author: HARRIS, Presiding Judge.

text:
    Chris Edgar HOLLINS, alias v. STATE.
    8 Div. 574.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.

      Bryce U. Graham, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Colbert County Grand Jury for burglary in the third degree in violation of § 13A-7-7, Code 1975 (Supp.1979). Appellant was arraigned and entered a plea of not guilty. The jury returned a verdict of guilty and the court, pursuant to the Habitual Offender Statute, sentenced appellant to twenty-two years’ imprisonment in the State penitentiary.

Charles L. Montgomery testified he returned to his residence in Sheffield, Alabama, on the morning of March 5, 1981, in response to a phone call from a neighbor. Upon his arrival, he discovered the latch on his back door had been broken and the door forced open. The latch was not broken when he left for work.

He testified that two of his three sons owned several long guns, including two shotguns and a rifle. The guns were normally kept in the boys’ bedroom in a gun rack and in a closet. The witness stated that he had not given appellant permission to enter his residence at any time.

Steven Nickens, a twelve-year-old next-door neighbor of Mr. Montgomery, testified he was in his residence on the morning of March 5,1981, when he heard a noise. The noise sounded like somebody kicking something and sounded as if it came from the Montgomery residence. Steven went outside and saw appellant following another person through the Montgomerys’ back door. He waited behind a truck and saw appellant come out of the Montgomery residence with some guns wrapped in a blanket which he placed in a white station wagon. Steven stated he said, “Somebody call the police,” and then told appellant to put the guns back. The police arrived and placed appellant and an accomplice, Malcolm Green, under arrest. The witness exhibited some confusion on cross-examination by appellant’s counsel between his original statement to police and his testimony at trial. The confusion pertained to whether he actually observed Malcolm Green kick the door and enter it ahead of appellant, and whether his brother Bobby was the one who called the police.

Melissa Nickens, Steven’s sister, testified she also heard the noise on March 5, 1981, and went outside to the back of the Montgomery residence. She observed a white station wagon parked in the Montgomerys’ back yard. After standing there for a time, she observed appellant come out of the Montgomerys’ house with two guns wrapped in a blanket which he placed in the back of a station wagon. She told appellant, “You better put them back in the house because the police are on the way.” Appellant hesitated, and then reentered the house with the guns. She stated she had seen appellant and Malcolm Green in the company of Tony Montgomery earlier that morning at the Montgomery residence. She saw the first two men leave the house, and then observed Tony drive away shortly thereafter. She heard the noise within a few minutes after Tony left the house.

Tony Montgomery testified he was at his father’s house on the morning of March 5, 1981, when appellant and Malcolm Green stopped by about 9:00 for a drink of water and to use the phone. He told them he had to leave, and they left, and then he left. He stated Malcolm “Bubba” Green was his first cousin. He did not, however, keep frequent company with him or appellant. Tony stated he locked the door when he left the house, and that there was no damage to the back door when he left. He returned thirty minutes later and found the police at his house.

Doug Aycock, a Sheffield policeman, answered a call to the Montgomery residence on March 5, 1981. When he arrived, the police chief, Officer DeMaurice, and appellant were outside. He entered the house and found Malcolm Green lying on a bed in the back bedroom. He brought him outside and placed both Green and appellant under arrest. Green appeared to be under the influence of drugs. Appellant, however, appeared sober. Officer Aycock stated he found a gun in a blanket lying on a bed near the bed where Green was lying. Another gun was found inside a dresser with the stock protruding. The white station wagon was found to belong to Malcolm Green’s father. The State rested at the close of Officer Aycock’s testimony. Appellant’s motion to exclude the State’s evidence was denied.

Appellant called Bobby Nickens, who denied having called the police the day appellant broke into the Montgomery residence. On cross examination, he denied having told Officer Aycock that he had placed such a call on the day of the burglary. The appellant rested at the close of Nickens’s testimony.

We note first that appellant’s attorney presented no citation of authority for any proposition of law argued in his brief. He contends that the transcript is so defectively prepared that it denies him due process of law and a fair and impartial trial. He requests that this court order that a complete, new record be prepared in this case to correct the alleged egregious errors. Appellant fails, however, to delineate with particularity any error or omission in the record other than the misspelled name of one juror.

The appellant and his counsel have the duty to check the record and ensure its correctness before submitting it on appeal. Pope v. State, 387 So.2d 300 (Ala.Cr.App.1980). Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977). This court is bound by the record, and the record may not be impeached by matters outside of the record, such as mere conclusory allegations of counsel in brief. Tyus, supra. Rule 10(f), ARAP, which provides for the correction or modification of the record on appeal, was not invoked by the appellant. This rule specifically provides for the correction of an omission from the record. Pope, supra. The present record reveals an appropriate arraignment, the interposition of appellant’s plea of not guilty, and a proper judgment entry. We can only conclude from the present posture of the case before us, that the record on appeal is correct. Ballou v. State, 365 So.2d 352 (Ala.Cr.App.1978).

Appellant argues that there was no evidence that appellant unlawfully broke into and entered the building in question and hence the State failed to prove its case. Burglary in the third degree is defined as follows:

“§ 13A-7-7. Burglary in the third degree.
“(a) A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”

Our review of the evidence above indicates there was ample evidence to prove a circumstantial case for the jury that appellant knowingly entered the Montgomery residence with the intent to commit a crime therein. The common law requirement for a breaking has been omitted by the new criminal code, although the evidence of the forceful entry here is relevant to prove appellant’s mental culpability. Commentary to Ala.Code § 13A-7-7 (1975). The appellant’s intent in entering the building is for the j'ury’s determination and must be determined from the facts testified to by the witnesses and the circumstances as revealed by the evidence. Cook v. State, 409 So.2d 965 (Ala.Cr.App.1981); Wright v. State, 405 So.2d 74 (Ala.Cr.App.1981). The State’s evidence was sufficient in this regard to establish its case under the statute.

Appellant further contends that the trial court erred in refusing to give his requested written charge on the lesser offense of attempt to commit burglary in the third degree. The court’s apparent basis for refusing to give this charge was that the charge was not given to the court until after the court completed its oral charge to the jury. It is well established that the trial court may not establish a specific time at which written charges must be tendered. Johnson v. State, 365 So.2d 123 (Ala.Cr.App.) cert. denied, 365 So.2d 130 (Ala.1978). Any time during the trial, before the jury retires, an appellant may tender appropriate written charges for the court’s consideration. Smith v. State, 51 Ala.App. 527, 287 So.2d 238 (1973), cert. denied, 292 Ala. 750, 289 So.2d 808 (1974). We find however, that the court’s refusal to consider the appellant’s written charge was harmless error, in that the charge would have been properly refused, even if considered. Smith, supra. A charge on the lesser-included offense should not be given when there is no reasonable theory from the evidence to support such a proposition. When the evidence clearly shows the appellant is either guilty of the offense charged, or innocent, the charge on a lesser-included offense is not necessary or proper. Cooper v. State, 364 So.2d 382 (Ala.Cr.App.), cert. denied, 364 So.2d 388 (1978). Here the statute required a knowing entry of a building with the intent to commit a crime therein. The evidence presented demonstrated the completed crime, and nothing short thereof. The entry into the building was completed, and the evidence of appellant’s intent to commit a crime while therein could lead but to one conclusion. There was no evidence presented of appellant’s failure to consummate the crime of burglary in the third degree, which is a necessary element of an attempt. Ala. Code § 13A-4-2 (1975) and the commentary thereto.

Appellant argues the trial court arbitrarily denied his motion for a hearing on his motion for new trial, as well as the motion itself. The decision to grant or deny a motion for new trial rests largely in the sound discretion of the trial court, and is not to be disturbed on appeal in the absence of an abuse of that discretion. Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980). In reviewing such ruling, this court will indulge every presumption in favor of the trial court’s ruling. Jenkins v. State, 384 So.2d 1135 (Ala.Cr.App.1979), cert. denied, 384 So.2d 1141 (Ala.1980). The only ground of the motion for new trial argued by appellant on appeal is that the jurors were sequestered at some point in the trial in the presence of the court reporter, the court bailiff, and the deputy sheriff. Appellant offered no evidence or affidavit in his motion attesting to such an occurrence and the record reveals no such facts. Neither does appellant allege that the illegal occurrence was unknown to him during the trial. The motion does not indicate that any discussion by the jurors pertaining to the case took place in front of the parties mentioned by appellant. Wilson v. State, 387 So.2d 226 (Ala.Cr.App.), cert. denied, 387 So.2d 232 (Ala.1980). Under these facts, we find no error in the denial of appellant’s motion.

Appellant alleges that the record reveals the appellant was not in the courtroom at the time the jury returned its verdict. This omission appears to have been a clerical error, and the record as it appears before us now indicates appellant was indeed present at the time the jury returned its verdict. Our review of the record convinces us that appellant was present in the courtroom at all stages of the trial at which his presence was necessary.

Appellant contends that the State failed to give him reasonable notice of the prior convictions it intended to use in proceeding under the Habitual Felony Offender Statute.

Rule 6(a)(3)(ii) of the Alabama Rules of Criminal Procedure — Temporary Rules requires that, at a reasonable time prior to the sentencing hearing, the defendant be given notice of the prior convictions upon which the State intends to proceed. While Rule 6 and the case law interpreting the statute and rule to date have not expressly stated the form of notice required, written notice appears to be the form of notice presumed proper. “Reasonable notice” has been interpreted as to time for notice, but not as to the form of notice. See Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981); Smith v. State, 401 So.2d 251, (Ala.Cr.App.), cert. denied, 401 So.2d 257 (Ala.1981); Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App.), cert. denied, 406 So.2d 1020 (Ala.1981); Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala.1981).

In the instant case, the record indicates appellant was informed before trial of the State’s intent to proceed under the Habitual Felony Offender Statute. The jury verdict was returned on June 5, 1981. A sentencing date of July 15,1981 was set by the court at that time. At the sentencing hearing on July 15 both appellant and his counsel were sworn and testified they had received no written notice from the State of the convictions under which it would proceed. The State presented no evidence that it had given appellant written notice. The trial court, for the record, stated the following in regard to the notice given to appellant at the time of the sentence hearing:

“BY THE COURT: Let the record show that, ah, the Defendant in the presence of the Court prior to the trial which began on June 4, 1981, was given notice by the District Attorney that he was proceeding under the Habitual Offender Act and let the record show that prior to the trial the defendant was made aware by the District Attorney and his attorney was made aware by the District Attorney that the State proceeded under the Habitual Offender Act. Let the record further show that on the 5th day of June, 1981, when the jury returned a verdict and the Judge adjudged the Defendant guilty of the offense as charged, the Court gave the Defendant and the Defendant’s attorney notice that a pre-sentence report would be available dated July 8, 1981, no wait-strike that from the record — the Court made the Defendant and the Defendant’s attorney aware of it that a pre-sentence report would be available and would be made available to the Defendant and the Defendant’s attorney at least five days prior to the hearing — sentence hearing. Let the record show that the pre-sentence report was made available five days prior to the sentence hearing and the pre-sen-tence report is dated July 8, 1981, and that it has been a Court rule that any attorney that represents a defendant in a criminal case may pick up his copy of the pre-sentence report at the office of the probation officer at the courthouse. Let the record further show no motion prior to this date has been made by the defendant for a specific hearing on the alleged prior convictions of the defendant. And that the prior convictions are all listed in the pre-sentence report and I would like at this time the Defendant and the defendant’s attorney to go over the pre-sen-tence report and any objections they wish to make to any of the listings of the prior convictions they can do at this time.”

The record does not support the trial court’s statement that it informed the appellant or his attorney of the pending sentencing report on the day the jury verdict was returned. However, appellant’s counsel did not specifically deny this statement at the sentence hearing. Additionally, Patsy Davis, who prepared the pre-sentence report, testified she called the appellant’s attorney’s office the day before the sentence hearing and informed his secretary the report was available. Although the pre-sen-tence report is not present in the record, the court stated the report contained all prior convictions upon which the State might rely.

While we are not prepared to specify what particular form of notice may be considered reasonable in every incident in which the Habitual Felony Offender Statute is invoked, we are compelled to hold that more is required than the conflicting state of the record here reveals. Merely making “available” a pre-sentence report prepared for the court’s benefit, which contains all manner of prior convictions and court proceedings in which appellant was involved, can not be equated with the State’s positively giving notice of the convictions upon which the State intends to proceed under the Habitual Felony Offender Statute. We think Rule 6 requires some more affirmative action upon the part of the State to ensure the appellant has the time and opportunity to adequately prepare his case in this regard. Under the facts presented in this record, appellant was not given reasonable notice of the convictions under which the State intended to proceed. No other error to the substantial rights of appellant has been demonstrated. We remand this case for re-sentencing after the appellant has been given reasonable notice of the prior convictions under which the State intends to proceed.

AFFIRMED AND REMANDED FOR PROPER SENTENCING.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Dillard Roy HILL v. STATE.
    8 Div. 586.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.

      Robert M. Hill, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty on an indictment that charged in pertinent part that he “did recklessly cause the death of Rayburn Vess, by shooting him with a pistol, in violation of Section 13A-6-3 of the Code of Alabama.” The court fixed his punishment at imprisonment for ten years and a fine of $5,000.00 and sentenced him accordingly. He had previously been tried for the same incident made the basis of the indictment herein on an indictment charging him with murder. The result of that trial was a verdict finding him guilty of manslaughter and a judgment fixing the same punishment and imposing the same sentence as the judgment from which the instant appeal was taken. For an error in the admission of certain evidence, the former judgment was reversed and the cause remanded, as shown in Hill v. State, 394 So.2d 106 (Ala.Cr.App.1981).

We are not informed by the record proper or the transcript as to what happened to the indictment for murder, but it is obvious that there was no further effort by the State to prosecute the defendant for murder in view of appellant’s having been acquitted of murder by the verdict and judgment finding him guilty of manslaughter. Instead of proceeding under the first indictment, a new indictment was returned, as quoted above in pertinent part, about three months after the reversal in Hill v. State, supra. No question was raised on the trial, and no question is raised here, as to the validity of the proceeding under the second indictment instead of the first indictment.

According to the undisputed evidence in the case, about sundown on Saturday, May 31, 1980, the alleged victim was shot to death by a pistol in the hand of the defendant while both were on or near real property owned by defendant and while they were on or near a public highway. Whether they were on the right-of-way of the highway or on the property of defendant at the time was a hotly contested issue between the parties on the second trial as it was on the first trial. Much testimony was introduced on the subject, consisting largely of many pictures and drawings. We agree with appellant’s statement in his brief, “The issue of whether Vess [the alleged victim] was actually shot on Hill’s [appellant’s] property was a jury question.”

The undisputed evidence shows also that during a period of approximately twenty-four hours prior to the fatal altercation between defendant and the alleged victim, each of them had imbibed a large amount of whiskey or beer. They had encountered each other during that period, but most of the time they were in different areas from each other. Only one witness testified that he was in the area of the homicide at the time it occurred. However, he did not engage in the encounter and he was not in as good a position as the defendant to testify with accuracy as to the exact location of the defendant or the alleged victim immediately before and at the time the victim was shot. We summarize the defendant’s evidence by quoting from appellant’s brief as follows:

“According to Hill’s testimony, Vess pulled in his driveway [the driveway of Hill] got out of his truck, and urinated. Hill noted that he went to Vess and asked him ‘if he didn’t have no more respect for people than that;’ that he told Vess that women and children lived behind his [Hill’s] residence and that traffic passed by; that a man could get shot for doing things like urinating in public; that he told Vess to leave; and that Vess responded ‘To hell with you and your renters.’
“Hill testified that Vess then pulled into a driveway leading to Hill’s rental house; that Vess stopped his truck and leaned toward the glove compartment as though he were getting something; and that Vess then proceeded to turn onto County Road 19 but then pulled back into Hill’s driveway at a fast rate of speed, stopping so close to Hill that he had to move to avoid being hit.
“Hill testified that Vess then got out of the truck and stated that ‘You ain’t got the G— damned guts to shoot nobody;’ that Vess then rushed around the truck; that Hill told him to stop but Vess refused; that Hill remained stationary and shot two or three times as Vess came around the corner of the truck; that Vess was four to six feet away when Hill fired; that there was no muzzle contact; and that he stopped firing when Vess quit advancing on him. According to Hill, Vess’ face was distorted as though he were ‘half-crying or mad’ as he approached; and Hill never saw Vess’ hands, but that he believed from past experience that Vess was carrying a gun.
“Hill stated under oath that Vess grabbed his chest after he was shot; that Vess walked 12 or 15 feet to the other truck; and that he then put his hands against the truck and fell. Hill testified that he then unloaded his pistol and placed it under his mattress and made arrangements for the ambulance and Sheriff to come.”

Perhaps it should be said also that there was considerable testimony by defendant that he was in the “junk parts business” and also periodically sold alcoholic beverages from his residence, that he and Vess had had disagreements in the past, that eight or ten months before the fatal incident defendant and Vess had a confrontation over Vess’s use of foul language in Hill’s home, and that on said occasion Hill told Vess that he [Hill] was not able to fight and Hill proceeded to stay in the bathroom until Vess left. According to the defendant, he had been hospitalized several times for a heart condition and he could not handle heavy labor after his heart problem began and Mr. Vess knew the defendant had a heart condition. The contiguous real estate of the defendant that included or was adjacent to the place where defendant and the victim were at the time of the homicide consisted of defendant’s place of business, defendant’s residence and some apartments or a house that others were occupying as renters from defendant.

At the conclusion of the lengthy evidence introduced by the State, including the testimony of ten witnesses, defendant moved to exclude the evidence on the ground that it “failed to prove a prima facie case against this Defendant” and moved to exclude the evidence on the ground that there was “a fatal variance between the indictment and the evidence.” The court overruled each motion, and appellant contends that each ruling was erroneous.

Although, as previously indicated, we are somewhat puzzled with the course of the pleadings taken by the State by the return of a new indictment after the judgment of conviction and sentence on the first indictment had been reversed, we are unable to agree with appellant that a prima facie case was not presented as to the express charge of the indictment. The gist of appellant’s contention in this respect is to be found in his brief as follows:

“It is obvious from the facts that Hill did not shoot Vess ‘recklessly,’ but shot him intentionally, in self defense. ‘Intentionally’ is defined as follows: ‘A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause or to engage in that conduct.’ Ala.Code, § 13A-2-2(l) (1975).”

Appellant is not at fault for the anomaly now presented by him, i.e., that he, if guilty, was guilty of murder rather than manslaughter under Ala. Criminal Code, § 13A-6-3(a)(l). Nevertheless, we cannot agree with appellant’s contention that there was no evidence to support a finding that the homicide was committed “recklessly” instead of “intentionally.” We doubt not that the evidence shows without dispute that defendant “intentionally” shot the alleged victim, but the evidence was sufficient upon which to base a finding that defendant did not “intentionally” kill the alleged victim. Notwithstanding any anomaly, there was prima facie evidence of defendant’s guilt of the crime expressly charged in the indictment and there was no fatal variance between the indictment and the evidence. The court was not in error in overruling the defendant’s motions to the contrary.

A major contention for a reversal pertains to the admission in evidence of testimony of Dr. Harry Santeno, who was employed under contract with the state of Alabama, Department of Forensic Sciences, as to the external and internal autopsy performed by him upon the body of the alleged victim. According to Dr. Santeno, he had previously had occasion to perform post mortem examinations on about two thousand or twenty-five hundred bodies involving death from gunshot wounds. He said that on the left side of the temporal area of the head of Mr. Vess there was a bruise or contusion, a “second wound as an entrance of a gunshot wound that was a contact wound on the lateral — on the outer aspect of the left shoulder” and another gunshot wound in the left chest of Mr. Vess that went through his heart and was the wound that caused his death. Each was a .38 caliber bullet wound. Both bullets were recovered during the autopsy. Dr. Santeno described the gunshot wound of the shoulder as follows:

“That was — I have reported the second wound as an entrance of a gunshot wound that was a contact wound on the lateral — on the outer aspect of the left shoulder one and a half inches from the top of the shoulder and seven and a half inches to the left of the mid-line of the chest. This wound was jagged and was blackened inside with soot, and gave every criteria for a contact wound.
“Q. What is a contact wound, please sir?
“A. That’s a wound sustained with the muzzle pressed against the target.”

The issue presented by appellant as to the testimony of Dr. Santeno is stated in his brief as follows:

“Testimony by one not an expert in the use of firearms concerning the distance between the deceased and the gun at the time of firing is reversible error.”

Immediately after the statement of the particular issue, appellant argues in his brief:

“In the case sub judice, Dr. Santeno, a forensic pathologist, testified that one of the gunshot wounds inflicted on the deceased was a contact wound, i.e., ‘a wound sustained with the muzzle pressed against the target.’ (R. p. 211) Appellant respectfully submits that Dr. San-teno was not qualified to give such an opinion.”

Without determining whether Dr. Santeno was qualified to give such an opinion, we must note, as is shown by the previous quotation herein from Dr. Santeno’s testimony, that there was neither an objection to the question asked Dr. Santeno by State’s counsel, “What is a contact wound, please, sir?” nor a motion to exclude his answer, “That’s a wound sustained with the muzzle pressed against the target.” Thereafter, counsel for the State, not content as he should have been with the witness’s testimony on the subject, continued to question the witness along the same line, with the result that there were objections by defendant’s counsel and colloquies among the court and counsel for the respective parties. We quote the pertinent part of the remainder of the transcript on the subject, commencing with the next question asked by State’s counsel:

“Q. In other words, you are saying that the wound in the left shoulder, in your opinion as an expert and as a physician, and as a person performing a post mor-tem examination, that the shoulder wound was sustained by having the gun muzzle pressed up against the skin of Rayburn Vess?
“MR. ROGERS: We are going to object. He is not qualified to testify to this.
“MR. LITTRELL: Judge, I think he is.
“MR. ROGERS: We object.
“THE COURT: Well, I will sustain it as to the form of the question. You will just have to get into it in a direct manner.
“BY MR. LITTRELL
“Q. Describe the wound in detail, please, sir?
“A. The wound had no gunshot residue of any kind surrounding it. The wound was—
“Q. In other words, you are saying that there were no powder burn, like folks call them around the outside of the wound?
“MR. ROGERS: Now, we object, Your Honor, as to leading and clarifying. I believe the jury can understand what he is saying. He said no residue, gunshot residue.
“BY MR. LITTRELL
“Q. Can you describe residue as something else, doctor?
“A. I can.
“Q. Would you do so, please, sir?
“A. Residue is my term for any material that comes from the muzzle of a gun that has been fired. It consists primarily of gunpowder that is burned, gunpowder that is burning, and gunpowder that is not burned, and it also includes fragments of any metal that may come from abraiding or rubbing the muzzle of the barrel of the gun. And it also includes scrappings from the missile that comes out, usually a bullet; that is gunshot residue.
“Q. And it’s your testimony that you found none of this material on the outside or surrounding the entrance of the wound in the shoulder?
“A. That’s correct.
“Q. All right, sir. Would you describe— go ahead and describe in detail any other observations that you made concerning the shoulder wound?
“A. The inside of the wound was the area in which the gunshot residue had been deposited. The inner aspect of the wound was blackened with soot, and contained gunpowder particles that were burned, and those that were unburned. In addition, the third feature of the wound was a jagged edge to the edges— excuse me, jagged edges of the wound; this results from the blow back of the gasses as they hit the bone and blew back and tore the edges of the wound.
“Q. Based on your examination of the wound, Doctor, that we are talking about in the shoulder, and also based on your experience and training, were you able to come to a conclusion or opinion as to how this wound was inflicted?
“A. Yes, sir.
“MR. ROGERS: Judge, now, we are going to object. He has to do with autopsies. I believe that Mr. Brett Wheeler is an expert in the field that they are not [sic, which we assume is meant for “now.”] trying to qualify this gentleman in.
“MR. LITTRELL: Judge, we are talking about a wound to the body, which he examined.
“THE COURT: Well, again, I will sustain it as to the form of the question. You can ask him if he has an opinion as to the distance the end of the gun barrel was from the body.
“MR. LITTRELL: Very well.
“BY MR. LITTRELL:
“Q. Doctor, do you have an opinion as to the distance of the gun barrel from the shoulder at the time the gun was fired and the wound inflicted?
“A. I do.
“MR. ROGERS: We are going to object on the basis that this man is not qualified to answer this question.
“THE COURT: Overruled.
“MR. ROGERS: We take exception.
“A. Ido.
“Q. What was that, please, sir?
“A. Close contact, no distance that could be measured.
“Q. All right, sir. Close contact. No distance that could be measured. Is that your answer?
“A. That is my answer.
“MR. ROGERS: We object, Your Honor, him repeating it and going over it. We take an exception and ask that the Court instruct the jury not to—
“THE COURT: Well, just let the witness answer, Mr. Littrell, and the jury, everyone of them can hear.
“MR. LITTRELL: All right.”

Appellee takes the position in its brief that “There was no timely objection to the testimony that there was a contact wound on the victim’s body” and that “an objection to evidence must be made when that evidence is offered,” citing Beckley v. State, 353 So.2d 542 (Ala.Cr.App.1977). In support of its position, appellee also cites Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, 738 (1975), cert. denied, 295 Ala. 414, 327 So.2d 740 (1976). In a reply brief, counsel for appellant seeks to distinguish the instant case from Beckley and Oatsvall. Our review of the evidence convinces us that whether or not the instant case is distinguishable from the cited cases, no reversible error occurred as to the matter, for the reason that any ruling in connection therewith adverse to defendant was innocuous. As the testimony of Dr. Santeno had made it clear before any objection was made by defendant that the shoulder wound was a contact wound and that a contact wound consists of an injury sustained with the muzzle of a gun pressed against the target, the jury already had for its consideration substantially the same evidence found in his subsequent testimony that as to such wound there was, “no distance that could be measured” between the gun barrel and the shoulder at the time the gun was fired and the shoulder injured. To rule otherwise would be inconsonant with Rule 45, Rules of Appellate Procedure. Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946); Wade v. State, 349 So.2d 141 (Ala.Cr.App.1977); Allen v. State, 390 So.2d 676 (Ala.Cr.App.1980). Moreover, although we do not condone the needless repetition of substantially the same evidence, the transcript does not show an objection to the specific question to which Dr. Santeno answered: “Close contact, no distance that could be measured.” It is regrettable that even after this answer was given, repetitious questioning continued, to which defendant properly objected, and the court put an end to such interrogation.

Appellant asserts that the trial court erred in refusing the following charges requested by defendant:

“D27 I charge you the Jury that if you find from all the evidence that Rayburn Vess at the time of the shooting was a criminal trespasser on the premises of Dee Hill and you further find from all the evidence that Dee Hill reasonably believed that Rayburn Vess was about to commit an unlawful deadly physical attack on Dee Hill, then, you can not convict the defendant.”
“D30 I charge you the Jury that if you find from all of the evidence that Dee Hill on the 31st day of May, 1980, told Rayburn Vess not to come back on his property and you further find from the evidence that Rayburn Vess in a matter of minutes left Dee Hill’s property and then returned to the property of Dee Hill, then you must consider Rayburn Vess a criminal trespasser on the property of Dee Hill.
“D44 I charge you the Jury that if you believe from all the evidence that Rayburn Vess was a trespasser and that Dee Hill at the time the fatal shots were fired was within the curtilage of his dwelling house, then, I charge you the Jury that Dee Hill had no obligation to retreat from the curtilage of his dwelling house to avoid shooting Rayburn Vess.”

Appellant also urges that his requested charge D31 was erroneously refused, but as he concedes that it is substantially the same as and no better than D27, our treatment of D27 would seem to suffice.

The requested charges seek to invoke for the benefit of defendant § 13A-7-4 of the relatively new Criminal Code of Alabama, which provides:

“(a) A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.
“(b) Criminal trespass in the third degree is a violation.”

We think that the charges were at least misleading and, for that reason, were properly refused in that to constitute a criminal trespass one must “knowingly enter or remain” in or on the property of another. In this particular case, in view of the close question as to whether Mr. Yess was on property of the defendant, there is little basis, if any, for an inference that he was “knowingly” on defendant’s property at the time he was shot by defendant. To have properly invoked the benefit of § 13A-7-4 by his requested charges, defendant should have hypothesized them on knowledge by Mr. Vess that he was on defendant’s property. For additional reasons, each charge was properly refused, as we now endeavor to show.

Charge D27 ignored an essential element of a valid defense of self-defense, whether on defendant’s property or not, that is, defendant’s freedom from fault in bringing on the difficulty. Cauley v. State, 33 Ala.App. 557, 36 So.2d 347 (1948), cert. denied, 251 Ala. 163, 36 So.2d 354; Sanford v. State, 2 Ala.App. 81, 57 So. 134, 138 (1911).

Even if Charge D30 were hypothesized on knowledge by Vess that he was on the property of defendant, the charge would remain abstract.

Charge D44 was substantially covered by the following portion of the court’s oral charge:

“If you found as a matter of evidence that he [defendant] was within the curti-lage or within the realm of his home or where he works, then on the question of self defense, you would not have to find that he would have to retreat, because the law is you don’t have to retreat, if you are in your work place or if you are within your home or within the curtilage of your home; that element of self defense would be found to be there on the evidentiary finding that where he was was his home.”

Even though there is no conflict in the evidence as to what occurred between defendant and the victim a few moments before the homicide, a jury question was presented as to whether defendant acted in self-defense. As stated by Judge Bowen in Mack v. State, Ala.Cr.App., 348 So.2d 524, 529 (1977):

“When the issue is present, the state must prove that the accused did not act in self-defense in the sense that the state must prove a prima facie case of unjustified homicide. However, even if the evidence of self defense is undisputed, the credibility of the defendant with respect to the evidence of self-defense is for the jury, and they may, in their discretion, accept it as true or reject it. Washington v. State, Ala.Cr.App., 339 So.2d 611, cert. denied, Ala., 339 So.2d 616 (1976); Moore v. State, 54 Ala.App. 22, 304 So.2d 263, cert. denied, 293 Ala. 768, 304 So.2d 268 (1974).”

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.


author: PER CURIAM. McDONALD, Justice,

text:
    Ernest Lee MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 58795.
    Supreme Court of Florida.
    March 25, 1982.
    Rehearing Denied July 22, 1982.
    Larry S. Hersch of Waller & Hersch, Dade City, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Ernest Miller appeals his conviction of first-degree murder and sentence of death. We have jurisdiction and affirm both the conviction and sentence.

A grand jury indicted Miller and his stepbrother William Jent for the death of a young woman known only as “Tammy.” The trial court severed their cases for trial, but all their pre- and post-trial proceedings were combined. Their respective juries convicted each defendant of first-degree murder as charged, but Miller’s jury recommended life imprisonment while Jent’s recommended a sentence of death. In a combined sentencing order the trial court imposed the death penalty on both Miller and Jent.

Miller urges nine points on appeal; six of these points are identical to points raised in Jent v. State, 408 So.2d 1024 (Fla.1981), and have been decided adversely to Miller’s contentions in Jent. Even though Miller and Jent had separate trials, Jent disposes of Miller’s arguments regarding the evidence presented at his trial. With the exception of two witnesses who testified at only one trial each, the same persons testified substantially the same at both trials. On reviewing the instant record, we find Miller’s conviction supported by competent substantial evidence.

Miller urges that the trial court erred in failing to suppress a statement which Miller made to Jent while in jail awaiting trial. While listening to a radio newscast about a man who had confessed to several murders, Miller asked Jent if he thought that person had “confessed to the one we did.” A cellmate, lying on his bunk reading a book, overheard Miller’s question and, after a suppression hearing, testified to this episode at trial.

The cellmate had acted as an informant for the sheriff’s department in several drug cases and had spoken with the lead investigator of the instant homicide sometime before Miller made his incriminating statement. This, claims Miller, made the cellmate an agent of the state, requiring reversal of his conviction under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), and Malone v. State, 390 So.2d 338 (Fla.1980). We disagree.

Both the cellmate and the detectives who interviewed him testified that he was instructed not to draw Miller or Jent into talking about the charges against them. There is no evidence in the record to show that the cellmate occupied a position of trust regarding Miller. Likewise, there is no evidence that the cellmate “deliberately used his position to secure incriminating information.” 447 U.S. at 270, 100 S.Ct. at 2186. Unlike in Malone, Miller’s comment was not “directly elicited by the State’s stratagem deliberately designed to elicit an incriminating statement.” 390 So.2d at 339. We find that the trial court did not err in denying the motion to suppress and properly allowed the cellmate’s testimony into evidence.

Miller’s final arguments are that the trial court improperly limited the consideration of mitigating evidence and that the court erred in overriding the jury’s recommendation of life imprisonment. The trial court gave the standard instruction on aggravating and mitigating circumstances, which this Court recently upheld against the same claim of unconstitutionality as made in this appeal. Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). We therefore find no merit to Miller’s claim of impropriety regarding the sentencing instructions. Additionally, we do not find reversible error in the trial court’s failing to allow Miller’s psychologist to testify as to Miller’s rehabilitative capacity. The effectiveness of the psychologist’s testimony, even without the complained-of omission, is evidenced by the jury’s recommendation of life imprisonment.

In his sentencing order the trial court found no substantive difference between Miller and Jent in their participation in the crime. Notwithstanding the jury’s recommendation, he found that Miller clearly deserved the death penalty. Mindful of the constitutional demand that the death penalty must be imposed in a regular, rational, consistent manner, the court also found that following the recommendation of Miller’s jury would result in an unwarranted disparity in sentences. He therefore sentenced both defendants to death, finding that the mitigating evidence did not outweigh the evidence proved in aggravation.

The standard set out in Tedder v. State, 322 So.2d 908, 910 (Fla.1975), has been met in this case. On the totality of the circumstances virtually no reasonable person could differ on the appropriateness of the death penalty. See Johnson v. State, 393 So.2d 1069 (Fla.1980). We agree that the disparity in the recommended sentences is not warranted. See Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978).

Finding no error, we affirm both the conviction and sentence.

It is so ordered.

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

McDONALD, J., concurs with conviction and dissents with sentence with an opinion, in which OVERTON, J., concurs.

McDONALD, Justice,

dissenting.

I concur in affirming Miller’s conviction but dissent as to his sentence.

The horrible death imposed upon the decedent was the culmination of a drug and alcohol infested party in which the defendants Miller and Jent participated with other young men and women. This group had left a bar and arrived at a swimming hole near a railroad trestle where the victim, not with or a part of the party, was encountered. A fight ensued between her and one of the girl friends, whereupon Miller and Jent interceded on behalf of the girl friend. These two thereafter beat the victim into helpless submission (Miller used a stick handed to him by one of the girls) following which they threw her into the trunk of Miller’s car. Later she was raped by Miller, Jent and two more men while the girls looked on. They doused her with gasoline and set her afire. One can hardly imagine a more brutal, senseless, gruesome or deplorable crime. It cannot be condoned in the slightest. But it does not necessarily follow that the penalty should be death, particularly when the jury has recommended life.

In Tedder v. State, 322 So.2d 908 (Fla.1975), this Court set out the standard which must be met in order to affirm a trial court’s sentence of death over a jury’s recommendation of life imprisonment.

When all the circumstances surrounding this homicide, in conjunction with the character and nature of the defendant are considered, it cannot be said that the facts are so clear and convincing that virtually no reasonable person could differ that death is appropriate. Therefore I feel the jury’s recommendation should be followed.

A psychologist testified that Miller has a weak ego, that he is a “follower,” that he is whatever his environment may be around him. He indicated that the violence that comes from Miller is what Miller believes others may want of him and that Miller would be quite willing to go along with them. The psychologist indicated that if the group were different so would be Miller’s conduct. By its recommendation, the jury obviously considered this testimony and found Miller deserving of some mitigation of sentence. The defense presented no such evidence at Jent’s sentencing proceeding, and I find that the evidence presented in the two sentencing proceedings justified the respective jury recommendations.

It appears to me that the trial judge felt that the circumstances of this homicide were so egregious that they overwhelmed any other consideration. Still, there was but one real aggravating circumstance (cruel, atrocious and heinous) and one admitted mitigating factor (no prior criminal record). The evidence is also susceptible of a finding that this defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

I would vacate Miller’s sentence and remand for imposition of a sentence of life imprisonment with no possibility of parole for twenty-five years.

OVERTON, J., concurs.

      . Art. V, § 3(b)(1), Fla.Const.

      . The facts are set out more fuly in Jent v. State, 408 So.2d 1024 (Fla.1981).

      . (1) Denial of access to grand jury testimony; (2) sufficiency of the evidence; (3) failure to grant new trial; (4) “weakness” of the evidence in mitigation; (5) constitutionality of § 921.-141(5)(i); (6) victim’s identity.


author: BOYD, Justice.

text:
    Roy A. BORGES, Petitioner, v. STATE of Florida, Respondent.
    No. 60381.
    Supreme Court of Florida.
    April 8, 1982.
    Rehearing Denied July 20, 1982.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Mark Horn and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of a decision of a district court of appeal. The district court certified that its decision passed upon two questions of great public importance. Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioner was convicted of burglary while armed with a dangerous weapon, possession of tools with intent to use them to commit burglary or trespass, possession of a firearm by a person convicted of a felony, and carrying a concealed firearm. The trial court imposed a separate sentence of imprisonment for each offense, to be served consecutively. Petitioner appealed, contending that the single transaction rule and the Double Jeopardy Clause of the Fifth Amendment prohibit these multiple convictions and sentences. The district court affirmed on the authority of section 775.-021(4), Florida Statutes (1977). The court certified the following questions as being of great public importance:

(1) Has the advent of Florida Statute 775.021(4) done away with the single transaction rule?
(2) Is category 4 of Brown v. State, 206 So.2d 377 (Fla.1968), adequate to safeguard a defendant’s right not to be subject to double jeopardy?

394 So.2d at 1049. We answer both questions in the affirmative and approve the decision of the district court.

Petitioner argues that his multiple convictions and sentences in this case violate the single transaction rule. In Florida, the “single transaction rule” finds its origin in Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942). It was there held that a person charged with several offenses arising from a single criminal transaction should only be convicted of the most serious offense charged. In Simmons the two offenses, arising out of a single episode, were assault with intent to rape and attempted carnal intercourse with an unmarried minor female. The rule has had a varied application, being grounded as it is in somewhat flexible notions of fairness. At times the courts have looked at the identity or discreteness of the criminal elements, at other times at the identity or discreteness of the evidentiary proof. See, e.g., Johnson v. State, 366 So.2d 418 (Fla.1978); State v. Heisterman, 343 So.2d 1272 (Fla.1977); State v. Ray, 331 So.2d 316 (Fla.1976); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Estevez v. State, 313 So.2d 692 (Fla.1975); Foster v. State, 286 So.2d 549 (Fla.1973); Cone v. State, 285 So.2d 12 (Fla.1973); Williams v. State, 337 So.2d 1038 (Fla. 1st DCA 1976), aff’d, 346 So.2d 67 (Fla.1977); Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976); Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975); Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971).

Section 775.021(4), Florida Statutes (1977), provides:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

This statute, an enactment of the 1976 legislature, chapter 76-66, Laws of Florida, was intended to authorize multiple convictions and separate sentences when two or more separate criminal offenses are violated as part of a single criminal transaction, except for lesser included offenses. It took effect after the operative facts had transpired in all the above-cited cases. The statute has abrogated the single transaction rule. Therefore petitioner’s argument based upon the single transaction rule is without merit.

Petitioner argues that even in light of the abrogation of the single transaction rule, he has been subjected to improper multiple convictions based on the statute’s exclusion of lesser included offenses. He argues that under the facts of the case as shown by the evidence the crime of possession of burglary tools was a lesser included offense of the crime of burglary and the crime of carrying a concealed weapon was a lesser included offense of the crime of possession of a firearm by a convicted felon.

We find these arguments to be without merit. A less serious offense is included in a more serious one if all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter. If each offense requires proof of an element that the other does not, the offenses are separate and discrete and one is not included in the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Petitioner’s argument focuses not on the elements of the crimes but on the variables of evidentiary proof and invokes the “category four” concept of offenses that may or may not be lesser included offenses under Brown v. State, 206 So.2d 377 (Fla.1968). The Court in Brown was attempting to provide guidance to trial courts on the question of when jury instructions on lesser included offenses must be given. The “category four” concept developed there is applicable but of limited utility in the present context. Moreover, the Florida Standard Jury Instructions in Criminal Cases (1981), contains a Schedule of Lesser Included Offenses which guides the trial courts with greater clarity and certainty than the “category four” concept of Brown. We agree with the district court that none of the crimes of which petitioner was convicted is a lesser included offense of any of the others. Therefore, separate convictions were proper and it was within the discretion of the trial court to impose consecutive sentences.

Finally, petitioner argues that his four separate convictions and sentences for what he says is essentially one offense of burglary enhanced by the carrying of a firearm violate the Double Jeopardy Clause of the Fifth Amendment. This argument is without merit because where the legislature has expressed its intent that separate punishments be imposed upon convictions of separate offenses arising out of one criminal episode, the Double Jeopardy Clause is no bar to such imposition. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The “power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them, resides wholly with the” legislature. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980). The Double Jeopardy Clause forbids the state to seek and the courts to impose more than one punishment for a single commission of a legislatively defined offense. “But the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Id. at 688, 100 S.Ct. at 1436. The Double Jeopardy Clause “presents no substantive limitation on the legislature’s power to prescribe multiple punishments,” but rather, “seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense.” State v. Hegstrom, 401 So.2d 1343, 1345 (Fla.1981) (footnote omitted).

The explicit exclusion of lesser included offenses in section 775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed. But the power of definition of a crime resides wholly with the legislature. Therefore the use of the exclusion of lesser included offenses as a means of indicating when a convicted person may not be separately sentenced does not and cannot contravene the Double Jeopardy Clause. We emphasize, however, that this holding applies only to multiple sentences arising from a single trial and does not concern questions which might arise from subsequent prosecutions.

In a supplemental brief, petitioner has raised as a further point the argument that he was deprived of effective assistance of counsel at his trial. This point was neither passed upon by the district court of appeal nor certified by it to this Court. Therefore we shall not consider it.

We hold that petitioner’s multiple convictions and sentences are proper. We answer the certified questions in the affirmative and approve the decision of the district court of appeal.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.

        See § 810.02(2)(b), Fla.Stat. (1977) (burglary while armed), § 810.06 (possession of burglary tools), § 790.23 (possession of firearm by convicted felon), and § 790.01(2) (carrying concealed firearm).


author: OVERTON, Justice.

text:
    CITIZENS OF THE STATE OF FLORIDA, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee.
    No. 60451.
    Supreme Court of Florida.
    April 29, 1982.
    Rehearing Denied July 20, 1982.
    Jack Shreve, Public Counsel, Michael McK. Wilson, Deputy Public Counsel and Benjamin H. Dickens, Jr., Associate Public Counsel, Tallahassee, for appellant.
    William S. Bilenky, Gen. Counsel, Virginia Daire Reber, Associate Gen. Counsel and Norman H. Horton, Jr., Staff Counsel, Florida Public Service Commission, Tallahassee, for appellee.
    Earl B. Hadlow and John T. Sefton of Mahoney, Hadlow & Adams, Jacksonville, William B. Barfield and J. Lloyd Nault, II, Miami, and Drury B. Thompson and John F. Beasley, Atlanta, Ga., for Southern Bell Telephone and Telegraph Co.
   OVERTON, Justice.

This is a direct appeal from the Florida Public Service Commission’s order approving represcription of intrastate depreciation rates for Southern Bell Telephone and Telegraph Company for the calendar year 1980. The approved represcription is identical with the depreciation rate schedule recommended by the Federal Communications Commission. We affirm.

The present appeal emanates from PSC order 9678. However, the issue in contention evolves from a prior PSC order, order 9564. In the latter, Southern Bell, public counsel, and others entered into a stipulation, approved by the PSC, whereby Southern Bell would refund to its customers a specific amount for the calendar year 1979 and “whatever amount, if any, that the intrastate earnings reflected on the books of Southern Bell exceed 9.02% on average net investment for the calendar year 1980.” No appeal was taken from order 9564.

The order presently under review, No. 9678, concerns a determination of the appropriate depreciation rate Southern Bell may enter on its books for the calendar year 1980. Historically, depreciation has been represcribed at regular intervals. The process begins with the Federal Communications Commission conducting a study, in accordance with 47 U.S.C. § 220 (1976), with input from the affected states to determine the appropriate depreciation for interstate depreciation. After the FCC sets this figure, it recommends the amount each state should adopt for the depreciation period. The reason for this process is to avoid multiple depreciation of the same equipment and to determine proper depreciation for capital investments used for both interstate and intrastate communications. The state is not absolutely bound by the FCC recommendation.

In accordance with the foregoing procedure, Southern Bell submitted to the FCC its 1980 study and request for increased equipment depreciation represcription. Southern Bell requested an increase in depreciation for all states it serves and requested an increase in Florida of $54 million. The FCC studied this proposal and, after receiving input from all affected states, promulgated a recommended increase for Florida of $28 million. The FCC also recommended that the depreciation be retroactive to January 1, 1980. Thereafter, the following events transpired:

On September 8,1980, in accordance with title 47, the FCC solicited comments from the state public service commissions, including Florida. The PSC thereafter opened its docket to consider the new proposed depreciation rate.

On September 26,1980, the citizens of the State of Florida, through public counsel, moved the PSC to postpone its hearing of the proposed represcription. Public counsel feared that any depreciation allowance increase would adversely affect Southern Bell’s 1980 authorized rate of return and the refund set by stipulation in order 9564 (depreciation is a factor in computing the rate and refund).

On October 30, 1980, apparently after public counsel met with PSC staff, public counsel entered a notice of withdrawal of objection upon the condition that “the Commission recognize in its order resulting from this docket that increased depreciation expense applicable to months prior to the date of this order shall not affect net operating income for calendar year 1980 (regardless of date booked) for purposes of computing any refunds which may be due under the stipulations approved in Order No. 9564 issued September 24, 1980.” Public counsel contended that the proposed depreciation re-prescription would violate the stipulation upon which the order 9564 refund’s terms were established and also constituted retroactive rate-making.

On December 8, 1980, the PSC met, affording all parties oral argument, to consider the proposed depreciation represcription, the effect that retroactive application of the increased depreciation to January 1, 1980, would have on the order 9564 refund, public counsel’s objections thereto, and the language contained in the stipulation which resulted in order 9564.

On January 27, 1981, the PSC issued its order 9678 which approved the proposed depreciation allowance increase, including a finding that, even though the depreciation rates did affect the order 9564 refunds, depreciation was separate from the rate base and that it should be considered by itself.

Public counsel argues that depreciation represcription is not a bookkeeping entry but, rather, under the circumstances, constitutes a retroactive change in the rate base. Public counsel argues that both section 364.-14, Florida Statutes (1979), and City of Mi ami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968), prohibit the PSC from establishing rates retroactively. Accord Public Utilities Commission v. United Fuel Gas Co., 317 U.S. 456, 63 S.Ct. 369, 87 L.Ed. 396 (1943). Public counsel also asserts that the effect of the PSC’s actions places an improper construction on the 9564 stipulation and divests Southern Bell’s consumers of vested rights, contrary to City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961).

We find that public counsel’s reliance on section 364.14 and City of Miami is misplaced because that section and case concern rate-making. Under the present facts, the PSC was not rate-making but, rather, was considering depreciation repre-scription. We acknowledge, as did the commission, that new depreciation allowance does have an effect on the order 9564 stipulation and refund. The PSC determined, however, that this was a factor that all parties knew or should have known would affect the 1980 refund. In the words of Commissioner Cresse, in the December 8, 1980, hearing:

I think the main issue is whether or not the new represcription depreciation rate is appropriate or inappropriate. Notwithstanding what impact that has on any refunds or non-refunds because I think if you get those things combined, you’re letting the appropriate and proper prescription of depreciation rates get confused with what further impact that may have. And you can look at it in the short-term or long-term period.
So I think what we’re dealing with here is whether or not the depreciation rates which are presently prescribed for Southern Bell by this Commission are adequate or inadequate and whether or not they should be revised.
In my opinion, over the long run, you are looking at, on one hand, increased expenses which are, in fact, a recovery of capital. And, on the other hand, you’re looking about an increased rate base which the company’s going to be entitled to get about 18 to 19% on in revenue requirements.

We reject both the contention that the PSC’s approval of the depreciation repre-scription constitutes retroactive rate-making and the claim that the proposed represcription was precluded by the prior stipulation.

We find that the PSC fully considered the retroactive application of the depreciation allowance and that public counsel had a full opportunity to be heard on this and other issues. We conclude that the commission properly exercised its authority in the entry of order No. 9678. The order is affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN, McDONALD and EHRLICH, 'JJ., concur.


author: OVERTON, Justice. ADKINS, Justice,

text:
    CITY OF LAUDERDALE LAKES, a Florida municipal corporation; Howard Craft, Mayor of the City of Lauderdale Lakes; Alfonso Gereffi, Jerome J. Cohan, Morris Klein, Lyman L. Allen, Louis Greenwald, Harry Kaufman, City Councilmen; and Ben Eigner, Building Official, Petitioners, v. Herman CORN, Trustee, Respondent.
    No. 57247.
    Supreme Court of Florida.
    June 17, 1982.

      James C. Brady, Fort Lauderdale, and Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for petitioners.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for respondent.
    Terrence J. Russell and Kathleen V. McCarthy of Ruden, Barnett, McClosky & Schuster, Fort Lauderdale, for Gulf + Eastern Development Corp., amicus curiae.
    Stephen W. Metz, Tallahassee, for Florida Home Builders Association; and Duane Searles, Washington, D.C., for Nat. Ass’n. of Home Builders, amicus curiae.
   OVERTON, Justice.

The Fourth District Court of Appeal has certified to us, as a question of great public interest, the following:

May a city be required to post a bond for damages for delay in order to secure a stay of a final judgment that requires the public body to permit the construction of a development project?

City of Lauderdale Lakes v. Corn, 371 So.2d 1111, 1112 (Fla. 4th DCA 1979). We answer the question in the negative because the city’s action is in performance of a legislative “planning-level” function.

In the trial court, respondent, a land developer, succeeded in having a municipal zoning ordinance declared invalid. Petitioner city appealed the adverse ruling. Respondent thereafter moved the trial court to compel the city to post supersedeas bond as a condition of the automatic stay of the trial court’s ruling, afforded by Florida Rule of Appellate Procedure 9.310(b)(2), pending the city’s appeal. The trial court granted the motion and required the city to post a $1.14 million bond for potential damages for delay. The district court affirmed. We reverse.

Rule 9.310(bX2) provides:

Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the State, any public officer in an official capacity, board, commission or other public body seeks review; provided that on motion the lower tribunal or the court may impose any lawful conditions or vacate the stay.

Subsection (c)(2) of the same rule states:

Conditions. The conditions of a bond shall include a condition to pay or comply with the order in full, including costs, interest, fees, damages for delay, use, detention and depreciation of property, if the review is dismissed or order affirmed; and may include such other conditions as may be required by the lower tribunal.

The district court concluded that a court could require a public body to post superse-deas reasoning that “[u]nder Fla.R.App.P. 9.310(b)(2) a public body is automatically granted a stay upon filing a notice of appeal. The rule further provides that the trial court may impose conditions on the stay or even vacate the stay. Hence, while the stay is automatic, it is not a matter of absolute right .... ” 371 So.2d at 1112.

The district court held that because subsection (c)(2) provided as a condition “damages for delay,” supersedeas bond was justified in the instant case.

While we agree that the court may require a bond of a public body under many circumstances, we cannot agree that super-sedeas bond is proper for appellate review of legislative planning-level determinations. Requiring a bond in this situation would clearly chill the right of a governmental body to appeal an adverse trial court decision declaring invalid a legislative act. We distinguished between “operational-level” and “planning-level” governmental functions in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). We find that the distinction also applies in supersedeas bond proceedings under Rule of Appellate Procedure 9.310(b)(2). To rule otherwise would make cities liable for damages resulting from legislative planning-level decisions. This is clearly contrary to existing law. We, thus, construe rule 9.310(b)(2) as allowing trial and appellate courts the discretion to require governmental entities to post supersedeas bonds in suits where the judgment concerns operational-level functions but find that no authority exists to lawfully require such bonds in planning-level governmental functions.

We can conceive no justification for this Court to require the government to pay for judicial review of legislative actions. A contrary decision would prove catastrophic for small municipalities and counties. Even larger governmental entities would be adversely affected. Consider, for example, the situation that was presented in this Court’s recent decision in Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981). The cost of delaying a proposed project with “26,500 dwelling units with an estimated eventual population of 73,500, eleven commercial centers, four marinas, five boat basins, three golf courses, and twenty-eight acres of tennis facilities” would be immense. Id. at 1376. Under respondent’s contention, if the Estuary developers had prevailed in the trial court, Lee County could have been required to post a substantial supersedeas bond. That being the case, the ultimate effect could have deprived Lee County of the ability to appeal. This Court, in turn, would not have had the opportunity to review the decision and establish clear guidelines in an essential area of the law.

It is paramount for governmental bodies to have unrestricted appellate court review of their authority to act in a legislative capacity. Requiring the payment of damages for such review is not justified in other circumstances and cannot be here. The only exception is when no justiciable issue is present and when the record establishes that the governmental body is seeking review in bad faith solely as a delaying tactic. The decision of the Fourth District Court of Appeal is quashed and the cause remanded for further proceedings.

It is so ordered.

BOYD, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., dissents with an opinion in which SUNDBERG, C. J., concurs.

ADKINS, Justice,

dissenting.

Petitioner’s contention that it should not be required to post a supersedeas bond is based on comparison of the present rule with Rule 5.12 of the 1962 Appellate Rules. The latter specifically provided that “the court may on motion for good cause shown require supersedeas bond or other security in such amount, form and manner as it may prescribe as a condition for the further prosecution of the appeal or certiorari.”

Petitioner correctly points out that the present rule, unlike the 1962 rule, does not specifically state that a supersedeas bond can be required. Rather it provides that the trial or appellate court may “impose any lawful conditions or vacate the stay.” It is noted that the next reference to conditions is found in Rule 9.310(c)(2), which describes the conditions of a bond, one of which is a condition to pay damages for delay. Petitioner contends that the furnishing of the bond cannot be a lawful condition under subsection (b)(2) as that term is defined in subsection (c)(2).

In order to avoid any confusion, we should hold that a public body or officer may be required, as a lawful condition, to post a bond for damages for delay in order to secure a stay of a final judgment. We believe that a reading of the entirety of Rule 9.310 leads to this inescapable conclusion. The lawful conditions related in subsection (b)(2) include the requirement of posting a bond in much the same way as the posting of a bond is a condition under subsection (a). That subsection, which establishes the general rule for obtaining a stay pending review, states that: “A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.” Implicit in this statement is the fact that a bond is a condition of the stay. The conditions described in subsection (c)(2) are conditions which are related to the bond, not to the stay.

In addition, there is no valid reason why public bodies should be exempt from the condition of posting a bond under considerations of either statutory law, court rules, or public policy.

These views are not inconsistent with this Court’s decision in State ex rel. Board of Trustees v. District Court of Appeal for Second District, 261 So.2d 818 (Fla.1972), in which we held that the right to an appeal is a constitutional right which cannot be conditioned by the requirement of a bond. That holding is as compelling under the present rules as it was under the old rules.

There is no language in the present rule concerning “good cause” (see Rule 5.12, 1962 Appellate Rules) or any other standard. Petitioner suggests that a supersede-as should be required only in those exceptional cases where an appeal by the public body would wreak economic havoc or irreparable damage on the prevailing party.

Respondent, on the other hand, proposes that we establish a standard similar to that employed in cases involving private litigants. One such case was Holgate v. Jones, 93 Fla. 269, 111 So. 626 (1927), wherein this Court held that the trial judge’s exercise of discretion in setting a supersedeas bond would not be disturbed unless there was fraud or an abuse of judicial discretion causing substantial injury or injustice to the complaining party. Concerning the criteria to be applied by the trial judge, we specifically stated in Carr v. Marion Mortg., 99 Fla. 807, 126 So. 776 (Fla.1930), in reference to the setting of a supersedeas bond where the judgment was in whole or part other than a money judgment, that the court should take into consideration the:

various rights adjudicated by the judgment to be superseded and accruing by reason thereof to the party in whose favor it is, and so shape both the amount and conditions of such bonds as that they will, according to the circumstances of each particular case, fully secure and protect the obligee in all the varied rights accruing to him under his suspended judgment.

Id. 126 So. at 777, (quoting from Palmer v. Palmer, 41 Fla. 184, 187, 26 So. 640, 641 (1899).

I believe that the reasoning in Holgate and Carr is applicable to the instant case. It should be noted that the mere fact that public bodies are to be subjected to a bond requirement does not mean they will be treated in a manner identical with a private party. It may be that the obligee can be fully secure and protected in his varied rights through the mere existence of a solvent public body. The certified question should be answered in the affirmative.

The trial judge, having previously determined the necessity of such a bond after reviewing the file and hearing argument of counsel, conducted a hearing to determine the amount of a bond as a condition for a stay. Respondent presented expert testimony at this time; petitioner declined to offer any testimony. Under the scope of review established in Holgate, we should not hold that the decision of the trial court was such as to mandate a reversal.

The majority holds that a supersedeas bond is improper for appellate review of legislative discretionary/planning level determinations, as it would chill the right of a governmental body to appeal an adverse decision declaring invalid a legislative act. The purpose of requiring a supersedeas bond is to discourage frivolous appeals. See City of Miami v. Murphy, 137 So.2d 825 (Fla.1962). I rely upon the wisdom of the trial court, not only in entering the judgment, but also in determining whether a supersedeas bond should be required. Furthermore, the supersedeas bond requirement may chill the governmental body in making unconstitutional determinations at the legislative planning level. I would approve the decision of the Fourth District Court of Appeal.

SUNDBERG, C. J., concurs.

       Jurisdiction vests under article V, section 3(b)(3), Florida Constitution (1972).


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Howard O. MORRIS, Jr., Respondent.
    No. 60405.
    Supreme Court of Florida.
    June 17, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Richard E. Gentry, St. Augustine, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Howard 0. Morris, Jr., member of The Florida Bar, is before us on petition for review of the report of the referee. The referee’s report and record have been filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.06(9)(b). We have jurisdiction. Art. V, § 15, Fla.Const.

The referee’s findings of fact are as follows:

As to Count I
1. Respondent freely admitted that he had received trust funds to be applied in liquidation of an account owed by a client, a Mrs. Theresa LaPorte; that prior to the time he devoted those funds to the proper account he had gotten out of trust, viz: had spent the moneys and his trust bank account contained an insufficient balance. (T10)
2. Respondent tempers the admission made in Paragraph 1 above by suggesting that the manner in which he kept records relating to his trust account allowed him no opportunity to know the true status of the account.
As to Count II
1. Respondent freely admitted that, without proper authorization, he utilized for his own purposes moneys entrusted to him by clients, his parents, Mr. and Mrs. Howard 0. Morris, Sr.; and that those funds still had not been repaid. (Til)
2. He also admitted that those trust funds were devoted to the personal uses of the Respondent with the full knowledge of the Respondent that he was invading trust funds. (Tll-12)
As to Count III
1. Respondent freely admitted the allegations of Count III to the effect that Respondent did not maintain proper trust accounting records, and he did not furnish minimally required quarterly reconciliations. (T8, 10)

The referee recommended that respondent be found guilty of each count of the complaint. He then recommended that respondent be suspended for a period of six months and thereafter until he shall prove his rehabilitation.

In The Florida Bar v. Breed, 378 So.2d 783 (Fla.1979), we gave notice to the legal profession that we would not be reluctant to disbar an attorney for an offense involving misuse of clients’ funds even though no client is injured.

Our holding in Breed was somewhat tempered by our more recent holding in The Florida Bar v. Pincket, 398 So.2d 802 (Fla.1981). In Pincket we found it appropriate to consider circumstances surrounding the offense in determining the discipline to be imposed. The circumstance of Pincket’s cooperation in the proceedings convinced us that a two-year suspension was an appropriate punishment. Pincket’s wrongdoings were similar to respondent’s in the instant case. Pincket converted nearly $60,000 of his clients’ money to his own use. Like Pincket, respondent admitted that he improperly utilized, for his own purposes, money entrusted to him by clients. Additionally, he voluntarily turned over his books and records to The Florida Bar. Further, restitution to one client was made by respondent, although he did not make restitution to the other client in this matter, his father. (It should be noted that respondent’s father appears to be willing to forgive the indebtedness.)

Finally, the respondent has voluntarily withdrawn from the practice of law.

We find that the discipline recommended by the referee is too lenient in light of the nature of the respondent’s admitted wrongdoing. We feel, however, that under the circumstances, disbarment is too severe a penalty. The appropriate penalty in this case is a two-year suspension.

It is the order of this Court that respondent, Howard O. Morris, Jr., be suspended from the practice of law for a period of two years which shall commence as of the day of this order, and that he may be readmitted only upon proper proof of his rehabilitation. It is further ordered that all costs of these proceedings be charged to the respondent in the amount of $514.04, plus any additional costs incurred as a result of these proceedings.

ADKINS, Acting Chief Justice, and BOYD, OVERTON and McDONALD, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I would accept the recommendation of The Florida Bar. In my opinion, disbarment is the only appropriate discipline in this type case. A lawyer who steals from his trust account is worse than a common thief, and there is no place for such person in The Florida Bar.


text:
    FLORIDA WATER AND UTILITIES COMPANY, Petitioner, v. Phillip A. HUBBART, Chief Judge, et al., Respondents.
    No. 61336.
    Supreme Court of Florida.
    June 17, 1982.
   PEREMPTORY WRIT OF MANDAMUS

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA, TO: PHILLIP A. HUBBART, CHIEF JUDGE, THOMAS H. BARKDULL, JR., NORMAN HENDRY, ALLAN R. SCHWARTZ, JOSEPH NESBITT, NATALIE BASKIN, DANIEL S. PEARSON, WILKIE D. FERGUSON, JR., JAMES JORGENSON, JUDGES OF THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT: GREETINGS:

WHEREAS, the Supreme Court of the State of Florida has directed that the Writ of Mandamus issue against you, this is, therefore, to command that you, Phillip A. Hubbart, Chief Judge, Thomas H. Barkdull, Jr., Norman Hendry, Allan R. Schwartz, Joseph Nesbitt, Natalie Baskin, Daniel S. Pearson, Wilkie D. Ferguson, Jr., James Jorgenson, Judges of the District Court of Appeal of Florida, Third District, withdraw your opinion filed September 28, 1981, on Motion to Recall Mandate and to deny for lack of jurisdiction the Motion to Recall Mandate filed by Respondent in the case styled Diane Leslie, etc. v. Florida Water and Utilities Co., Fla.App., 403 So.2d 1151. State Farm Mutual Automobile Insurance Company v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981).


author: THOMPSON, Judge. THOMPSON, Judge.

text:
    Ada RHANEY, Appellant, v. DOBBS HOUSE, INC./Squibb Corporation and Travelers Insurance Company, Appellees.
    No. AC-319.
    District Court of Appeal of Florida, First District.
    April 5, 1982.
    On Rehearing June 16, 1982.
    Rehearing Denied July 22, 1982.

      Richard A. Sadow of Sadow, Lynne & Gonzalez, North Miami, for appellant.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellees.
   THOMPSON, Judge.

The claimant challenges a workers’ compensation order, contending that the deputy commissioner (deputy) erred in calculating her average weekly wage (AWW) and improperly made a finding as to permanent impairment. Additionally, claimant challenges the constitutionality of Section 440.-15(3)(a)3, Florida Statutes (1979).

The claimant, a cook for Dobbs House at the Miami International Airport, suffered a compensable injury to her right hand on October 21, 1979. In addition to her hourly wage, Dobbs provided claimant with uniforms valued at $1.59 per week. After a 45-day probationary period which ran from the beginning of employment, Dobbs provided its employees with a parking decal which allowed them to park in the airport lot at no charge to the employees. The parking fee, established by the Dade County Aviation Department, was valued at $1.15 per week. Additionally, Dobbs’ employees were provided with a 25 cent meal allowance which permitted them to eat at least $2.00 worth of the posted price of foods in the cafeteria where Dobbs’ employees and airport personnel ate.

The claimant argues that the deputy erred in calculating her AWW because he did not include the value of the uniforms or the value of the parking and because he valued the meals at only 25 cents. We agree.

In calculating claimant’s AWW, the deputy denied inclusion of aprons furnished claimant, reasoning that aprons are not uniforms. However, the deputy made no mention of the includability of the uniforms furnished claimant by Dobbs. Since claimant clearly requested inclusion of the uniforms in her AWW and submitted evidence as to their value, it was error for the deputy to fail to include the value of the uniforms. Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970).

The deputy also did not include the value of the parking in calculating claimant’s AWW. The parking was an economic benefit to claimant and should have been included in her AWW.

Based on the rationale of Bienvenido v. Fontainebleau Hotel, 128 So.2d 1 (Fla.1961), the deputy included the meals in claimant’s AWW at a value of 25 cents each, instead of at the $12.50 weekly value requested by claimant. Under the circumstances, any “agreement” between claimant and Dobbs concerning the 25 cent meal allowance is not binding as far as the calculation of her AWW is concerned. The record indicates that the meals cost Dobbs more than the 25 cent meal allowance. Additionally, there is competent substantial evidence that Dobbs knowingly permitted its employees to regularly eat over $2.00 per meal without charge. Accordingly, the deputy erred in including only 25 cents per meal in claimant’s AWW. The value of the meals should have been determined in accordance with the Internal Revenue Service Regulations test of the fair market value of the meals. See Spencer v. Chai Convalescent Home, Inc., 9 FCR 214 (1975).

The claimant also argues that the deputy’s determination that she did not sustain a permanent impairment was premature and prejudicial to her since she had not yet claimed wage loss or impairment benefits. However, we find that the issue of claimant’s permanent impairment was ripe for adjudication and was therefore properly determined by the deputy. The claimant clearly alleged that she had a 5% to 10% permanent impairment of the hand. Furthermore, claimant elicited medical testimony on the issue of her permanent impairment. Accordingly, the claimant’s argument on this point is without merit.

Claimant’s remaining argument concerns the constitutionality of the requirement found in Section 440.15(3)(a)3, Florida Statutes (1979) that the AMA Guide be used to determine impairment until such time as a permanent schedule is adopted. However, we find that claimant lacks standing to challenge the constitutionality of this section. There is no evidence that claimant is not permanently impaired under the AMA Guide but is permanently impaired under some other standard. Accordingly, claimant has not shown that she has been harmed by this section. Furthermore, claimant failed to elicit testimony from the doctors regarding what standard they used in determining whether claimant was permanently impaired. We therefore do not reach this issue raised by claimant.

In conclusion, that portion of the deputy’s order concerning claimant’s AWW is reversed and remanded for correction of the AWW in conformity with this opinion.

MILLS and WENTWORTH, JJ., concur.

ON PETITION FOR REHEARING

THOMPSON, Judge.

The claimant filed a motion for rehearing concerning her challenge to the constitutionality of § 440.15(3)(a)3., Fla.Stat. (1979) which directed the use of the Guides to the Evaluation of Permanent Impairment, copyright 1977,1971 by the American Medical Association (the AMA Guides) as a temporary schedule for the determination of permanent impairment pending the adoption, by rule, of a permanent schedule. Claimant also asked the court to reconsider the denial of her motion for appellate attorney’s fees. We grant rehearing.

Section 440.15(3)(a)3. provides that “[i]n order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings.” It thereafter adopts the AMA Guides as a temporary schedule and mandates its use for that purpose. There is no question but what the legislature can enact reasonable guides and rules and can delegate authority to the appropriate agency to establish by rule reasonable guides or schedules to assure uniformity throughout the state. The Department of Revenue has long been authorized to establish and promulgate standards of value to be used by tax assessors of all counties of the state in order that there be some uniformity of taxation among the counties. The legislature clearly had the right to delegate to the Division of Workers’ Compensation (the Division) the right to establish a reasonable schedule for the purpose of determining both the existence and degree of permanent impairment and, by the same token, it had the right to establish the AMA Guides as a temporary schedule pending the adoption of a permanent schedule by the Division.

Although the provisions of § 440.-15(3)(a)3. are not unconstitutional per se, they could be unconstitutional in their application if this section were interpreted to mean that there could be no permanent impairment unless a medical doctor testified from the AMA Guides as to a certain percentage of permanent impairment set forth therein. However, the section should not be interpreted in that fashion. If properly interpreted and applied, the section is constitutional.

As there are certain injuries and conditions that result in a permanent impairment which are not contained in the AMA Guides, neither the existence nor percentage of permanent impairment for such injuries or conditions can be obtained from the AMA Guides. Obviously, a claimant should not and cannot suffer the consequences of such omissions in the AMA Guides. Under such circumstances the permanent impairment can be proved by qualified expert testimony based on the training, experience, and expertise of the witness or on other accepted medical guides or schedules prepared by specialist groups or associations such as the Academy of Orthopedic Surgeons. The section under attack does not even require the testimony of a medical doctor using the AMA Guides to establish the existence of some permanent impairment. In certain circumstances, the existence of some permanent impairment based upon medically or scientifically demonstrable findings can be determined by the deputy’s observation of the claimant. If the claimant has lost an arm or a leg for example, he has obviously sustained a permanent impairment which is scientifically demonstrable to the deputy by his own observation. However, all objective or demonstrable findings are clearly not evidence of a permanent impairment. A bruise, a black eye, a swollen sprained ankle, and other swelling are all objective demonstrable findings but are generally, if not always, temporary conditions resulting in no permanent impairment. If the claimant cannot demonstrate some actual permanent impairment that can be observed by the deputy, then lay testimony or observation by the deputy, standing alone, is not sufficient to establish any permanent impairment if the purpose of the language in § 440.15(3)(a)3. is to be given any force and effect. Applied properly, we find § 440.15(3)(a)3. constitutional.

We are disturbed that the Division has apparently ignored the 1979 legislative mandate to prepare a permanent schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings. Since the latest revisions to the AMA Guides specified as those to be used as the temporary schedule were copyrighted in 1971 and 1977, the material therein is five to 10 years old and, in some cases, may even be obsolete. The AMA Guides are also obviously incomplete and do not cover a number of conditions or injuries that result in permanent impairment. The legislature has directed that the Division establish a permanent schedule and the Division should and must obey this mandate. The legislative requirement of a schedule has affected the substantive rights of both employer-carriers and claimants, and they are entitled to a current and complete schedule as directed by the legislature. The Division has made no progress on this matter in approximately three years. The continued use of a temporary, incomplete, and out-of-date schedule could result in the court’s invalidating its use.

Claimant also seeks an award of attorney’s fees for appellate representation. Unfortunately, this court is without authority or jurisdiction to award such fees in the instant case since the accident occurred after the effective date of the 1979 amendments and before the 1980 amendments to § 440.34, Fla.Stat. See Lehigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). We remand without prejudice to any further proceedings consistent with this opinion.

MILLS and WENTWORTH, JJ., concur.