, a board of county commissioners “shall within 90 days, file a response to such petition, which shall either reflect action to develop appropriate mechanisms or reject said petition and state findings of fact demonstrating that the service does not specially benefit the property or residents of the unincorporated areas.”

In this case petitions were properly filed, but no action was taken by the Board of County Commissioners of Manatee County. In this state of affairs, the remedy so clearly set forth by the Legislature was frustrated. The evil addressed by the people in their constitution continued. Where the Legislature has created such a clear remedy for a specifically identified evil, a court of equity will enforce that remedy.

Alsdorf v. Broward County, supra. Justice England, speaking for the court in Alsdorf, stated the conflicting considerations:

We concede, in fact, that the practical consequences of holding for the mayors may pose such horrendous fiscal problems for the administration of 67 counties that their governmental operations may be virtually incapacitated by uncertainty and lawsuits. If there were any practical way to avoid that result consistent with the Constitution, we would readily adopt it. But neither party here has offered such a solution, and we can conceive of none. We simply cannot abdicate our responsibility to follow the will of the people as expressed in the Constitution, on the grounds of administrative complexity. [At 459.] [Footnotes omitted.]

To hold that a legislative enactment providing alternative methods of relief may be enforced against a county for future tax years is far different from holding that a court may enter a money judgment against a county for past tax years. We find no authority under our constitution, the statutes, or legal precedents which support a money judgment against a county because of dual taxation problems in past years.

Ill

By Section 125.01(6), municipalities were granted the right to receive the monies to be remitted by the counties in their representative capacities for the benefit of municipal taxpayers. It would be an unrealistic statutory or legal procedure that allowed a municipality to petition for relief in its own name (or through 10 percent of its electors), to receive the amounts remitted by the counties in its representative capacity, but forbid it to file suit to enforce its remedy unless joined by a taxpayer. To enforce the remedy provided by this statute, a municipality may bring suit without joining a taxpayer.

This troublesome area of the law cries out for further action, including the identification of workable formulas for determining the amount and time of remittance to municipalities. We are now certain, however, that courts should not fashion formulas and make choices among alternatives for counties. The Second District Court of Appeal did a fine job of resolving the issues posed in this case in a fair and workable way. Language in Alsdorl encouraged that court to draw lines and fashion remedies beyond the point that we approve today. Courts must be cautious about drawing lines in areas best suited for legislative action.

We hold that Article VIII, Section 1(h) applies only to property taxation. We are aware of the possibility that with this holding, counties may use revenues not derived from property taxation exclusively for projects benefiting residents and property in unincorporated areas causing a serious imbalance in benefits received between county and municipal property owners and residents. The Legislature must address this possibility. We further hold that Section 125.01(6) allows a court of equity to determine whether a tax supported service is “rendered specially for the benefit of the property or residents in unincorporated areas and financed from county-wide revenues.” The constitutional and statutory tests are the same. We further hold that a court may order a board of county commissioners to follow the dictates of the statute, but may not enter money judgments against counties for the past tax years, and that a taxpayer is not an indispensable party to an action under Section 125.01(6).

Accordingly, the case is reversed in part, and remanded to the district court of appeal with directions that it remand to the trial court to allow the trial court (1) to determine whether law enforcement services are rendered exclusively for the benefit of residents or property in unincorporated areas, in light of the district court’s comments; (2) to vacate its money judgment and its order requiring the county to establish municipal service taxing units; and (3) for further proceedings consistent with this opinion.

It is so ordered.

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

      . Before this court, the Florida League of Cities, Inc., Sarasota County, Brevard County, and the State Association of County Commissioners of Florida, Inc., filed briefs and participated in the oral argument.

      . In light of this disposition of the case, we will not pass on the evidence questions urged by the parties.


text:
    STATE of Florida, Appellant, v. James Joseph DUDASH, Appellee.
    No. 53944.
    Supreme Court of Florida.
    Oct. 26, 1978.
    Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
   PER CURIAM.

All of the issues posed by this appeal were passed upon when we upheld the constitutionality of Section 784.07, Florida Statutes (1976), in Soverino v. State, 356 So.2d 269 (Fla.1978).

Accordingly, the trial court is reversed and the case remanded for proceedings consistent with our ruling.

It is so ordered.

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