text:
    Lillie Bell DARRINGTON v. STATE.
    3 Div. 229.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Calvin Whitesell, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III and Charles M. Allen, III, Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On the trial on an indictment charging defendant with murder in the first degree of Veronica Evon Searcy by stabbing her with a knife, a jury found defendant (appellant) guilty of murder in the second degree and fixed her punishment at imprisonment for forty years. She was sentenced accordingly.

Defendant was represented by employed counsel throughout the trial. They had together filed a written waiver of arraign-merit and a written plea of not guilty and not guilty by reason of insanity. Soon after notice of appeal from the judgment of conviction and sentence, the indigency of appellant was shown to the satisfaction of the trial court, and it appointed the same counsel to continue representation of her on appeal. However, the record shows that other counsel was employed to represent her on appeal. Her former counsel was withdrawn, and thereafter her presently employed counsel has continuously represented her on appeal.

Appellant’s counsel argues for a reversal on the ground that the court did not charge the jury as to the plea of not guilty by reason of insanity. In anticipating the possibility of a countercontention to the effect that defendant should not be held responsible for any failure to request the trial court to charge the jury as to the plea of not guilty by reason of insanity, the only other issue presented by appellant is to the effect that under all the circumstances it should not be held that there was any waiver of any right she had to have the jury charged as to the plea of not guilty by reason of insanity. We need not attempt to decide that issue in view of the conclusion stated in the next paragraph hereof.

There was no evidence on the trial that defendant was insane.

“Every person over 14 years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.” Code of Alabama 1975, § 15-16-2.

The trial court should not submit the issue of insanity to the jury unless there is evidence to sustain the plea. Rice v. State, 204 Ala. 104, 85 So. 437 (1920); Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Connell v. State, 56 Ala.App. 43, 318 So.2d 782 (1974). Appellant’s counsel does the best he can for her by arguing that “her appearance as a witness cannot be disregarded on her plea of insanity,” but we find no authority for holding that an appellate court can assume that the appearance of the accused to the trial court should have been sufficient to convince the trial court that a jury issue was presented on the special plea of not guilty by reason of insanity.

There is no contention that there was not sufficient evidence to support the verdict of the jury that defendant was guilty of murder in the second degree. Our review of the evidence convinces us that there is no reasonable basis for such a contention.

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

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    William R. DAVIS v. STATE.
    4 Div. 831.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Bill Kominos, Ariton, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful sale of marijuana. Sentence was nine years’ imprisonment.

The ease is governed by Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973), which held that it is not necessary to name the vendee of the drugs in the indictment, when the identity of the purchaser is not an element of the crime, the gravamen of which is the lawful sale of a controlled substance. A lone dissenter (Heflin, C. J.) argued the same position the defendant now presents. Adkins was followed in Jimmy v. State, 291 Ala. 687, 286 So.2d 907 (1973), and remains the law of this state. Ard v. State, 358 So.2d 792, 793 (Ala.Cr.App.), cert. denied, 358 So.2d 794 (Ala.1978). This Court is required to follow the decisions of the Alabama Supreme Court. Alabama Code Section 12-3-16 (1975).

We have searched the record and, finding no error prejudicial to the defendant, affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Cary HAWKINS v. CITY OF BIRMINGHAM.
    6 Div. 211.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Ferris S. Ritchey, Jr., Birmingham, for appellant.

      W. O. MacMahon, III, Asst. City Atty., Birmingham, for appellee.
   DeCARLO, Judge.

The appellant was charged with violating § 16-18 of the General Code of the City of Birmingham, Alabama, 1964, as amended. The complaint alleged that, on May 30, 1978, the appellant knowingly and intentionally sold, at the “Pussy Cat Adult Thea-tre” an obscene book, “Climax 2,” in violation of § 16-18, supra. Appellant was tried and convicted in the municipal court without a jury.

Appellant appealed to the circuit court, and, on October 19, 1979, he was tried by a jury, was found guilty as charged in the complaint, was sentenced to 180 days hard labor, and was fined $500.00.

Prior to trial, on October 18, 1979, the appellant filed a motion to suppress and a motion to quash. A hearing was held and both were overruled.

I

The appellant has raised the issue of “whether the trial court erred in refusing to permit appellant to call and examine witnesses selected by him in support of his motion to quash, choosing instead to adopt the testimony of witnesses given in earlier trials involving other defendants and other publications, as a basis for his overruling said motion.” At the hearing on the motion to quash, the court found that, because there was no discriminatory enforcement against adult bookstores, the motion should be overruled.

The record reveals the following:
“THE COURT: ... It [the motion] seeks to quash it [the indictment] on the grounds of discriminatory enforcement against the adult bookstores. This Court heard the testimony of Dennis McNutt in the Holderfield case, H-o-l-d-e-r-f-i-e-l-d, adult book store, Case Number CC 78-01211. And I have he was arrested May the 10th, 1978. And this Court heard the testimony of Captain Townes, T-o-w-n-e-s, Sergeant Tripplett, T-r-i-p-p-l-e-t-t, in the Coble, C-o-b-l-e case, CC 78-01428; and I have him arrested as of June 1, 1973, adult book store, on the question of discrimination. And then the Henry Starley, S-t-a-r-1e-y, case, in which I have the enforcement officers of the Birmingham Police Department bought the book on February 27th, 1978. And Walkinshaw, Sergeant Walkinshaw, testified in that case with reference to discrimination. And that testimony as far as I can tell ranges from February the 27th to June the 1st. And on the testimony of those one, two, three, four witnesses, the Court found that there was not discriminatory enforcement. And therefore, the motion to quash is overruled on that basis, and the Court adopts the testimony given in those cases. And is going to instruct the court reporter to put the testimony as to the testimony of these four people in the transcript should this case have to be appealed.
“MR. RITCHEY: . . I would object to the Court not permitting the defendant, this defendant, Cary Hawkins, in this case, putting on evidence on the question of unlawful discrimination against him and others of his class, and instead adopting or incorporating the testimony of these various police officers and witnesses in three other cases which Your Honor has previously heard. And among other grounds, one of which I think that this is not a proper procedure, that each defendant is entitled to have his case tried with witnesses presented in his behalf. The answers elicited from these witnesses might be entirely different than the answers that were given in those cases. Of course, they might also be the same. But more important, the Supreme Court of Alabama-has spoken twice now on this issue, both in the appeals of Michael Robinson and in the appeal of Henry Starley, in which they have indicated that the testimony taken in those cases was not sufficient to make out the question of unlawful discrimination.
“THE COURT: ... I certainly do overrule this motion, based on what the Court says, namely, the Court says three elements must be proven, selectivity of enforcement, selectivity that is intentional, and selectivity based on unjustifiable standards, such as race, religion or other arbitrary classifications. And I have in each one of those cases, and now in this ease I find that these three principles are not violated. I don’t think-frankly, I just don’t think they have in any case I’ve tried, and I’ve tried seemingly a load of them.”

Matters within the sound discretion of the trial court are generally not reviewable on appeal unless there has been a clear abuse of discretion. Pace v. State, 284 Ala. 585, 226 So.2d 645; Clayton v. State, 244 Ala. 10, 13 So.2d 420; Sharp v. State, 23 Ala.App. 457, 126 So. 895. Although the overruling of a motion to quash falls within the discretionary powers of the lower court, “a gross abuse of any discretion reposed in the trial court, when it clearly appears from the record, is always a matter that this court has authority to revise . . ..” [Emphasis added] Burleson v. State, 22 Ala.App. 526, 117 So. 500.

Discussing the method for determining whether an abuse of discretion has occurred, the Alabama Supreme Court, in Clayton v. State, 244 Ala. 10, 13 So.2d 420, stated:

“And while it is not necessary, to constitute abuse, that the court shall act wickedly or with intentional unfairness, it is essential to show that it has committed a clear or palpable error without the correction of which manifest injustice will be done. [I]n no case will the exercise of this discretion be reviewed where it manifestly appears that justice has been done without sacrificing the rights of defendant.” [Emphasis added].

In the present case, we believe that an abuse of discretion concerning the hearing on the motion to quash “clearly appears from the record.” The transcript reveals that the motion was overruled without affording the appellant the opportunity to call witnesses m support of his allegations. Such procedure by the lower court was error. Sims v. State, 286 Ala. 712, 246 So.2d 439; Malone v. State, 46 Ala.App. 363, 242 So.2d 409. This error resulted in “sacrificing the rights” of the appellant to be heard.

We recognize that the testimony of appellant’s witnesses, if they had been allowed to testify, may not have been different from their testimony in other cases involving other defendants. However, the possibility that their testimony may have been different also exists. Consequently, this appellant should have been afforded the opportunity to be heard.

The trial judge’s decision to overrule the motion to quash based on the testimony of witnesses in previous cases involving different defendants and different publications was a failure to conduct an adequate investigation into the facts of the present case necessary for an intelligent exercise of discretion and was, therefore, an abuse of discretion.

Appellant raised three other issues, but in light of the conclusion we reach here we deem it unnecessary to treat them.

Based on the foregoing reasons, the judgment of conviction by the Jefferson Circuit Court is hereby reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

All the Judges concur.


author: TYSON, Judge.

text:
    Johnny CHILDERS v. STATE.
    6 Div. 266.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Samuel L. Russell, of Thomason & Russell, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Johnny Childers and two others were indicted for assault with intent to murder, and after a separate trial Childers was found “guilty as charged” and sentenced to serve fifteen years in the state penitentiary.

As appellant’s sole contention on this appeal concerns the refusal of the trial court to grant appellant a continuance we do not deem an extended discussion of the facts underlying the offense charged to be necessary. The State’s evidence, though somewhat controverted, tended to show that, on July 7, 1979, appellant and one Prank Bryant were engaged in a game of pool at an establishment in Birmingham. After appellant defeated Bryant, an argument ensued, but Bryant testified that he immediately left the poolroom and was outside the building when he noticed appellant advancing on him and brandishing a knife. Bryant stated that he had not thought appellant was angry until he saw the knife, and Bryant picked up a short stick to defend himself. Appellant was accompanied by Buck Randall and Perry Goodman, the other defendants in the case, who were also armed with knives. Bryant then retreated into a house owned by Steven King and locked the door behind him. According to testimony, Randall used his knife to cut the screen on the door, kicked the door in, and then began fighting with Bryant inside King’s house. King, who had been standing on the porch and yelled to Bryant to come into the house, attempted to intervene, but was slashed first by Goodman and then stabbed by appellant. Bryant was rendered unconscious and King critically injured. Appellant’s version of the melee differed somewhat, and he blamed Bryant for initiating the hostilities. Appellant further stated that he slashed at King with a knife only after King began beating him.

Appellant and his two companions were indicted on December 7, 1979, and counsel was appointed for appellant at his arraignment on December 19, 1979. Trial for the three was set initially for January 28, 1980, but was re-set for February 14, 1980. It appears that each defendant was represented by a different attorney and that, on February 13, the three attorneys, the prosecutor and the trial judge met and agreed that the three defendants would be tried together the next day. On the morning of the 14th, however, the prosecutor moved that the three be tried separately and the trial court called appellant’s case first, to commence that day. Counsel for appellant moved the court for a continuance of one day, which motion was denied.

Though it appears that counsel for one of the other defendants did the arguing in support of the motion, we quote at length from the trial transcript in order to shed light on appellant’s contentions:

“THE COURT: I will say that .everybody agreed yesterday to try all three together. You don’t have to convince me as to that.
“MR. TERRY: Also, as to the preparations that occurred. What has happened since yesterday, the three attorneys have prepared this case in a concerted effort to try this case with all three defendants being present.
“The preparation as far as jury charges, subpoenaing witnesses, voir dire questions-
“THE COURT: You mean different witnesses for the three?
“MR. TERRY: No, sir, same ones but they are all subpoenaed under one person’s name because we thought all three would be tried altogether.
“THE COURT: Are they here?
“MR. TERRY: I’m not sure if they are all here. We haven’t checked them all. We don’t see one that is supposed to be here yet.
“THE COURT: When were they subpoenaed? I hope you are not going to say yesterday?
“MR. TERRY: No, two days ago. He has been served and been returned, if I am correct. They were also issued two weeks ago. The Court has re-issued those same subpoenaes when this docket first came out.
“In particular, my name on one of them. We issued this one several weeks ago when this case was set on the docket. I don’t know if that would leave Mr. Russell in the position of not being able to compel this witness into Court at this time.
“THE COURT: If that is a problem, I will compel him.
“MR. TERRY: You will compel him bn my subpoena?
“THE COURT: I sure will.
“MR. TERRY: We have also prepared voir dire questions, prepared opening and closing statements based on three people being tried at one time.
“We spent last night preparing it this way. All three witnesses were-all the witnesses and so forth were talked to by each individual lawyer. In other words, we split these witnesses up and prepared it this way, so no one lawyer knows all the testimony of all these witnesses. We have not had a personal contact with all the witnesses under this circumstance.
“THE COURT: You just started preparing the case yesterday?
“MR. TERRY: Well, we had prepared some of it before. What has happened in this situation, as far as the final efforts and the final conclusions as far as voir dire questions, final preparation for trial, there has been an individual split-up of a particular aspect of this trial.
“MR. TERRY: I would add also, as a part of Mr. Russell’s objection, he has asked me to state what has happened here-the scheme or situation that has occurred.
“Also, not only as a motion for continuance, but a part of his objection would be that it has created a situation that is detrimentally unfair to his clients, and creates a situation .where his client is placed in jeopardy by the acts of the Court.
“And, the entire situation or the statements made by the Court to the defendants’ attorneys, creates a scheme that is detrimental and that has been relied on the defendants-
“THE COURT: I don’t understand what you are saying.
“MR. TERRY: Well, what it has created, is a situation where preparations have been made. The positions have been changed, attitudes have been taken, or witnesses prepared and so forth that in concert with all three being tried at once. “Now, that this change of the Court’s view of this case, in light of the District Attorney’s motion, has placed them in such a position that not only a continuance would be in order, but the whole scheme or system is detrimental to their rights of a fair trial.
“THE COURT: To be tried separately?
“MR. TERRY: Well, under these circumstances.
“No, sir, under these circumstances, it would be the denial of rights to a fair trial.
“If the parties-
“THE COURT: Let me ask Mr. Russell a question, since it is his case.
“Did you announce this case ready?
“MR. RUSSELL: Yes, sir.
“THE COURT: And, at that time, you thought you were going to be tried separately; didn’t you?
“MR. RUSSELL: Yes, sir.
“THE COURT: I overrule the motion. (R. 2-7)

Our case law is replete with authority for the proposition that the grant or denial of a continuance is a matter addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be disturbed on appeal unless a manifest abuse positively appears. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Williamson v. State, Ala.Cr.App., 370 So.2d 1054 (1978), affirmed, Ala., 370 So.2d 1066 (1979); West’s Alabama Digest, Criminal Law, Key Numbers 586 and 1151. Given the length of time available for preparation, the apparent availability of necessary witnesses, the relative simplicity of this case, and the fact that counsel for appellant conducted a vigorous defense by cross-examining the State’s witnesses and calling witnesses for appellant, we find no abuse of discretion in denying a continuance. We fail to see how a continuance of one day would have benefited appellant anyway, especially in light of his counsel’s indications that he was ready to try the case.

We have carefully reviewed the record and find no error requiring a reversal; the judgment below is therefore

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    In re FLORIDA RULES OF JUVENILE PROCEDURE.
    No. 57735.
    Supreme Court of Florida.
    June 9, 1980.
    L. David Shear, President of The Florida Bar, Tampa, and Dorothy H. Pate, Chairman of the Juvenile Procedure Rules Committee, Jacksonville, for petitioner.
   PER CURIAM.

To make our rule consistent with section 39.05(6), Florida Statutes (1979), Florida Rule of Juvenile Procedure 8.110(e) is hereby amended, effective this date, to read as follows:

8.110(e) On motion by or in behalf of a child a petition alleging delinquency or ungovernability subsequent to a prior adjudication of ungovernability shall be dismissed with prejudice if it was not filed within forty-five (45) days from the date the complaint was referred to the intake office. However, the court may grant an extension of time not to exceed an additional fifteen (15) days upon such motion by the state attorney when, in the opinion of the court, such additional time is justified because of exceptional circumstances.

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


text:
    William Lee THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 55697.
    Supreme Court of Florida.
    July 3, 1980.
    Rehearing Denied Nov. 6, 1980.

      Harold Solomon of Solomon & Mendelow, Miami Springs, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz and Calvin L. Fox, Asst. Attys. Gen., Miami, for appellee.
   PER CURIAM.

This is an appeal from a conviction for first-degree murder, kidnapping, and involuntary sexual battery. The trial judge imposed the death sentence in concurrence with the recommendation of the sentencing jury. We have jurisdiction.

This case was previously before the Court in Thompson v. State, 351 So.2d 701 (Fla.1977), which held that appellant was entitled to withdraw his guilty plea because an honest misunderstanding contaminated its voluntariness. Upon remand, appellant entered his second plea of guilty to each offense. No contention is made in this appeal that this plea was defective in any manner. For the reasons expressed, we affirm the imposition of the death penalty for this torture murder.

The facts are as follows: The appellant Thompson, Rocco Surace, Barbara Savage, and the victim Sally Ivester were staying in a motel room. The girls were instructed to contact their homes to obtain money. The victim received only $25 after telling the others that she thought she could get $200 or $300. Both men became furious. Surace ordered the victim into the bedroom, where he took off his chain belt and began hitting her in the face. Surace then forced her to undress, after which the appellant Thompson began to strike her with the chain. Both men continued to beat and torture the victim. They rammed a chair leg into the victim’s vagina, tearing the inner wall and causing internal bleeding. They repeated the process with a night stick. The victim was tortured with lit cigarettes and lighters, and was forced to eat her sanitary napkin and lick spilt beer off the floor. This was followed by further severe beatings with the chain, club, and chair leg. The beatings were interrupted only when the victim was taken to a phone booth, where she was instructed to call her mother and request additional funds. After the call, the men resumed battering the victim in the motel room. The victim died as a result of internal bleeding and multiple injuries. The murder had been witnessed by Barbara Savage, who apparently feared equivalent treatment had she tried to leave the motel room.

The appellant was arrested on April 1, 1976, and was examined by two psychiatrists in April and by two other psychiatrists in June of 1976. All four psychiatrists concluded that the appellant knew right from wrong at the time of the offense and had the capacity to aid counsel.

On June 15, 1976, the appellant entered a guilty plea, and the trial court imposed the death sentence. This Court remanded to allow the defendant to withdraw his plea of guilty. Upon remand, new counsel was appointed for the appellant. As part of his representation, counsel filed a motion for a psychiatric evaluation on the grounds that he had:

reason to believe that the defendant may be suffering a mental deficiency or disease which would render him incapable of assisting in his defense, and may have precluded the defendant from knowing right from wrong at the time of the alleged criminal acts set forth in the indictment.

The state opposed the motion, asserting that there had been sufficient prior psychiatric evaluation. The trial court denied the motion. On September 18, 1978, the defendant entered his second guilty plea, at which time the trial judge inquired at length concerning defendant’s competency to make the plea. The trial court accepted the plea and convened an advisory jury over the objection of the appellant, who had moved to waive jury involvement in the sentencing portion of this proceeding. The jury recommended the imposition of the death sentence. Counsel for the appellant thereupon requested another psychiatric evaluation and a presentence investigation report, both of which were denied by the trial judge. The trial court sentenced Thompson to death for the murder conviction and sentenced him to terms of life imprisonment for both the kidnapping and the involuntary sexual battery convictions. The eodefendant, Roco Surace, had initially entered a plea of guilty and was sentenced to death. Upon reversal by this Court, Surace was subsequently found guilty of second-degree murder in a retrial in which the appellant Thompson testified and took credit for the entire incident.

The appellant does not dispute the validity of the guilty plea and conviction, but he advances six grounds upon which the death sentence should be reversed. We find these grounds to be without merit.

First, appellant contends that the trial court deprived the defendant of due process by denying the request for additional psychiatric testing. We find the trial court did not abuse its discretion in declining to order further psychiatric evaluations in view of the four previous reports and the failure of appellant’s counsel to identify any particular circumstance that had caused the mental condition of the appellant to change since those prior examinations and the plea of guilty. We find that the trial court properly inquired into the competency of the appellant at the time he entered his second guilty plea in this cause.

The appellant contends that it was error for the trial court to deny the request for a presentence investigation. This Court has previously addressed this issue, holding that the trial court may deny a presentence investigation in capital cases. Hargrave v. State, 366 So.2d 1 (Fla.1978); Thompson v. State, 328 So.2d 1 (Fla.1976).

In his third point, the appellant asserts that the trial court erred by convening an advisory jury over the objection of the appellant, and by excluding for cause prospective jurors who absolutely opposed the imposition of the death penalty. This Court has previously held that each of those contentions is without merit. Witt v. State, 342 So.2d 497 (Fla.1977), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); State v. Carr, 336 So.2d 358 (Fla.1976).

The fourth point of appeal concerns four photographs of the victim which were admitted into evidence. Appellant argues that these photographs were grotesque and prejudicial and should not have been admitted into evidence because appellant had conceded the heinous nature of the crime, thus the pictures could serve only to inflame the jury. The admission of the photographs was proper. The trial court was careful to admit only those photographs depicting the victim at the crime scene; photos of the victim taken at the medical examiner’s office were excluded. We find these photographs were properly admitted to establish the extent of the heinous nature of this torture murder.

In his fifth contention, the appellant argues that the trial court ignored certain evidence of domination by the accomplice Surace. We believe the argument is without merit. The record reflects that at the time of the initial beating of the victim, the appellant left the bedroom and told the witness, Barbara Savage, that he (appellant) was so angry he “felt like killing Sally [the victim].” We also agree that the trial judge was not required to ignore the fact that this appellant testified at the Surace trial that the appellant himself was responsible for the entire incident. We find the trial judge did not “ignore” the evidence of Surace’s domination of appellant. He simply declined to find the record justified such a conclusion, and we agree.

Appellant’s final point, asserting that our death penalty statute constitutes cruel and unusual punishment, has been consistently rejected by this Court; the statute’s constitutionality previously has been upheld against appellant’s “intolerable discretion” argument. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Hargrave v. State, 366 So.2d 1 (Fla.1978).

In imposing the death sentence, the trial court found as mitigating circumstances that appellant had no significant history of prior criminal activities and that he was twenty-six years old at the time of sentencing. These were found insufficient to outweigh the aggravating circumstances that this capital felony was committed while the defendant was engaged in kidnapping and involuntary sexual battery, and that this was an atrocious and cruel act. We place special emphasis on the latter aggravating factor. The heinous nature of this crime is fully reflected in the sentencing order of the trial judge:

The facts in this case show this to be an extremely violent and heinous crime. The victim was beaten with a chain and a billy club; struck with a chair leg, and burned with a cigarette lighter in the area of her vagina. The chair leg was forced into the vagina of the victim, and was then twisted inside and struck with the hand to force it far up into the vaginal area. The billy club was forced into the vagina of the victim that it ripped the entire portion of the vagina tearing the wall, causing such extreme pain, that the shock contributed in great part to the death of the victim, as stated by the medical examiner in his testimony. The beating of the victim resulted in 80% of the victim’s body being covered with deep bruises, cuts and perforations, in addition to some of her front teeth being broken by blows from the defendant. In addition, the defendant burned the victim with lit cigarettes on various parts of her body.

For the reasons expressed, we affirm the conviction of William Lee Thompson for the murder, involuntary sexual battery, and kidnapping of Sally Ivester, and agree that the death penalty is clearly an appropriate punishment in this cause.

It is so ordered.

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

McDONALD, J., dissents.

ORDER ON DENIAL OF REHEARING

We deny rehearing, but clarify the opinion to reflect clearly that (a) the previous guilty pleas of the appellant and his code-fendant Surace were reversed by this Court; (b) upon retrial, Surace was found guilty of second-degree murder; and (c) the appellant Thompson testified at Surace’s trial and took credit for the entire incident.

It is so ordered.

      . Art. V, § 3(b)(1), Fla.Const.

      . Surace v. State, 351 So.2d 702 (Fla.1977).

      . Surace v. State, 378 So.2d 895 (Fla. 3d DCA 1980).


author: SUNDBERG, Chief Justice.

text:
    Richard S. DENMARK et al., Petitioners, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 56373.
    Supreme Court of Florida.
    July 10, 1980.
    Rehearing Denied Sept. 17, 1980.
    Kelly, Black, Black, Wright & Earle, P.A., Miami, Brown, Paxton & Williams, Fort Pierce, and Sam Daniels of Daniels & Hicks, Miami, for petitioners.
    Alan E. DeSerio, Oval B. Boone and H. Reynolds Sampson, Tallahassee, for respondent.
   SUNDBERG, Chief Justice.

We granted certiorari in this cause to review the January 13, 1979 order of the District Court of Appeal, Fourth District, denying appellate attorneys’ fees to petitioners/condemnees. We now disapprove the above order.

After a jury verdict of $48,000 in this eminent domain proceeding, the trial judge entered a judgment notwithstanding the verdict of $229,850 in severance damages to petitioners. Respondent/condemnor appealed the award to the District Court of Appeal, Fourth District, which reversed. State Dept. of Transportation v. Denmark, 366 So.2d 476 (Fla. 4th D.C.A. 1979). In a separate order, the district court denied petitioners’ motion for appellate attorneys’ fees.

Section 73.131(2), Florida Statutes (1979), provides:

The petitioner shall pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney’s fee to be assessed by that court, except upon an appeal taken by a defendant in which the judgment of the trial court shall be affirmed.

Faced with the identical statutory provision and similar factual circumstances, we held in State Road Dept. v. Levato, 199 So.2d 714 (Fla.1967), that the condemnee was entitled to attorneys’ fees even though the condemnor prevailed on appeal. Accord, State Road Dept. of Florida v. Hancock, 250 So.2d 307 (Fla. 2d D.C.A. 1971). Petitioners are thus entitled to an attorneys’ fee for appellate services in this case.

Accordingly, the order of the District Court of Appeal, Fourth District, denying attorneys’ fees is quashed. The cause is remanded to that court for proceedings not inconsistent with this opinion.

It is so ordered.

. ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const. (1972).


text:
    In re FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. 58989.
    Supreme Court of Florida.
    July 17, 1980.
    L. David Shear, President, and Leonard H. Gilbert, President-elect, Tampa, for The Florida Bar.
    Benjamin M. Tench, Chairman, Gaines-ville, and Bill Wagner, Tampa, for the Court Rules Steering Committee.
   PER CURIAM.

The following amendments to the Rules of Judicial Administration shall take effect at 12:01 a. m., January 1, 1981.

These amendments shall supersede our opinion in In Re Rules of Court: Procedure for Consideration of Proposals Concerning Practice and Procedure [In re The Florida Bar] 276 So.2d 467 (Fla.1972), and all conflicting rules and statutes.

Rule 2.130 is amended in its entirety to read as follows:

Rule 2.130: Procedure for Amending Rules
(a) Emergency Amendments. The Supreme Court, with or without notice, may change court rules at any time if an emergency exists that does not permit reference to the appropriate committee of The Florida Bar for recommendations. If a change is made without reference to the committee, the change may become effective immediately or at a future time. In either event, the Court shall fix a date for further consideration of the change. Any person may file comments concerning the change, seeking its abrogation or a delay in the effective date. The Court may allow oral argument in support of such comments by The Florida Bar, by its sections and committees, and by other bar associations.
(b) Amendments Generally. The following procedure shall be followed for consideration of rule amendments generally other than those adopted under subdivisions (a), (e), and (f).
(1) Proposals for court rules, amendments to them or abrogation of them may be made by any person.
(2) Proposals shall be submitted to the clerk of the Supreme Court in writing and shall include a general description of the proposed rule change or a specified proposed change in content. The clerk of the Supreme Court shall refer proposals to the appropriate committee under subdivision (b)(3).
(3) The Florida Bar shall appoint the following committees to consider rule proposals: Civil Procedure Rules Committee, Criminal Procedure Rules Committee, Summary Procedure Rules Committee, Traffic Court Rules Committee, Appellate Procedure Rules Committee, Juvenile Procedure Rules Committee, Rules of Evidence Committee, Judicial Administration Rules Committee, Probate and Guardianship Rules Committee, and Workers’ Compensation Rules Committee.
(4) Each committee shall be composed of attorneys and judges with extensive experience and training in the area of practice of the committee calling for regular, frequent use of the rules. The members of the committee shall serve for three years staggered terms. The President of The Florida Bar shall appoint the chairman and vice chairman of each committee.
(5) The committees shall consider and vote on each proposal. The committees may originate proposals and are charged with the duty of regular review and reevaluation of the rules to advance orderly and inexpensive procedures in the administration of justice. The committees may accept or reject proposed amendments or may amend proposals. The committees shall keep minutes of their activities, which minutes shall reflect the action taken on each proposal. Copies of the minutes shall be furnished to the clerk of the Supreme Court, to the Board of Governors of The Florida Bar, to the Supreme Court of Florida, and to the proponent of any proposal considered at the meeting.
(c)Schedule for Rule Proposals.
(1) Every four years commencing on or before September 1,1983, each committee shall report all proposed rule changes to the Board of Governors of The Florida Bar with the committee’s final numerical voting record on each proposal.
(2) On or before March 1, 1984, and every four years thereafter, the Board of Governors shall consider the proposals and shall vote on each proposal to recommend acceptance, rejection, or amendment.
(3) On or before April 1, 1984, and every four years thereafter, each committee shall file a report of its proposed rule changes with the Supreme Court. Each committee may amend its recommendations to coincide with the recommendations of the Board of Governors of The Florida Bar or may decline to do so or may amend its recommendations in another manner. Any such amendments shall also be reported to the Supreme Court. The report shall include the final numerical voting record of the proposals in the committee and a report of the action and voting record in the Board of Governors of The Florida Bar.
(4) The Supreme Court shall establish a date during the month of May or June for oral argument on the proposals. Notice of the hearing on the proposals and a copy of the proposals shall be furnished to the affected committee chairman and vice chairman, the Executive Director of The Florida Bar, and any person who has asked in writing filed with the clerk of the Supreme Court for a copy of the notice. The recommendations or a resume of them shall be published in the Florida Bar Journal or Florida Bar News before the hearing. Notice of the hearing shall also be published in the Florida Bar Journal or Florida Bar News. Before the date of oral argument, any person may file comments concerning the proposals with the clerk of the Supreme Court. The Supreme Court may hear oral argument from any person and shall hear oral argument on behalf of The Florida Bar, any bar association, and the affected committee.
(5)Orders of the Supreme Court on said proposals should be adopted in sufficient time to take effect on January 1 of the following year. The Supreme Court may permit Motions for Rehearing to be filed on behalf of any person, The Florida Bar, any bar association, and the affected committee.
(d) Rejected Proposals. If a committee rejects a proposal, the proponent may submit the proposed rule to the Board of Governors and shall notify the chairman and vice chairman of the affected committee of the submission of the proposed rule to the Board of Governors. Minority reports of committees are allowed and may be submitted to both the Board of Governors and the Supreme Court.
(e) Emergency Recommendation by Committee. If, in the opinion of a committee, a proposal is of an emergency nature, and the Board of Governors concurs, proposals may be made at any time to the Supreme Court. If the Court agrees that an emergency exists, the Court may set a time for oral argument and consideration of the proposal.
(f) Emergency Request by Court. The Supreme Court may direct special consideration of a proposal at times other than those specified in this rule and may require a committee to report its recommendation with the recommendations of the Board of Governors of The Florida Bar. The Supreme Court may set oral argument on the report at any time.
(g) Local Rules Proposed by Trial Courts: The foregoing procedure shall not apply to local rules proposed by a majority of circuit and county judges in the circuit. The Chief Justice of the Supreme Court may appoint a local Rule Advisory Committee to consider and make recommendations to the Court concerning local rules and administrative orders submitted pursuant to Judicial Administration Rule 2.050(e).

Committee Note

Rule 2.130 is entirely rewritten to codify the procedures for changes to all Florida rules of procedure as set forth by this Court in In re Rules of Court: Procedure for Consideration of Proposals Concerning Practice and Procedure [In re The Florida Bar] 276 So.2d 467 (Fla.1972), and to update those procedures based on current practice. The Supreme Court Rules Advisory Committee has been abolished, and the Local Rules Advisory Committee has been established.

Rule 2.050(e)(1)(B) and (1)(C) are amended to read as follows:

(1)(B) Not later than February 15 of each year, the clerk of the Supreme Court shall submit all local court rule proposals to the Supreme Court Local Rules Advisory Committee created by Rule 2.130. At the same time, the clerk of the Supreme Court shall send copies of the proposed rules to the appropriate committees of The Florida Bar. The Florida Bar committees, any interested local bar associations, and any other interested person shall submit any comments or responses that they wish to make to the Supreme Court Local Rules Advisory Committee on or before March 15 of the year.
(1)(C) The Supreme Court Local Rules Advisory Committee shall meet on or before April 15 to consider the proposals and any comments submitted by interested parties. The committee shall transmit its recommendations to the Supreme Court concerning each proposal, with the reasons for its recommendations, within fifteen days after its meeting.

Rule 2.050(e)(2) is amended to read as follows:

(2) If any judge or member of The Florida Bar believes that an administrative order promulgated under subsection (b)(2) of this rule is a court rule or a local rule as defined in Rule 2.020, rather than an administrative order, he may apply to the Supreme Court Local Rules Advisory Committee for a decision on the question. The decisions of the committee concerning the determination of the question shall be reported to the Supreme Court, and the Court shall follow the procedure set forth in subsection (D) above in considering the recommendation of the committee.

All other portions of Rule 2.050 remain unchanged.

It is so ordered.

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


text:
    NORTH BROWARD HOSPITAL DISTRICT d/b/a Broward General Medical Center, Appellants, v. Clinton HINCHMAN and Muriel Hinchman, Appellees.
    No. 58760.
    Supreme Court of Florida.
    Oct. 9, 1980.
    Ellen Mills Gibbs and William Zei, Fort Lauderdale, for appellants.
    James W. Knight, Jr. of Carry & Knight, Fort Lauderdale, for appellees.
   PER CURIAM.

In view of our decision in Simmons v. Faust, 358 So.2d 1358 (Fla.1978), the order of Judge Seay holding the medical mediation act unconstitutional is not a trial court order appealable to this Court. This case is therefore transferred to the District Court of Appeal, Fourth District, with directions to remand to the judicial referee for termination of medical mediation jurisdiction in accordance with Aldana v. Holub, 381 So.2d 231 (Fla.1980).

It is so ordered.

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


text:
    Michael Scott IRVING, Appellant, v. STATE of Florida, Appellee.
    No. 58702.
    Supreme Court of Florida.
    Oct. 9, 1980.
    No appearance for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Cain, 381 So.2d 1361 (Fla.1980).

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


text:
    Michael Scott IRVING, Appellant, v. STATE of Florida, Appellee.
    No. 58869.
    Supreme Court of Florida.
    Oct. 9, 1980.
    No appearance, for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Cain, 381 So.2d 1361 (Fla.1980); State v. Miller, 313 So.2d 656 (Fla.1975).

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


text:
    Kevin Jay DUNMAN, Appellant, v. STATE of Florida, Appellee.
    No. 58815.
    Supreme Court of Florida.
    Oct. 9, 1980.
    No appearance for appellant.
    Jim Smith, Atty. Gen., and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Appellant here challenges the constitutionality of section 39.04, Florida Statutes (1979). This Court has recently upheld the statute’s validity, State v. Cain, 381 So.2d 1361 (Fla.1980), and, therefore, we find this issue to be frivolous. This case is transferred to the District Court of Appeal, Fifth District, for resolution of the remaining issues on appeal.

It is so ordered.

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


text:
    Demetrice SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 58821.
    Supreme Court of Florida.
    Oct. 9, 1980.
    Douglas M. Midgley, Public Defender, and Deborah Studybaker, Asst. Public Defender, Naples, for appellant.
    Jim Smith, Atty. Gen., and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Cain, 381 So.2d 1361 (Fla.1980).

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


text:
    THE FLORIDA BAR, Complainant, v. James B. OWENS, Respondent.
    Nos. 59309, 58860 and 59081.
    Supreme Court of Florida.
    Oct. 9, 1980.
    Scott K. Tozian, Branch Staff Counsel, and Michael C. Whittington, Asst. Staff Counsel, The Florida Bar, Tampa, Fla., for complainant.
    James B. Owens, in pro. per., respondent.
   PER CURIAM.

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

The Petition for Leave to Resign sets out the following terms and conditions (Respondent referred to as “petitioner”):

1. Disciplinary history: Petitioner was privately reprimanded in 1973.
2. Pending disciplinary actions against the petitioner are as follows:
a. The Florida Bar v. James B. Owens, Supreme Court case no. 58,860, presently pending in the Supreme Court on a Petition for Review by The Florida Bar. This involves allegations of fraudulent conduct in the sale of real property. The referee has recommended a six month suspension.
b. The Florida Bar v. James B. Owens, Supreme Court case no. 59,081, is now pending before a referee. There are three counts. Count one alleges conversion of funds belonging to an estate of which the petitioner was personal representative. Count two alleges conversion of funds of an estate for which the petitioner was attorney. Count three alleges conversion of funds from an estate for which the petitioner was personal representative and attorney.
c. A grievance committee has found probable cause and a Complaint is being prepared on additional seven allegation [sic] of misconduct. The first count will be Florida Bar case no. 06C80H50, alleging that petitioner received $4,429.37 in trust from his client, Rudolph Bruni, and improperly converted the funds to his own use. Count two will be Florida Bar case no. 06C80H58, alleging that petitioner converted to his own use approximately $31,000.00 from the estate of John W. Bohan while he was personal representative of that estate. Count three will be Florida Bar case no. 06C80H60, alleging that the petitioner converted approximately $20,000.00 to his own use from the estate of Fred T. Passler while personal representative for that estate. Count four will be Florida Bar case no. 06C80H64, alleging that the petitioner neglected a legal matter entrusted to him by a client, Mrs. Geraldine Johnson. Count five will be Florida Bar case no. 06C80H74, alleging that the petitioner converted in excess of $1,000.00 of money belonging to his client, Joseph D’Amaro, which he was to hold a trust. Count six will be Florida Bar case no. 06C80H84, alleging that the petitioner converted to his own use $500.00 from the estate of Willa S. Askren for which he was personal representative. The seventh count will allege that the respondent was paid $150.00 to perform legal services for the estate of Kader M. Pearce and, thereafter, failed to perform any services or refund the money.
3. Petitioner hereby waives confidentiality of this proceeding and all pending cases, pursuant to Fla. Bar Integr. Rule, art. XI, Rule 11.12(l)(a).
4. Petitioner agrees to cooperate fully with any investigations made in connection with the Client’s Security Funds of The Florida Bar.
5. Petitioner voluntarily submits this Petition to Resign Permanently, being aware of The Florida Bar, re: Leon H. Brush, 358 So.2d 1355 (Fla.1978), and understands that he will not be allowed to petition for reinstatement at a future date.

The Florida Bar having filed its response supporting the Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.-08(3) are fully satisfied, the Petition for Leave to Resign Permanently is hereby approved.

Pursuant to Article XI, Rule 11.08(5) of the Integration Rule of The Florida Bar, Case Nos. 58,860 and 59,081 are hereby dismissed.

It is so ordered.

BOYD, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Thomas B. WALKER, Respondent.
    No. 59374.
    Supreme Court of Florida.
    Oct. 9, 1980.
    John B. Root, Jr., Bar Counsel and Asst. Staff Counsel, Orlando and Stanley A. Spring, Staff Counsel, Tallahassee, for complainant.
    Roy C. Summerlin, Winter Haven, for respondent.
   PER CURIAM.

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

The Florida Bar submits the following in its response supporting the Petition for Leave to Resign:

1.Pursuant to findings of probable cause, a formal complaint containing two Counts, was filed against the respondent/petitioner on September 26, 1979. That complaint charged violations of Disciplinary Rules 6-101(A)(l); 6-101(A)(2); 6-101(A)(3); and 7-101(A)(2) as to Count I, and violation of Disciplinary Rules 6-101(A)(1); 6-101(A)(2); 6-101(A)(3); and 7-101(A)(2) as to Count II.
2. Subsequent to the filing of the complaint, respondent submitted the Petition For Leave to Resign which was dated June 11, 1980, which was filed in this court on June 16, 1980.
3. The allegations against the respondent in this case can be summarized as follows:
COUNT I
Mr. Carl Lundahl died on November 14, 1965, and shortly thereafter respondent was appointed as executor of the estate. The inventory, dated June 17, 1966, reflected estate assets of more than $195,-000, a substantial amount of which was invested in mortgages and land contracts. In November, 1967, respondent filed a Petition for Allowance of Attorney and Executor Fees in the total amount of $20,000. A partial final report was not filed by respondent until nearly eight years later, on March 3, 1975. This report was then objected to by attorneys for two of the beneficiaries on the grounds of incomplete and inaccurate information and lack of substantiating data. On March 8, 1976, (more than a year later) the court concluded that respondent had failed to demonstrate to the court why the Lundahl estate had not been closed, that respondent had failed to answer the objections to the partial final report, that respondent had taken no further affirmative action with respect to the estate, and that the respondent’s utter lack of preparation for the hearing on March 3, 1976 was “shocking to the court.” The respondent was then ordered to obtain prior approval from the court before making any disbursements of any kind from the estate and to file a complete accounting of his administration of the estate no later than April 2,1976. On April 26, 1976, the beneficiaries, through their attorneys, filed objections to the final report citing numerous instances of unaccounted for funds, improper expenditures without proper proof of claims, improper payments not authorized by the Will, lack of proper verification of certain costs, unreasonable and unnecessary amounts expended on respondent’s trip to Sweden to locate heirs, and lack of verification of distribution as claims by respondent. On May 24, 1976, the court sustained some of the objections of the heirs. On May 25, 1976, respondent filed his formal resignation as executor and attorney for the estate of Carl Lundahl.
COUNT II
Robert D. Dailey died intestate in 1949, leaving his widow and four children as survivors. Mr. Dailey owned a substantial amount of real estate, title to which became confused subsequent to his death due to deaths of heirs and conflicting claims of his survivors. In 1966, one of his surviving children, Freddie C. Dailey, died intestate, before the estate of Robert D. Dailey was fully distributed. Freddie C. Dailey’s son, Freddie C. Dailey, Jr., was appointed administrator of his father’s estate in 1966 and respondent became the attorney for the Freddie C. Dailey estate. In 1967, the administrator of the estate of Freddie C. Dailey filed an inventory reflecting assets of more than $47,000.
At some time prior to September 10, 1969, two other surviving children of Robert D. Dailey also died. Their deaths created further estate problems affecting the estate of Freddie C. Dailey, and respondent also became the attorney or trustee for their estates. Subsequently, other survivors of Robert D. Dailey also died. In 1971 the court approved the accounting and ordered that the estates of Freddie C. Dailey, James Robert Dai-ley, Annie G. Dailey and Robert D. Dailey be closed within a reasonable time. However, in 1976, nearly five years later, respondent petitioned the court to keep open the estate of Freddie C. Dailey until such time as certain funds held in escrow could be disbursed. In December, 1976, the court found that the financial affairs of the various Dailey estates had become “incredibly tangled” and that there had been extensive intermingling of funds between the various estates and trusts; that respondent had failed to file proper accountings and that respondent should be removed from his position. The estate of Freddie C. Dailey finally was closed in 1978.
4. There are no other complaints pending against the respondent. Pursuant to Integration Rule 11.08(5), this case will be dismissed if this honorable court grants respondent’s Petition for Leave to Resign.
5. At its July, 1980 meeting, the Board of Governors voted to support the Petition For Resignation.
6. The complainant submits that a judgment granting leave to resign will fulfill the criteria for such resignations pursuant to Florida Bar Integration Rule, Art. XI, Rule 11.08(3). The public interest will not be adversely affected by granting the Petition for Leave to Resign. Under the circumstances of this case, such a resignation will not adversely affect the purity of the courts nor hinder the administration of justice. On the contrary, the complainant submits that granting the petition will have the opposite effect. The matters contained in the formal complaint and in the Petition for Leave to Resign make it perfectly clear that granting this petition to resign will be in the best interests of all concerned.

The Court having reviewed the Petition for Leave to Resign and Response to Petition for Leave to Resign, and having determined that the requirements of Rule 11.-08(3) are fully satisfied, the Petition for Leave to Resign is hereby approved and costs in the amount of $248.62 are taxed against Respondent, Thomas B. Walker. Payment of such costs must be made prior to the institution of any reinstatement proceeding brought pursuant to Florida Bar Integration Rule, Article XI, Rule 11.11.

SUNDBERG, C. J„ and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge.

text:
    Elton H. SCHWARZ, Relator, v. Honorable Tom WADDELL, Jr., Judge of the Circuit Court, Eighteenth Judicial Circuit of Florida, Acting as Judge of the Circuit Court, Nineteenth Judicial Circuit in and for Martin County, Florida, by Temporary Assignment, Respondent.
    No. 791855.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied Oct. 22, 1980.
    Elton H. Schwarz, pro se.
    Michael A. Nugent of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

Relator seeks a Writ of Prohibition against the trial court from exercising its jurisdiction under a Writ of Garnishment. He urges four points, of which we find the first to be dispositive, rendering unnecessary any discussion of the remainder. Because we agree that relator’s first point has merit, the Writ shall issue.

On September 21,1978, respondent found relator to be in arrears for child support in the sum of $20,500.00, and entered judgment against him for that amount. On January 26, 1979 relator’s minor child reached her majority.

On May 7, 1979 relator’s former wife filed a motion for reissuance of garnishment to collect child support for the period of September 21, 1978 to January 26, 1979, and obtained from respondent, on June 28, 1979, an order for continuing writ of garnishment for child support directed to the Comptroller of the State of Florida, garnishing $1,000.00 per month of relator’s salary. The order specifically excluded all amounts due for child support prior to September 21, 1978, so none of the previously adjudicated sum of $20,500.00 was involved. On July 10, 1979 the clerk issued a continuing Writ of Garnishment limiting the sum to be withheld to $1,000.00 of relator’s earnings each month, subject to further order of the court.

Relator’s petition recites that he learned of the foregoing motion, order and writ on July 19, 1979, when one-half of his disposable income was garnished from his salary. The following day, relator filed with the clerk of the circuit court an affidavit of exemption, which the clerk served immediately by mail upon counsel for relator’s former wife. Relator’s affidavit recited that the money being sought by the writ was due him for his personal labor and services; that he was the head of a family residing in Florida; „ and that he made the affidavit pursuant to “Section 222.12, Florida Statutes, and 15 U.S.C.S. § 1672 and § 1673.”

On July 24, 1979 relator served his traverse of motion for reissuance of writ of garnishment, motion to vacate order for continuing writ of garnishment for child support and motion to quash writ of garnishment. On July 30, 1979 garnishee filed its answer to continuing writ of garnishment and motion for dissolution of garnishment. On August 8, 1979 relator’s former wife filed an answer to affirmative defense, denying relator’s allegations in ¶ 8a of his traverse wherein he alleged only one child of the parties had been residing with his former wife. On August 13, 1979 relator filed his petition for writ of prohibition in this court; and we find that he has standing.

Relator argues that all proceedings under the continuous writ of garnishment terminated by operation of law upon the failure of relator’s former wife to file any affidavit, timely or otherwise, denying the contents of affiant’s affidavit, as required by Section 222.12, Florida Statutes (1979).

The statute provides:

Proceedings for exemption.

Whenever any money or other thing due for labor or services as aforesaid is attached by such process, the person to whom the same is due and owing may make oath before the officer who issued the process that the money attached is due for the personal labor and services of such person, and he is the head of a family residing in said state. When such an affidavit is made, notice of same shall be forthwith given to the party, or his attorney, who sued out the process, and if the facts set forth in such affidavit are not denied under oath within 2 days after the service of said notice, the process shall be returned, and all proceedings under the same shall cease. If the facts stated in the affidavit are denied by the party who sued out the process within the time above set forth and under oath, then the matter shall be tried by the court from which the writ or process issued, in like manner as claims to property levied upon by writ of execution are tried, and the money or thing attached shall remain subject to the process until released by the judgment of the court which shall try the issue.

The exemption to which the above section refers is contained in Section 222.11, Florida Statutes (1979):

No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.

Relator relies upon the decision in Miami Herald Publishing Co. v. Payne, 358 So.2d 541 (Fla.1978). In that case, the debtor husband filed an affidavit that he was a “resident head of household.” No controverting affidavit was ever filed. Instead, the former wife filed an unsworn motion, challenging the former husband’s exemption on the ground that the amounts due fell within the statutory exception for support orders recited in Section 61.12, Florida Statutes (1975).

That statute provided as follows and is identical to Section 61.12(1), Florida Statutes (1979):

Attachment or garnishment of amounts due for alimony.
So much as the court orders of the money or other things due to any person or public officer, state, or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support; when the money or other thing sought to be attached or garnisheed is the salary of a public officer, state or county, the writ of attachment or garnishment shall be served on the public officer whose duty it is to pay the salary, who shall obey the writ as provided by law in other cases. It is the duty of the officer to notify the public officer whose duty it is to audit or issue a warrant for the salary sought to be attached immediately upon service of the writ. A warrant for as much of the salary as is ordered held under said writ shall not issue except pursuant to court order unless the writ is dissolved. No more of the salary shall be retained by virtue of the writ than is provided for in the order.

The Supreme Court rejected the same argument made here by respondent that Section 222.12 did not apply to garnishments made pursuant to Section 61.12 and held:

The Third District Court of Appeal has previously held that Section 222.12 must be strictly construed in favor of the debt- or. Elvine v. Public Finance Co., 196 So.2d 25, 26 (Fla. 3rd DCA 1967).
The exemption is for the benefit of the debtor, and its benefit may only be accorded to him by the statutory termination of the proceedings.
We agree, from which it follows that all proceedings under the writ of garnishment terminated by operation of law upon the expiration of the time for filing a sworn denial to. John’s affidavit. Upon that occurrence the trial court had jurisdiction only to return the writ of garnishment to Judith’s attorney; it was without authority to continue the proceeding and enter a judgment against the Miami Herald.
Since the petition for certiorari in this case was filed both by the Miami Herald and by John Payne, the question arises whether John benefits from the termination of the garnishment proceeding against the Miami Herald. We think that he does. It seems clear that a judicial proceeding begun on a writ of garnishment retains no vitality for any purpose when the initial process in the suit is returned and the proceeding by law has been mandated to “cease.” The trial court surely lacks the authority at that juncture to convert the original proceeding against the garnishee into an equity action against the garnished debtor. See Williams v. T. R. Sweat & Co., 103 Fla.461, 137 So. 698 (1931).
It may be that Judith’s attorney will be required to seek successive writs of garnishment against John’s creditors, or that he will need to inaugurate a different form of litigation to enforce his judgment. Nonetheless, it is clear on this record that the proceeding he brought against the Miami Herald to garnish John’s wages was terminated by operation of law when he failed to comply with the statutory directive for defeating a debtor’s garnishment exemption. Miami Herald Publishing Co. v. Payne, supra at 541.

The decision of the Supreme Court is binding upon this court, notwithstanding that the final judgment of dissolution entered in 1973, providing for child support, is otherwise subject to enforcement by garnishment. Clemons v. Morris, 350 So.2d 519 (Fla. 4th DCA 1977). Further, the fact that the Supreme Court’s decision involved attorneys’ fees, not child support, we believe not to be distinguishable. Attorneys’ fees and child support are treated equally under Section 61.12 in that the statute concerns itself with orders involving alimony, suit money and child support. The term “suit money” includes attorneys’ fees. Scanlon v. Scanlon, 154 So.2d 899 (Fla. 1st DCA 1963).

In accordance with the rule set forth in Payne, supra, all proceedings under the writ of garnishment issued pursuant to the order of June 28, 1979, terminated by operation of law upon the expiration of the time for filing a sworn denial of petitioner’s affidavit of exemption. Thereafter, the trial court had jurisdiction only to return the writ of garnishment to the attorney for Rose Marie Schwarz.

Accordingly, a writ of prohibition is issued and the respondent is prohibited from exercising any further continuing jurisdiction under its order of June 28, 1979, and the writ of garnishment issued pursuant thereto.

DOWNEY and ANSTEAD, JJ., concur.

ON PETITION FOR REHEARING

GLICKSTEIN, Judge.

Although we note that there is apparent conflict between our decision filed on June 4, 1980, and the decision of the First District Court of Appeal in Sokolsky v. Kuhn, 386 So.2d 806 (Fla. 1st DCA 1980), we adhere to our decision.

The petition for rehearing is denied.

DOWNEY and ANSTEAD, JJ., concur.


text:
    STATE of Florida, Appellant, v. Thomas RUSSO, Jr., Appellee.
    No. 80-1.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1980.
    Rehearing Denied Nov. 12, 1980.
    Michael J. Satz, State’s Atty., and Teresa Beazley Widmer, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals from an order granting a motion to suppress evidence. The evidence suppressed was obtained by virtue of a search warrant. The basis for suppression was the absence of language in the search warrant specifically requiring that the seized property be brought before the court as required by Subsection 933.07, Florida Statutes (1979). No prejudice to appellee is shown by the record nor is it anywhere alleged.

The rule in Florida is that substantial compliance with the statutory requirements applicable to search warrants is sufficient where no prejudice is shown. State v. Laiser, 322 So.2d 490 (Fla.1975); State v. Richardson, 331 So.2d 390 (Fla. 4th DCA 1976). We find substantial compliance here.

We therefore reverse the order granting the motion to suppress and remand for further proceedings.

REVERSED AND REMANDED.

DOWNEY, BERANEK and HERSEY, JJ., concur.


author: PER CURIAM. DAUKSCH, Chief Judge.

text:
    Robert Ray HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 79-964/T4-529.
    District Court of Appeal of Florida, Fifth District.
    July 23, 1980.
    On Rehearing Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, and Jorge Labarga, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER and SHARP, JJ., concur.

ON MOTION FOR REHEARING AND SUGGESTION FOR CERTIFICATION OF QUESTION

DAUKSCH, Chief Judge.

The motion for rehearing is granted and the suggestion that the principal question involved in the appeal be certified as one of great public importance is denied. The rehearing is granted so that this court can express its opinion that it is unnecessary for the state to prove that a short-barreled shotgun found in the possession of a defendant on trial for violation of section 790.221(1), Florida Statutes, was not an antique firearm. It is the holding of this court that the exception in that statute is a matter of defense rather than an essential element of proof. The defendant is obligated to show he falls within the exception allowing possession of an antique short-barreled shotgun rather than for the state to prove it was not an antique. State v. Kahler, 232 So.2d 166, 168 (Fla.1970); Hernandez v. State, 289 So.2d 16 (Fla. 3d DCA 1974); Benitez v. State, 172 So.2d 520 (Fla. 2d DCA 1965).

With this clarification we certify this case to be in conflict with Thompson v. State, 378 So.2d 859 (Fla. 1st DCA 1979).

MOTION FOR REHEARING GRANTED.

SUGGESTION FOR CERTIFICATION OF QUESTION DENIED.

ORFINGER and SHARP, JJ., concur.


text:
    CALDER RACE COURSE, INC., and Travelers Insurance Company, Appellants, v. HIALEAH RACE COURSE, INC., and Florida Insurance Guaranty Association, Inc., Appellees.
    No. 80-587.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 29, 1980.
    Joseph A. McGowan, Miami, for appellants.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Hialeah Race Course, Inc. lent a crane truck to Calder Race Course, Inc. While the truck was being used by Calder it struck a bridge owned by the State of Florida. Hialeah was insured by Consolidated Mutual Insurance Company, now represented by Florida Insurance Guaranty Association, Inc. (FIGA) and Calder was insured by Travelers Insurance Company. As a result of the damage to the bridge, the State filed suit against Hialeah, Calder, and their respective insurers. Thereupon, Hialeah and Consolidated filed a crossclaim against Calder and Travelers, seeking indemnity. Calder and Travelers crossclaimed, seeking recovery against Hialeah and its insurance carrier as the owner of the vehicle and the party primarily liable. Summary judgment was entered in favor of the State against Hialeah, Calder and their insurers. Hialeah and Consolidated defended against Calder’s crossclaim, urging that primary responsibility for the accident was Calder’s and its employee and that, between Calder and Hialeah, Calder should bear the loss. The trial court, on stipulated facts at the time the cause came on for hearing non-jury, entered a summary judgment for Hialeah. We affirm.

While it appears that both policies insured the vehicle and the driver, in fact they do not. The policy issued by Consolidated contains an escape clause, whereas Travelers’ policy contains an excess clause. In Florida, where a conflict exists between an escape clause and an excess clause, the escape clause will be enforced. Continental Cas. Co. v. Weeks, 74 So.2d 367 (Fla.1954); World Rent-A-Car v. Stauffer, 306 So.2d 131 (Fla.2d DCA 1974); American Bankers Insurance Company of Florida v. Leatherby Insurance Company, 350 So.2d 353 (Fla.2d DCA 1977); adopted Leatherby Insurance Company v. American Bankers Insurance Company of Florida, 371 So.2d 488 (Fla.1979).

Therefore, we affirm the summary judgment here under review.

Affirmed.

      .Consolidated’s policy of insurance defines an insured person as:
      ll(e)(ii) Any other person while operating with the permission of the named insured any such equipment registered in the name of the named insured and any person or organization legally responsible for such operation, but only if there is no other valid and collectible insurance available, either on a primary or excess basis, to such person or organization.
      Travelers’ policy of insurance states as follows:
      3. Definition of Insured-Each of the following is an Insured under this Section to the extent set forth below:
      (a) Under Coverages F and G.
      (3) any other person while using an owned automobile or a hired automobile with the permission of the Named Insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:
      (ii) An employee of the Named Insured or such lessee or borrower.

      . See footnote [1].

      . General Conditions.
      4(b) If the Insured has other insurance against a loss covered by this policy, the Travelers shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable liability of all valid and collectible insurance against such loss, provided the insurance under Section III with respect to any temporary substitute automobile, any hired automobile insured on a cost of hire basis or any non-owned automobile and the insurance under division two of Coverage H shall be excess insurance over any other valid and collectible insurance.


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Robert PRESLEY, Appellee.
    Nos. 77-1825/T4-7, 77-2398/T4-7A.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 20, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Michael Dubiner, Asst. Public Defender, West Palm Beach, for appellee.
   SHARP, Judge.

The State of Florida appeals the lower court’s dismissal of a second degree murder charge against the defendant, Robert Presley; and Presley appeals the court’s denial of his motion to suppress his confession. The two proceedings were consolidated on appeal. We affirm the denial of Presley’s motion to suppress but we reverse the dismissal of the second degree murder charge.

Presley’s accomplice or co-perpetrator of a robbery of the Howard Vernon Motel was shot and killed by a police officer8 while attempting to flee the scene of the crime. Presley was charged with second degree murder. After his arrest, Presley gave three incriminating statements to police officer Ferguson. He made the statements after Ferguson told him to tell the truth, and that if a murder charge “was not factually justified, that the court or the judge would do away with it.” Even if Presley was induced by Ferguson’s statements to make his confessions, no misrepresentations were made to him, and he was adequately warned as to his constitutional rights. There was sufficient evidence to support the trial court’s finding his statements were freely and voluntarily made. Paramore v. State, 229 So.2d 855 (Fla.1969).

Presley made earlier incriminating statements to police officers Aldrich and Grimm. He admitted being with the accomplice but denied any involvement in the crime. The trial court excluded these statements because it appeared Presley was intoxicated when he made them, and did not intelligently waive his rights. He made the other statements twelve hours later, after being given a full explanation of his rights, when he was not intoxicated.

Where two confessions have been given, the mere fact that the first confession may have been obtained as a result of improper influence does not necessarily make inadmissible a subsequent confession, provided there has been a showing that the improper influences have been removed.

State v. Holt, 354 So.2d 888, 890 (Fla. 4th DCA 1978), cert. denied 361 So.2d 832 (Fla.1978), appeal dismissed 361 So.2d 832 (Fla.1978). In this case there also appears no basis to conclude the earlier statements “contaminated” the later ones in any way. In Presley’s first statement, he denied participation in the crime. We reject Presley’s argument that his first statement let “the cat out of the bag” and psychologically pressured him to make the later statements.

The final point in this appeal was recently decided by the Florida Supreme Court in favor of the State. Even though the deceased was Presley’s accomplice in the robbery, and not an “innocent victim,” Presley can be charged with second degree murder under section 782.04(3), Florida Statutes (1975). Mikenas v. State, 367 So.2d 606 (Fla.1979). Accordingly we reverse and remand this case for trial.

• AFFIRMED in part; REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

      . State v. Outten, 206 So.2d 392 (Fla.1968).

      . Compare United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947).

      . Section 782.04(3), Fla.Stat. (1975) provides: When a person is killed in the perpetration of, or in the attempt to perpetrate, any arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s.775.082, s.775.083, or s. 775.084.


text:
    Benjamin HABELOW and Lillian Habelow, his wife, Appellants, v. TRAVELERS INSURANCE COMPANY, et al., Appellees.
    No. 79-739/T4-480.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearings Denied Oct. 28, 1980.

      Mitchell J. Frank of Robertson, Williams, Duane, Lewis, Briggs & Ranson, P. A., Orlando, for appellants.
    Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellees.
   SHARP, Judge.

The appellants, Benjamin Habe-low and his wife, Lillian, claim the trial court erred in granting Travelers Insurance Company’s motion to dismiss Counts Two, Three and Four of the amended complaint, with prejudice. We have jurisdiction, and we affirm the lower court’s order as to Counts Two and Three, and reverse it as to Count Four. The order, also declined to dismiss Counts One and Five of the amended complaint. We do not have jurisdiction to review that part of the order.

Count One of the amended complaint alleges Benjamin was an employee of Harris Intertype of Melbourne, Florida. Travelers was the workmen’s compensation carrier. Benjamin was injured at work and suffered a back injury, visual problems, and dizziness. When Benjamin submitted medical treatment and diagnostic bills from the Bascom-Palmer Eye Institute in Miami to Travelers, it refused to pay them as well as any future bills. Benjamin telephoned Travelers for an explanation. The complaint alleges the insurance agent, “with malicious intent to inflict mental anguish” to Benjamin said:

We don’t have to explain the insurance coverage to you, and we will not. We do not have to pay those bills. We did not authorize you to go to Miami. You always had eye trouble. Travelers will not pay for it now or in the future. You don’t need all those doctors. All I’m interested in is getting you off your butt and back to work.

However the treating physician referred Benjamin to the Miami clinic, and he recommended referral to a university clinic to, deal with Benjamin's complex medical problems. One year after Travelers received the recommendation from the treating physician, it authorized sending Benjamin to the Mayo Clinic, Duke University, or Os-chner Clinic. However for a year Benjamin was totally disabled, and delayed in obtaining medical treatment and care.

Count Two alleges a claim for severe mental and emotional injury to Lillian because of Traveler’s treatment of Benjamin. In Count Three Benjamin seeks damages against Travelers because of loss of consortium, due to Lillian’s injuries. In Count Four Lillian seeks damages against Travelers because of loss of consortium, due to Benjamin’s injuries. In Count Five Benjamin sues for breach of contract.

COUNT TWO

The intentional infliction of emotional distress is a newly evolving tort in Florida’s jurisprudence, and its ramifications have not been fully defined. It is allowed only in the most outrageous circumstances. Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980). The Supreme Court quoted Prosser in Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1958):

So far as it is possible to generalize from the cases, the rule which seems to be emerging is that there is liability only for conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind.

Slocum held that the insult or abuse must be measured on an “objective” rather than a “subjective” basis, gauged by a person of ordinary sensibilities, in the absence of special knowledge or notice. There are no allegations in Count Two indicating that Lillian was particularly sensitive or susceptible to emotional distress, or that Travelers had any basis to know she was. Steiner and Munach, P. A. v. Williams, 334 So.2d 39 (Fla. 3d DCA 1976), cert. denied 345 So.2d 429 (Fla.).

Lillian has a more attenuated claim than most plaintiffs because the insult and the abusive conduct alleged in the complaint were directed at Benjamin. In all cases we have found in Florida recognizing the tort of intentional infliction of emotional distress, the plaintiff was the recipient of the insult or abuse, or the message was clearly directed at the plaintiff through a third person. See Ford Motor Credit Company v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979). For these reasons, we affirm the dismissal of Count Two for failure to state a cause of action.

COUNT THREE

Benjamin’s loss of consortium claim for Lillian is “derivative,” and therefore necessarily based on there being a sufficient tort alleged for her in her own right. Faulkner v. All State Insurance Co., 367 So.2d 214 (Fla. 1979); Davis v. Asbell, 328 So.2d 204 (Fla. 1st DCA 1976). Since Count Two does not state a cause of action, neither does Count Three.

COUNT FOUR

Lillian’s loss of consortium claim for Benjamin is also derivative and dependent upon Count One stating a cause of action for Benjamin against Travelers. If Count One alleges a sufficient tort against Travelers, then Count Four should not have been dismissed. A wife (as well as a. husband) may sue for loss of consortium, where her spouse is injured by a defendant’s negligence. Gates v. Foley, 247 So.2d 40 (Fla. 1971). It defies logic to allow this derivative claim for negligent torts and disallow it for intentional torts. Waite v. City of Elmira, 69 Misc.2d 962, 331 N.Y.S.2d 482 (S.Ct. 1972); Commercial Carriers, Inc. v. Small, 277 Ky. 189, 126 S.W.2d 143 (1939); Swartz v. U. S. Steel Corporation, 93 Ala. 439, 304 So.2d 881 (1974). Husbands have been allowed to recover for loss of consortium when their wives are injured by an intentional tortfeasor. See Waller v. First Savings and Trust Company, 103 Fla. 1025, 138 So. 780 (1931). No distinction between rights of action for loss of consortium based on the sex of the plaintiff is permissible.

The trial court ruled that Count One states a cause of action against the defendants, and therefore we reinstate Count Four of the complaint.

AFFIRMED in part; REVERSED in part.

FRANK D. UPCHURCH, Jr., J., and JA-MIESON, FRANCES ANN, Associate Judge, concur.

      . Fla.R.App.P. 9.030(b)(1)(A); Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974); Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955).

      . Fla.R.App.P. 9.130(a)(3); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla.1st DCA 1975); Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

      . Prosser, Intentional Infliction of Mental Suffering: A New Tort 37 Mich.L.Rev. 889 (1939).

      . The sufficiency of Count One is not an ap-pealable order at this stage of the proceedings, and we do not reach that question. Fla.R. App.P. 9.130(a)(3).

      . Art. 1, § 2, Fla.Const.


author: ORFINGER, Judge.

text:
    Willie Lee ELAM, Appellant, v. STATE of Florida, Appellee.
    No. 79-1053/T4-545.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 21, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, Chief, App. Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was found guilty by a jury of the offense of burglary of a dwelling and was sentenced as an habitual offender.

Betty and Earl Penson awoke at 3:00 a. m. on May 2, 1978, to find an intruder in their home. Earl chased him out of the house while Betty checked on her children. The police later that morning apprehended appellant who was identified by the Pen-sons as the intruder. Appellant also had possession of certain items stolen from the house.

Appellant did not testify at the trial. In summation, the prosecutor said:

The case evidence is consistent. It put the defendant right at the scene of the crime at the time it occurred. This is according to Earl Penson. But Earl Pen-son’s testimony is corroborated. That means it is supported by what police officers say. They caught the defendant there a very short time after the burglary occurred, wearing the same clothes that Earl said he had on and in possession of the stolen articles that she didn’t even know were stolen yet. She hadn’t even checked to find out the rings were stolen and the police officer already had them. This evidence is uncontradicted and unre-futed.

Appellant objected and moved for a mistrial, which was denied. He contends that this argument was an impermissible comment on his right to remain silent, citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229,14 L.Ed.2d 106, reh. den. 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). We disagree and affirm.

The remarks by the prosecutor were permissible comments on the evidence and were not comments on appellant’s right to remain silent.

It is proper for a prosecutor in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue. State v. Jones, 204 So.2d 515 (Fla.1967). See also State v. Mathis, 278 So.2d 280 (Fla.1973). It is thus firmly embedded in the jurisprudence of this state that a prosecutor may comment on the uncontradicted or uncontroverted nature of the evidence during argument to the jury. See State v. Jones, supra, at 516-517; Clinton v. State, 56 Fla. 57, 47 So. 389 (1908); Gray v. State, 42 Fla. 174, 28 So. 53 (1900); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974); Woodside v. State, 206 So.2d 426 (Fla. 3d DCA 1968).

White v. State, 377 So.2d 1149, 1150 (Fla. 1979).

This court has also held such argument proper in Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980) wherein we said:

Indeed, if a prosecutor could not make fair comment on the fact that the State’s evidence of guilt was uncontroverted, what would be left for him to argue in a case where the defendant declined to testify?

Finding no error in the proceedings, the judgment and sentence are

AFFIRMED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


author: COBB, Judge.

text:
    OCALA MUSIC & MARINE CENTER, Appellant, v. Harold D. CALDWELL, Appellee.
    No. 79-308.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 21, 1980.
    Phil Trovillo, P. A., Ocala, for appellant.
    William C. Haldin, Jr., of Matthies & Cross, P. A., Ocala, for appellee.
   COBB, Judge.

Caldwell sued Ocala Music & Marine Center, Inc. (hereafter Ocala Marine) for fraud and for deceptive trade practices relating to an outboard motor. The complaint included a plea for the statutory attorney’s fees provided for by the Deceptive And Unfair Trade Practices Act.

Ocala Marine answered without requesting any statutory attorney’s fees. It subsequently filed a counterclaim for quantum meruit that included a prayer for attorney’s fees in the absence of any justiciable issue.

A judgment was rendered in favor of Ocala Marine on the complaint and in favor of Caldwell on the counterclaim. Although Ocala Marine was the prevailing party on the deceptive trade practices claim, the trial court did not award it any attorney’s fees on the ground that Ocala Marine had failed to plead for attorney’s fees. Ocala Marine appeals.

According to our Florida Supreme Court, although it is the better practice to plead attorney’s fees, a party is not required to plead them where they are allowed by statute. Washington v. Rogers, 201 So.2d 636 (Fla. 4th DCA 1967), cert. denied sub nom., Prudence Mut. Cas. Co. v. Washington, 211 So.2d 556 (Fla. 1968); New Amsterdam Cas. Co. v. James, 122 Fla. 710, 166 So. 813 (1936); National Benefit Life Ins. Co. v. Brown, 103 Fla. 758, 139 So. 193 (1931).

Therefore, we reverse that portion of the final judgment that denied Ocala Marine attorney’s fees. We remand this case to the trial court for a proper determination and award of those fees.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . § 501.201, Fla.Stat. (1977), et seq.

      . § 501.210, Fla.Stat. (1977).

      . § 57.105, Fla.Stat. (Supp. 1978).

      . Contra, Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977); Price v. Boden, 39 Fla. 218, 22 So. 657 (1897); 12 Fla.Jur.2d Costs § 31 (1979); The Florida Bar, “Florida Civil Practice Damages” § 9.8 (2d ed. 1980).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Rommie Howard MILLS, a/k/a Lonnie H. Mills, Appellant, v. Trudy Mae HOLCOMB, Appellee.
    No. 79-400.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 20, 1980.
    R. Patrick Phillips, Orlando, for appellant.
    Samuel J. Weiss, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Rommie Howard Mills appeals a final judgment from the Circuit Court for Orange County which partitioned property jointly owned with appellee Trudy Mae Holcomb, claiming that the trial court erred in dismissing his countersuit for imposition of a constructive or resulting trust upon the property.

Appellant permitted appellee and her husband to reside with him. In 1964, appellant conveyed his house to appellee and her husband. He testified that this was done with the understanding that he would retain control during his lifetime and thereafter the property would go to Mr. and Mrs. Holcomb’s children.

Other lots were transferred to the Hol-combs by third parties. Appellant testified that he negotiated these sales and paid the consideration. Mr. Holcomb corroborated appellant’s testimony. Appellant also testified that in 1966 he put up the money for two more lots which also were conveyed to the Holcombs by a third party. Mr. Holcomb testified that these payments were paid from his checking account but that appellant had furnished the funds. Appel-lee denied that any of the payments were made by appellant.

In 1970, the Holcombs divorced and appellant became aware there might be a problem with the status of title to the property and consulted an attorney. Upon request, Mr. Holcomb conveyed his one-half interest to appellant. Appellee, however, considered herself the fee owner and refused to convey her interest or to be bound by the agreement. Appellant did nothing because he lacked the money to institute suit but continued to make the payments in the hope that the Holcombs’ children might still derive some benefit from the property.

The record reflects that the trial court was satisfied that the agreement claimed by appellant existed but was concerned that he was guilty of laches because appellant did nothing to enforce his claim.

We disagree. There was no prejudice demonstrated by the delay. In fact, the delay was to appellee’s benefit because appellant continued to make payments on the property.

We therefore reverse and remand to the trial court for imposition of the trust.

DAUKSCH, C. J., and COBB, J., concur.

      . See State ex rel. Clendinen v. Dekle, 173 So.2d 452 (Fla.1965), holding that the defense of laches is inapplicable in the absence of prejudice attributable to the delay.