author: BROOM, Justice, PATTERSON, Chief Justice,

text:
    John DOE and A Female Infant v. ATTORNEY W.
    No. 52904.
    Supreme Court of Mississippi.
    March 10, 1982.

      Bob Owens, Denise Sweet, Jackson, for appellants.
    William R. Wright, Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   BROOM, Justice,

for the Court:

Termination of parental rights of the appellant, John Doe, father of a child born out of wedlock, is the chief aspect of this case appealed from the Chancery Court of the First Judicial District of Hinds County, Mississippi. The natural mother consented to an adoption of the child (an infant), but the natural father, appellant Doe, would not agree to the adoption whereupon the appellee, Attorney W., filed a petition to terminate Doe’s right to the infant girl child. Doe answered and by cross-bill sought custody of the child. This (Doe’s) appeal is from the final decree terminating his parental rights. Doe argues that (1) the lower court was manifestly in error in terminating Doe’s parental rights absent presentation of a preponderance of evidence establishing one or more of the grounds for termination of such rights pursuant to Mississippi Code Annotated § 93-15-103 (Supp. 1980); (2) the court erred in finding that Doe had abandoned the unborn child; and (3) the court manifestly erred in finding that Doe was morally unfit. We affirm.

The facts are substantially as follows. By instrument dated June 12, 1980, the child’s natural mother consented to adoption of the child, and she relinquished exclusive custody, care, and control of the child to appellee Attorney W., an attorney in Hinds County, Mississippi representing the couple who seek to adopt the infant. The natural mother met the appellant/natural father Doe in May or June of 1979, when both of them were employed at a restaurant in another state. Doe, a married adult man, was separated from his wife, and in June he and the subject infant girl’s natural mother became sexually intimate and began their affair. Their next sexual encounter was in August 1979, and in October the mother advised appellant Doe that she was pregnant. The child was born June 9, 1980. Other facts will be stated where appropriate in this opinion.

The first question presented is whether the case is controlled by Mississippi Code Annotated § 93-15-1, et seq. (1972) or Mississippi Code Annotated § 93-15-101, et seq. (Supp.1981). We hold that the former statute controls in this case. This suit was filed June 30, 1980, and the latter statute did not become effective until the following day, July 1, 1980. It is obvious from the beginning to the end of the trial as reflected by the record that the court and the parties were trying the lawsuit under the earlier statute rather than the latter statute. With leave of the court, appellee Attorney W. filed his petition to terminate Doe’s parental rights to the child, and in the first paragraph the attorney averred that the proceeding “is brought pursuant to Miss.Code Ann. § 93-15-1, et seq. (1972).”

Doe’s answer admitted the averments of paragraph number 1 of the petition, and nowhere in the pleadings or in the record was there any mention made of the latter statute which became effective after the suit was filed. In his brief, appellant Doe contends that the new or latter statute was controlling but we note that such issue was never raised in the lower court. Appellee, Attorney W., in his petition (paragraph 3) stated that “pursuant to Miss.Code Ann. § 93-15-5, the infant has been made a party....” In paragraph 3 of his answer, appellant Doe admitted this averment. Further in his petition at paragraph 6 the appellee charged that defendant Doe was “unfit to rear and train the child within the meaning of Mississippi Code Annotated § 93-15-1 (1972),” and although Doe denied the averments of this paragraph, he did not charge that another statute was controlling. We have searched the record and find nowhere in it anything indicating that appellant Doe objected to trial under the provisions of the earlier statute. Nothing in the record even hints that the parties were proceeding under the new statute which, as stated above, did not become effective until a date subsequent to the filing of this proceeding. Furthermore, the significant events which transpired and culminated in the action before us occurred before the new statute (§ 93-15-101, et seq.) became effective.

Doe asserts that the lower court erred in deciding the case under a statute that had been repealed, Mississippi Code Annotated § 93-15-1 (1972), rather than under the new code section which became effective July 1, 1980, Mississippi Code Annotated § 93-15-103(3) (Supp.1981). According to Doe, the newer statute repealed the former requiring that the suit proceed pursuant to § 93-15-103 (Supp.1981). Reliance is based upon several cases, one of which is Belew v. Jones, 56 Miss. 342 (1879). That ease was a suit for partition of land involving the question of unity of title and is not controlling on the issue presently before us. Travelers Indemnity Co. v. Munro Oil and Paint Co., 364 So.2d 667 (Miss.1978), which involved the surety bond of a public contractor who failed to make publication as required by Mississippi Code Annotated § 31-5-13 (1972), is also cited by Doe. There the statute had been in force and effect for many years and required publication which, of course, in such a matter is a jurisdictional issue and cannot be waived. Such is not the case here and this suit does not present a question of whether the lower court had jurisdiction of the issue. The cases cited above, including Musgrove v. Vicksburg & Nashville R.R., 50 Miss. 677 (1874) which some of the cases discuss, and the other cases relied upon by Doe are so dissimilar to the present case as to be not controlling.

French v. State ex rel Felding, 53 Miss. 651 (1876) has similarities but is quite distinguishable. Significantly, in the present case the new statute contains language similar to that of the prior statute — the new statute effectively recodified and redefined “grounds for termination of parental rights” and although the stated grounds had certain changes in them, they still embody to a large extent the concept contained in the original § 93-15-1 (1972). Also of significance here is the fact that there was .no time gap or hiatus between the lapsing of the prior statute and the effective date of the latter statute.

In the instant case, when the ease in chief was rested, Doe moved to dismiss on the ground “they have not put forth a prima facie case of unfitness.” No mention was made of any statutory change in the grounds for termination. Nowhere in the pleadings did he demur to the petition against him, although he moved for a bill of particulars which was furnished. At the beginning of the trial, which was stated to be under § 93 -15-1, supra, Doe’s counsel specifically stated “we have no objection” after the attorney for the other side stated into the record that the suit was based on abandonment and on the father being “morally” and “otherwise unfit” as a parent. Upon the peculiar posture and facts of this case, we think the better reasoning is to apply the rationale of City of Belzoni v. State ex rel. Rice, 186 Miss. 623, 191 So. 657 (1939) and State Tax Commission v. Mississippi Power Co., 172 Miss. 659, 160 So. 907 (1935). Here, in effect, the new statute carried forward the concept of the prior statute and amounted to a revision of the statutes on termination of parental rights. Accordingly, trial under the law and facts as they existed when the suit was filed is not reversible error.

Not only was the evidence sufficient to support the chancellor’s decree finding the father unfit to have custody of the child, such evidence also was sufficient to support the decree under the legislation which became effective July 1, 1980, that is, Mississippi Code Annotated § 93-15-103(3). Under, the latter statute, in subsection (d) of section (3) termination of the parental rights may be ordered when

(d) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody.

The facts of this case cannot help but establish ongoing behavior of Doe rendering it impossible to allow him to take “care and custody” of the baby. This is true because the evidence establishes that he cannot legitimize the baby’s status. It establishes a course of conduct on his part making it almost unthinkable that any court could in good conscience turn over custody of the baby to one who, like Doe here, disavowed his marital vows, lived awhile with a teenaged girl, impregnated her, and then deserted her when she (and the baby) needed him most. Had they relied upon him for sustenance, they both would have perished. Thus, even if the case were governed (though it isn’t) by the new statute, the decree appealed from is sufficiently supported by the evidence and affirmance is required.

Our recently decided case of Reyer v. Harrison County Department of Public Welfare, 404 So.2d 1023 (Miss.1981) involved termination of parental rights of legitimately married natural parents and was tried under the former statute, § 93-15-1, supra. In an opinion written by Justice Sugg in Reyer, we reversed the lower court’s decree because of inadequacies of the proof. The question as to which statute would apply was not squarely before us and was not addressed in Reyer. Similarly, another recent case, Millien v. State, 408 So.2d 71 (Miss.1981), involved termination of parental rights but the present issue was not decided. As previously held, our view is that when a statute is repealed by a new statute which substantially reenacts provisions of the prior statute (which is true in the present case) simultaneously with the repeal, the operation of the original statute is not interrupted by the repeal as to an action which was filed and pending before the effective date of the new legislation. City of Belzoni v. State ex rel. Rice, supra; State Tax Commission v. Mississippi Power Co., supra. Therefore, we reject the assertion made by Doe in his brief that the 1980 legislation — § 93-15-101, et seq. (Supp. 1981) — is controlling.

Next the biological father Doe contends that the lower court was “manifestly wrong in finding that ... [Doe] had abandoned the unborn child... . ” Both litigants agree upon the proposition that the law in this state is that abandonment of a child is such conduct as evinces a settled purpose of a parent to forego all parental duties, and to relinquish all parental claims to the child. They both cite Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713 (1953). We reversed in Reyer v. Harrison County Department of Public Welfare, supra, because “the proof does not rise to the level that would justify terminating the parental rights under § 93-15-1.” In the present case, we think the evidence was sufficient. The evidence here establishes that in November, 1979, Doe and the natural mother began to occupy the same apartment and he paid the bills, car payments, and furnished money for her clothing. At first, appellant Doe seemed to be pleased about the prospects of their having a baby and he asked her to marry him and raise the baby. However, along about the latter part of December, he began to stay out late at night and would frequently return drunk. When the natural mother discussed marriage with him, he refused and on one occasion expressed a desire that she have her pregnancy aborted. Subsequently, it was his suggestion that she place the child for adoption and about the latter part of February he advised her that he was not ready for the responsibility of her and the baby and he asked her to leave the apartment. She was interested in marriage and was not at first willing to have the baby aborted or adopted, but in the month of March she moved into a trailer and during the next two weeks, he and she discussed adoption procedures. He expressed to her his feeling that adoption was a good idea, and that she could decide for herself and do what was best for her and the baby.

Seeking financial aid for medical expenses related to her pregnancy, the natural mother visited the County Welfare Office and then advised Doe that she was required to give the name of the father of the child. He objected to this because it might require him to contribute money to the Welfare Department in support of her and the baby. She then moved to Mississippi to have the baby and arrange for the adoption. Appellant Doe advised her he would help with expenses, but he only gave her twenty dollars and by his own admission made no financial contributions toward her prenatal care. On May 15, 1980, Doe was called by the appellee Attorney W. of the bar of Mississippi, and informed that arrangements were being made for the adoption of the baby in Mississippi. Doe was told by the attorney that consent papers would be forwarded to him authorizing the adoption and surrendering Doe’s parental rights, which was agreed to by Doe. After the infant, a girl, was born on June 9, 1980, Attorney W. again telephoned Doe and advised him of the birth and requested that Doe sign the adoption papers which had been forwarded to Doe. For the first time, during that telephone conversation, Doe expressed his desire to have custody of the baby. The natural mother on June 12, 1980, turned custody of the baby over to the appellee, Attorney W., and executed consent documents to Attorney W., who put the baby into the hands of the couple who desired to adopt the child. Attorney W. petitioned the chancery court on June 30, 1980, to terminate Doe’s parental rights to the child averring that Doe had totally abandoned and deserted the child and was mentally, morally, and otherwise unfit to rear and train her. On July 3, 1980, a guardian ad litem was appointed for the child. Responding to the petition of Attorney W., appellant Doe filed an answer together with a cross-bill by which he sought custody of the minor child.

The evidence as summarized above (and accepted by the lower court) establishes that:

(1) Doe, after the natural mother’s pregnancy was known to him, suggested to her that she have an abortion;
(2) he refused to contribute to the expense of her prenatal care;
(3) he demanded that she not use his name in applying for welfare assistance;
(4) his relationship with her ceased because he did not want the responsibility for both her and the child;
(5) he told her that the decision regarding the child’s destiny was hers alone and that she could do whatever she wanted with the child; and
(6) a month prior to the baby’s birth, he advised appellee that he would surrender the child for adoption and had no objection to the baby’s being offered for adoption.

Doe allowed the natural mother to bear all the physical, mental and financial burdens of pregnancy and childbirth without at any time assisting her financially. At this time, according to the record, he has not offered her any aid for the child. Upon such a record, we cannot hold that the lower court erred in finding that Doe’s parental rights to the child were terminated in part on the ground of abandonment of the child.

Another argument asserted on Doe’s appeal is that the lower court manifestly erred in finding that Doe was “morally unfit.” We find no merit to this contention and point out that in a number of cases we have held that a parent who is guilty of infidelity is not entitled to child custody. Anderson v. Watkins, 208 So.2d 573 (Miss. 1968). In the instant case, the evidence is clear that Doe (a married man) was obviously living in an open, adulterous relationship with the natural mother, a teen-aged girl. We have also held that in divorce cases wherein the woman is shown to be guilty of adultery, she is not entitled to child custody. Winfield v. Winfield, 203 Miss. 391, 35 So.2d 443 (1948). Cases relied upon by the appellant in support of his argument that his living in open adultery with the natural mother did not render him morally unfit as a parent are not controlling because of factual differences. Adultery is but one of the factors to be considered when determining custody of a child.

It is unavailing that Doe’s mother and sister are willing to take care of the child if he were not able to do so. His sister testified that she was willing to adopt the child and she testified

I don’t want this baby so badly that I would take it away from my brother. If the Court saw that my brother could not have the baby, then I would want it. You know, then that would be my ultimate goal.

Even though Doe’s relatives in another state might be willing to assume custody of the baby, a primary issue is Doe’s fitness, and the finding that he was in fact morally unfit as a parent was supported by the testimony. Clear and convincing is the testimony of his moral unfitness. The record shows that appellant Doe was a married man living in open adultery with a teenaged girl who gave birth to the baby whose custody and destiny are at stake here. Having fathered her child, and having the status of a married man, he is not in a position to legitimize the baby as adopting parents may do. Our holding is that the chancellor’s finding of the moral unfitness of Doe was entirely appropriate upon the evidence presented. For us to hold otherwise would be the equivalent of our sanctioning parental rights in a married man who has a brief sexual relationship with an unmarried woman for no other purpose than lustful pleasure, and for neither love nor the establishment of an appropriate and loving family relationship.

We find no reversible error in the appeal presented to us.

AFFIRMED.

SMITH and SUGG, P. JJ.; and WALKER, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PATTERSON, C. J., specially concurs.

PATTERSON, Chief Justice,

specially concurring:

I concur in the result reached by the court in this case. I do so because of the factual circumstances.

      . Pursuant to Mississippi Code Annotated §§ 93-17-25, 93-17-29, and 93-17-31 (1972), the names of all litigants in an adoption proceeding are kept confidential. Therefore, they are identified either by fictitious names or initials. This cause is not an adoption per se but has aspects of such a case.

      . Although not in issue, it is conceded by Attorney W. in his brief that unwed fathers have certain “constitutionally protected” relationships to children including due process requirements as to notice, etc. Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).


source: Caselaw Access Project

author: BOWLING, Justice,

license: Public Domain

text:
    James Odell McLAMB v. STATE of Mississippi.
    No. 53293.
    Supreme Court of Mississippi.
    March 10, 1982.
    David E. Holderfield, Stanfield, Holder-field & Hall, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROY NOBLE LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Coahoma County for the crime of armed robbery. The indictment charged him to be an habitual criminal under Section 99-19-83, Mississippi Code Annotated (Supp.1981). After a sentencing hearing, the trial court sentenced appellant to life imprisonment as an habitual criminal. Two principal errors are propounded. They are:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING THE IN-COURT IDENTIFICATION OF THE DEFENDANT BY THE WITNESSES FOR THE STATE.
II. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT WITHOUT NOTICE TO THE DEFENDANT AT THE SENTENCING HEARING.

At the trial five witnesses identified the defendant as one of the two men who entered the Kroger store in Clarksdale on November 1, 1980, at about 10:35 p. m. According to the witnesses, appellant walked down an aisle of the store while the other person went to the office located near the checkout counters. There he exhibited a pistol through the window of the office and demanded money. At about this time, the other man, identified as appellant, pulled a gun and ordered the store employees and customers to get on the floor. Neither man was disguised. In addition to the persons in the store, a police officer in a patrol car stopped in front of the store, after previously having been called to come and accompany the store employee who was carrying the money to the bank. This officer was stopped in his car when the two men came from the store and walked in front of the car. The officer was able to see the men clearly and positively identified the appellant. After the appellant and his accomplice started away the policeman became suspicious and started after them. The two men ran from the scene. Later the same policeman was in the area of an automobile agency when movement was discovered in an abandoned car. This movement developed to be the appellant, who was taken from the car and a search of him revealed a pair of handcuffs, some money and a .38 caliber revolver cartridge. A search of the abandoned car revealed a .38 caliber revolver that was muddy and dirty, as was appellant. The police officer was able to identify not only the features of appellant, but the clothing he was wearing when he crossed immediately in front of the stopped patrol car at the front of the Kroger entrance.

Four employees of the store testified about appellant producing the pistol and ordering them to lie down. All these employees were within a very short distance of appellant and identified him positively at the trial as one of the persons committing the robbery.

Appellant contends that it was reversible error for one of the policemen to show employees a photograph of appellant a couple of days after the robbery. The authorities on this contention are clear. The test was set out by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), where it was stated:

We turn, then to the central question, whether under the “totality, of the circumstances” the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

This Court in the recent case of Miller v. State, 399 So.2d 1338 (Miss.1981), discussed Neil, supra, under a factual situation that appeared to be weaker on the “totality of circumstances” to be considered. In the present case, there were five unmistakeable in-court identifications by persons who were within inches or feet of appellant and their identification of appellant could not be stronger. There is nothing in any of the testimony to indicate any prejudice or undue influence as a result of the officer’s showing some of them appellant’s photograph after the robbery occurred.

There is no merit to Assignment of Error No. 1.

Appellant alleges that the lower court committed reversible error by permitting the state to amend the indictment pri- or to starting the sentencing hearing after the jury’s verdict of guilty.

Investigation had revealed that appellant lived in the State of North Carolina. He had previously been convicted of at least two felonies in that state, both of which resulted in his serving more than one year on each conviction. The dates of those convictions were set out erroneously in the indictment. A week prior to the trial, the state informed appellant’s attorneys of the error and a request would be made to amend the indictment to show the true dates.

Proper instruments were introduced at the sentencing hearing that clearly showed all dates of appellant’s North Carolina felony convictions and the time served. Appellant makes no complaint of what the true facts were. He made no showing whatever that the erroneous dates set out in the indictment prejudiced him in any way. This Court refused to reverse because of an amended indictment where the variance was “not material to the merits of the case and if the defendant cannot be prejudiced thereby in his defense on the merits.” Jones v. State, 279 So.2d 650 (Miss.1973).

There is no merit to either of the assignments of error.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


author: BROOM, Justice,

text:
    JOHNSON LIMITED, INC. v. Becky SIGNA.
    No. 53335.
    Supreme Court of Mississippi.
    March 10, 1982.
    Paul Kelly Loyacono, Loyacono & Price, Vicksburg, for appellant.
    G. Gilmore Martin, Vicksburg, for appel-lee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Conversion of her furniture which was left in her apartment when vacating it was alleged by the plaintiff/appellee Becky Sig-na in her suit filed in the County Court of Warren County. There a jury awarded her $500 actual and $4,500 punitive damages after which the appellant Johnson Limited filed notice of appeal to the circuit court. Johnson Limited is the owner of the apartment unit. On April 13,1981, appellee Sig-na moved to dismiss the appeal claiming that appellant had failed to prosecute it within sixty days pursuant to Rule 4.03 of the Uniform Circuit Court Rules (1979). Circuit Judge John Prewitt heard the motion to dismiss, at which hearing (according to the record) no justification or excuse was shown by appellant for his failure to prosecute the appeal within sixty days. The circuit judge agreed that the rule was discretionary, but ordered the appeal dismissed because the appellant presented no reasons or excuses for its tardiness. We affirm.

The appellant then appealed to this Court filing a wide-ranging assignment of errors, and Signa filed a motion to strike all assignments except those dealing with the circuit judge’s order dismissing the appeal. On October 31, 1981, this Court upheld Sig-na’s motion to strike. In his rebuttal brief appellant admits that no brief or assignment of error was filed with the circuit court within the time required by the rule. We affirm.

The record is devoid of any of the testimony presented to the circuit judge on the reasons for appellant’s failure to file the assignment of error and brief. In her brief appellee states that the reasons were included in arguments off the record. In its statement of the case, the appellant says the brief and assignment of error were not filed “due to the financial inability of Appellant to continue to pay legal costs at that time.... ” Of course, it was the duty of the appellant to bring matters not in the record before this Court by way of a bill of exceptions or otherwise if such matters are to be considered by us.

Rule 4.03 states that an appeal “may” be dismissed if no action is taken within sixty days. The mandatory “shall ” is not used, and it follows that the dismissal rule is discretionary in view of the rule’s plain language. However, in the instant case, this Court has been given no evidence of valid reasons and excuses for the appellant’s failure to follow appellate procedures. With the record in such a condition we cannot hold that the circuit judge abused his discretion in dismissing the appeal. The circuit judge stated he found no reasonable excuse for the failure to file the documents, and the appellant has not offered this Court any record which would show that the judge was incorrect in his decision. Therefore, this argument is without merit.

Secondly, it is argued that the circuit judge erred in assessing statutory damages of 15% against appellant for failure to prosecute its appeal. The appellant argues that Mississippi Code Annotated § 11-3-23 (Supp.1981), which the circuit judge cited in assessing the damages, applies only to practice before the Supreme Court and not before appeals to the circuit court.

Excel Saw and Tool Co. v. Micor Corp., 265 So.2d 926 (Miss.1972) addressed this issue, and stated that circuit courts are given the power to assess statutory damages in cases appealed from the county court. We stated that this conclusion must be reached because of § 1616 of the Mississippi Code of 1942 (now Mississippi Code Annotated § 11-51-79 (1972)), which statute allows for appeals from the county court, and states, “[i]f no prejudicial error be found, the matter shall be affirmed and judgment or decree entered in the same manner and against the like parties and with like penalties as is provided in affirmances in the supreme court." (Emphasis added). Thus, reading that section in conjunction with the section allowing the Supreme Court to assess penalties, Mississippi Code Annotated § 11-3-23, circuit courts sitting as appellate courts may assess such damages. Excel Saw and Tool Co., supra.

The circuit judge in the instant case accordingly was correct in assessing damages at 15% for the appellant’s failure to prosecute its appeal. Under Mississippi Code Annotated § 11-3-23 (Supp.1981), 15% is the rate of damages to be assessed by the Supreme Court if a decree is affirmed or there has been a failure to prosecute an appeal. No reversible error appears in the record, and accordingly affirmance is required.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


author: DAN M. LEE, Justice,

text:
    KELLY BROTHERS CONTRACTORS, INC., Employer, and Travelers Insurance Company, Carrier, v. Dependents of Gentle WINDHAM, Deceased.
    No. 53064.
    Supreme Court of Mississippi.
    March 17, 1982.
    Gibbes, Graves, Mullins, Bullock & Ferris, Brooke Ferris, Laurel, for appellant.
    William B. Sullivan, Laurel, Peter K. Smith, Quitman, for appellees.
    Before WALKER, ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Clarke County, Mississippi, affirming an award of death benefits under the Mississippi Workmen’s Compensation Act, payable to the dependents of Gentle Windham, deceased. Windham was injured in a job-related accident on June 29, 1977, while employed as a truck driver by Kelly Brothers Contractors, Inc. when the truck that he was driving turned over and injured his head. He received benefits as the result of his injury, but died before reaching maximum medical recovery.

The administrative judge found the evidence insufficient to establish a causal connection between the June 29, 1977, injury and Windham’s death. The full commission reversed, finding Windham’s death accidental and compensable because the medication taken by him was prescribed for relief of the symptoms caused by his industrial injury. The full commission’s finding was appealed to the circuit court and Kelly Brothers Contractors, Inc. and Travelers Insurance Company appeal from the circuit court’s order affirming the commission’s findings. We affirm.

Appellant assigns the following as error:

1. The intentional and negligent act of the decedent constituted an independent intervening cause of death, barring recovery.
2. The legal principle relied upon by the lower court, and the commission, has no application in this case, and is not controlling.
3. The hypothetical question propounded to the psychiatrist was improper and the medical evidence was insufficient to establish a causal relationship between decedent’s injury and his death.

On June 29, 1977, Windham, an employee of Kelly Brothers Contractors, Inc., overturned a truck while attempting to unload dirt therefrom. Following the accident, he was treated by Dr. Charles Bush of Waynesboro, Mississippi; however, Dr. Bush referred him to Dr. Loren Flecken-stein, a specialist in neurological surgery.

Windham’s history revealed severe generalized headaches following the accident. He denied being knocked unconscious but related he could not hear out of his right ear and experienced numbness in his right arm. The accident also loosened his teeth. He exhibited anxieties about his state of health that were inordinate for the normal individual, appearing overly worried about minor symptoms. Dr. Fleckenstein again saw Windham on August 8, 1977, at which time he continued to complain of headaches and nervousness. He still exhibited anxiety and also hyper-reacted to stimuli on examination and blacked out on three or more occasions. On September 9, 1977, his headaches had improved, but he still complained of nervousness, so Dr. Fleckenstein referred him to Dr. William H. C. Dudley, a psychiatrist.

Dr. Dudley examined Windham on October 17, 1977, observing he was extremely depressed and anxious. Dr. Dudley attributed Windham’s depression to the June 29, 1977, accident. Etrafon, a combination tranquilizer and antidepressant, was prescribed and Windham was scheduled to return in two weeks. When he returned, he looked better and reported dramatic improvement. His medication was changed from four times daily to four tablets at bedtime to correct irregular sleeping habits. He failed to return to Dr. Dudley at his next scheduled appointment.

Dr. Fleckenstein examined Windham for the last time on November 28, 1977, and Windham related he felt all right and was ready to return to work, which never occurred because he passed away under bizarre circumstances on December 7, 1977. Dr. Fleckenstein never prescribed any medication for Windham due to his limited mental capacities regarding understanding of instructions.

Windham’s wife and daughter asserted he changed following the June 29, 1977, accident, relating that following the accident, he blacked out on occasions, spent less time with his family, worried about paying the bills and providing for his family, and also beat his daughter on one occasion.

On December 7, 1977, Windham and his wife stayed together until about 3:15 p. m. He then accompanied T. B. Webb, John Arrington and Willie McGill to take John Arrington home. Windham, Webb and McGill then purchased a half pint of liquor and went to McGill’s house for a friendly game of poker. Windham and Webb left at some point and went to Windham’s sister’s house to borrow some money, then returned to the game. When the liquor was gone and the game over, Webb took Windham by his sister’s house once again. Apparently Windham was the big winner at the poker game. T. B. Webb then carried him home. No one asserted that Windham was drunk on this occasion.

Windham arrived home about 11:00 p. m., asked for something to eat and then went into the bedroom. When his wife walked into the bedroom, she saw him with a handful of pills and she told him to take only four, whereupon he threw the pills in his mouth and drank some water. He then tried to take some more pills; however, his wife successfully removed them from his hand. They began walking Windham and attempted to induce vomiting. However, he lost consciousness and subsequently died. Mrs. Windham asserted the pills he had taken were those prescribed by Dr. Dudley. He was forty-four years old at the time of his death.

The first assignment of error is: Was Windham’s death the result of an intentional and negligent act which constituted an independent intervening cause of death, barring recovery?

In Medart Division of Jackes-Evans Manufacturing v. Adams, 344 So.2d 141 (Miss. 1977), this Court stated:

The general rule concerning an independent intervening injury is stated in 1 Larson’s Workmen’s Compensation § 13.-00 at 3-279, as follows:
“When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.” (344 So.2d at 143) (emphasis added.)

The Mississippi Workmen’s Compensation Act specifically excludes compensation where intoxication or willful intention of the employee to injure or kill himself is the proximate cause of the injury. Miss.Code Ann. § 71-3-7 (1972). In the present case, intoxication was not pled as an affirmative defense nor did the proof establish that Windham was intoxicated although he had been drinking.

In determining whether or not such conduct is an independent cause, this Court adopted the quasi-course of employment rule in Burnley Shirt Corporation v. Simmons, 204 So.2d 451 (Miss.1967), wherein it is stated:

In 1 Larson, Workmen’s Compensation Law section 13.11, it is stated that whether or not the claimant’s subsequent conduct is an independent intervening cause cannot be determined by reference to conventional causation principles alone; but rather the test must include a combination of “course” and “arising out of” elements. Larson comments as follows:
“Since, in the strict sense, none of the consequential injuries we are concerned with are in the course of employment, it becomes necessary to contrive a new concept, which we may for convenience call ‘quasi-course of employment.’ By this expression is meant activities undertaken by the employee following upon his injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the com-pensable injury. Id. at 192.67-68.”
It is apparent according to Professor Larson that an injury following the initial compensable injury which does not arise out of a quasi-course activity is not compensable. It is apparent, therefore, that the sacro-iliac pain which appellee experienced was not connected with the primary or subject injury and is outside the quasi-course activity test. The attorney referee found, with the Commission’s concurrence, that there was no connection between the back injury and the initial electrical shock and its consequences. In 6 Schneider, Workmen’s Compensation Text section 1543(f) (1948) is found the following statement which has application here:
“To create liability, the disability suffered must be the consequence of a continuous chain of causation so connected that the act or force complained of is carried through from the employment to the accident to the injury and to the disability. If an intervening independent agency breaks the chain of causation so as to destroy the original force, the employer is relieved from injuries following the termination of the force which the employment set in motion.
* * * It makes no difference how long the chain nor how many links, as long as each act or link accounts for the next, the liability existing in the first injury is carried forward to the last. But if an independent agency intervenes at any point to terminate the effect of the original accident, that ends the liability of the employer for any injuries occurring thereafter. Id. at 53-54 (footnotes omitted).” (204 So.2d at 454) (emphasis added.)

In the present case, there is no dispute that Windham suffered a compensable injury June 29,1977, and subsequently died before being released by his doctors to resume employment. If his death, evidently caused by an overdose of medication combined with alcohol consumption, resulted from a mental disturbance which resulted from his June 29,1977, injury, compensation must be awarded.

The medical testimony was given by Dr. William H. C. Dudley who opened as follows:

A. Basically, I don’t guess I have an opinion. And this is no reflection — but I do have an opinion. Based on the various differences described in the testimony between the man before the accident and after the accident, and based on the way he looked when I saw him, and the book theory behind him, and Dr. Fleckenstein’s examining him, I believe that the accident set into motion a rather severe depression and anxiety and that this — a much contributing situation to which he took, apparently, some degree of over-dosage of medication while he was drinking and it’s my opinion that his death occurring in that setting was a result of a combined toxicity of the alcohol and the medication, (emphasis added.)

On cross-examination, Dr. Dudley seemed to base his opinion mainly on the fact that Windham behaved differently following the accident.

A. No, it wouldn’t because — well, the fact is apparently everybody agreed the man is dead and the testimony is that he came in while drinking, or under the influence of alcohol to some extent, and took a handful of pills and shortly thereafter collapsed and shortly thereafter died. And I am fully aware that I can’t base an opinion on the thing that I would like to base it on. I don’t think anybody else can. I’d really rather not be here because it’s a difficult case for me. But, taking those things into consideration, even if it weren’t Etrafon, to me it is reasonable to believe that this handful of pills when he was drinking was the most likely cause of his death. And that kind of behavior — most likely the cause of that was the accident because he didn’t seem to be behaving like that before then. And there are any number of medications whose toxicity is propitiated by alcohol and vice versa, (emphasis added.)

This being the case, the relevant issue was whether Windham’s death came within the quasi-course of employment disability as announced in Burnley Shirt Corporation, supra, or was his death caused by an intervening independent agency. The full commission found that it was compensable and they are the determiners of fact and we are bound thereby if there is sufficient evidence to support the finding. It is significant to note that while it was the burden of proof of the appellant here to establish an independent intervening cause, the only medical evidence offered is that of Dr. Fleckenstein who stated as follows:

Q. And I take it that on the day of his last visit to you, that he was aware of his surroundings and fully capable of knowing and realizing what he was doing?
A. Yes, it would appear to me that he was physically and mentally capable of returning to work but he did exhibit behavior that made me feel like he should continue under the care of a psychiatrist.
Q. Now, as I understand it, you do not know the cause of death, and you are not expressing any opinion as to the cause of death?
A. No, sir I do not. I have no information regarding this man’s cause of death.
Q. O.K. I also understand that you are not making, expressing any opinion as to any causal connection between the injury that you treated him for and any mental condition that he may or may not have had.
A. Only in my opinion that the accident could possibly have exacerbated his anxieties.
Q. Possibly could have?
A. Right.
Q. What you are expressing there is a possibility rather than a probability?
A. Right. I think that would be another question that would be best referred to Dr. Dudley.

Thus, it is seen that appellant’s assignment of error No. 2, “did the commission rely upon an erroneous legal principle in awarding death benefits” is answered in the negative.

The next assignment of error, was the hypothetical question propounded to Dr. Dudley improper? Without quoting the hypothetical, which indeed would take many pages and may have assumed one or two facts not in evidence, the rules of evidence are relaxed in workmen’s compensation proceedings. This Court has spoken on the question in Goasa & Son v. Goasa, 208 So.2d 575 (Miss.1968), as follows:

We are of the opinion this assignment of error is not well taken as the rules of evidence for the Workmen’s Compensation Commission, a fact-finding agency, are not the same as that prescribed for ordinary civil actions. Much latitude is authorized the commission by way of informal conferences and hearings and permits the commission to make investigations, cause examinations to be made, and to take such further action as it considers proper to protect the rights of all the parties, as in Wells-Lamont Corp. v. Watkins, 247 Miss. 379, 386, 151 So.2d 600, 603 (1963), we stated:
“The Workmen’s Compensation Commission is a fact-finding agency, organized for the purpose of determining claims for compensation. The procedure before the Commission is not that prescribed for ordinary civil actions, brought in a regular trial court. Sec. 6998-24, Miss.Code 1942, prescribes the method of procedure and authorizes the ‘informal conferences and hearings in contested cases’ and authorizes the procedure to be ‘determined by rules of the commission.’ Sec. 6998-19 permits the Commission to ‘make such investigations, cause such medical examinations to be made, or hold such hearings, and take such further action as it considers will properly protect the rights of all parties.’ ” (208 So.2d at 578). (emphasis added.)

In conclusion, the Court feels that the medical evidence offered was somewhat strained due to the particular circumstances of this death and the failure to obtain medical help in the middle of the night or medical examination after the death to determine the exact cause of death. Nevertheless, the medical evidence offered did establish the chain of events that supports the finding of the full commission, while, on the other hand, there is no competent evidence in the record to break the chain of events to support the contention of the appellant that Windham’s untimely death was the result of an independent intervening cause. Me-dart Div. of Jackes-Evans Mfg., supra. Therefore, this case should be and the same is hereby affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ„ and WALKER, BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    Thomas W. RANKIN v. Oline P. Rankin BOBO.
    No. 52986.
    Supreme Court of Mississippi.
    March 17, 1982.

      David O. Butts, Tupelo, for appellant.
    Floyd & Bingham, James B. Floyd, Tupe-lo, for appellee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

This case arises from the Chancery Court of Lee County, wherein Mrs. Oline P. Rankin Bobo was awarded an increase in child support payments from $125 per month to $250 per month. Aggrieved, Mrs. Bobo’s former husband, Thomas W. Rankin, appeals.

The parties were divorced on April 16, 1975, with the custody of Kristy Rankin, their daughter, being awarded to the mother. The father was ordered to pay $125 per month for the support of his daughter who was then twelve years of age. Thereafter the appellant moved to Kentucky and married his present wife who has two minor children from a previous marriage. The daughter, Kristy, has seen her father only three or four times since the divorce in 1975 and not at all during the last two years. She has made several trips to Kentucky to visit her father, has sent him cards and gifts and testified that she would like to have a closer relationship with him. Mr. Rankin has never visited with Kristy in her home in Tupelo even though he had rights of visitation and has made several trips to the Tupelo area each year since the divorce.

He testified that Kristy only visited or called him when she wanted money and had never expressed any respect, love or appreciation for him since the divorce. His reason for not visiting Kristy in her home was that he had been threatened with bodily harm by Mr. and Mrs. Bobo if he appeared at their home. This charge was denied by both Mrs. Bobo and Kristy. In any event he never sought to enforce his visitation rights with Kristy. Mr. Rankin denied that he was financially able to share in Kristy’s educational expenses even though his gross income had increased from $7,300.87 in 1975 to an expected $20,000 in 1980. Mrs. Bobo testified that her living expenses had increased considerably and that her income for 1979 was only $6,245.

This controversy arose over the expense of a college education for Kristy who was seventeen years of age at the time of the hearing in September 1980. She had graduated from Tupelo High School in May 1980 with special distinction and thereafter entered the University of Mississippi in September 1980. It was stipulated that Kristy is very qualified and well suited for a college education.

The Court decreed that the award to Kristy be increased to $250 per month with payments to be made directly to her so long as she remains a full time student with satisfactory grades. The award was to continue until Kristy obtained her baccalaureate degree.

It is settled that a chancery court may adjudge that one or both parents provide the means for a college education for their children. Pass v. Pass, 238 Miss. 449, 118 So.2d 769 (1960). When the father’s financial ability is ample to provide a college education and the child shows an aptitude for such, the court may in its discretion, after hearing, require the father to provide such education. The parental duty to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances of each case. Hambrick v. Prestwood, 382 So.2d 474 (Miss. 1980).

Mr. Rankin contends that the present facts are so similar to those in Hambrick, that he is lawfully entitled to be relieved of the financial responsibility of contributing in the increased amount toward his daughter’s college education, although he readily admits his daughter is well qualified for such education. Kristy maintained a 3.8 grade average in high school and was a participant in the Anchor Club, the Math Club, the French Club, and the National Honor Society. She was also able to work part time after school and earn a portion of her spending money. The appellant contends his daughter’s attitude and relationship to him has made her unworthy of further support for her college education.

In Hambrick, the minor child had no contact with her father for seven years, expressed an enmity, almost hate for him, and would not agree to visit her father under any circumstances. She expressed absolutely no love, affection, appreciation, or consideration for him. In Hambrick, this Court qualified the general rule set out in Pass, by stating:

The duty of a father to send a child to college, under the circumstances of this case, is not absolute. It is dependent, not only on the child’s aptitude and qualifications for college, but on whether the child’s behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through respect for their parents, love, affection and appreciation of parental efforts, none of which are present in this instance. 382 So.2d at 477.

The record in Hambriek was replete with evidence of the lack of a congenial relationship between the father and the daughter. However, these elements were not established in the present case. Here the daughter expressed a desire to keep in touch with her father and made several efforts to do so. Under the evidence presented, the daughter made a greater effort toward a natural father-daughter relationship of love and respect than did her father. In our opinion, Hambriek is not controlling.

Mr. Rankin next contends that the increase in child support is excessive, unjust, and inequitable. Although his income has increased from $7,300.87 in 1975 to an expected $20,000.00 in 1980, Mr. Rankin asserted his present expenses exceed his income. He admits netting approximately $1600 per month with an additional $320 to $340 per month in expenses he receives in connection with his position as a rural mail carrier. Although it could not be considered income of the appellant, we do note that his present wife’s two dependent children receive about $700 per month in social security benefits which to that extent would relieve him of that financial responsibility. This leaves his family approximately $2,620 per month for their needs. Mr. Rankin contends, however, that the increase in child support includes not only the additional funds directly attributable to the cost of education but also unnecessary expenses for sorority and dormitory fees. We are of the opinion that a child, if the father is financially able, is entitled to attend college in accord with her family standards. In Wray v. Langston, 380 So.2d 1262 (Miss. 1980), this Court enlarged somewhat the holding in Pass. We held:

The duty of a parent to provide a college education for his or her child contemplates support in addition to tuition and college costs, without which, provision for the college education would be in vain. 380 So.2d at 1264.

In sum, there is simply no evidence to support the appellant’s contention that the amount ordered by the chancellor is inequitable and unjust. There is, however, the determination that the father is financially able to provide $250 per month in child support. Under this circumstance we are of the opinion that the trial court did not err in its adjudication.

Mr. Rankin next argues that the chancellor erred as a matter of law in adjudicating that he be required to provide funds for his daughter’s education until she obtained a baccalaureate degree since this would extend his support obligation beyond his daughter’s minority. We conclude a present determination' of this issue would be premature. The daughter is enrolled in the regular and summer sessions of the University. Under this schedule it is probable that Kristy may receive a baccalaureate degree in less than four years, but if she does not, this point can be re-evaluated at that time.

Although the appellee did not seek attorneys fees in the trial court, she now requests that such be awarded on appeal. She contends that a failure to defend the trial court’s decree on appeal would have been detrimental to her daughter’s interest because a reversal in this court would cause a hardship on her daughter as well as herself. This court has adopted the general rule that where attorneys fees were not sought or allowed in the trial court, none will be allowed on appeal. We are therefore of the opinion that attorneys fees should be denied.

The decree of the trial court is affirmed. The motion for attorneys fees on appeal is denied.

AFFIRMED. MOTION FOR ATTORNEYS FEES ON APPEAL IS HEREBY DENIED.

SMITH and SUGG, P. JJ., and BROOM, WALKER, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Donald WARE v. STATE of Mississippi.
    No. 53439.
    Supreme Court of Mississippi.
    March 17, 1982.
    Moore, Royals & Taylor, Robert H. Taylor, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County of the crime of armed robbery and sentenced to serve forty years in the custody of the Department of Corrections. On appeal appellant alleges the following assignments of error:

I. The Court erred in overruling the defendant’s motion for a directed verdict of not guilty at the close of the state’s case.
II. The court erred in allowing the .32 caliber handgun into evidence, which was state’s exhibit No. 2, as it was the product of an illegal search and seizure.
III. The lower court erred in sentencing appellant to a term of forty years in the custody of the Mississippi Department of Corrections as it is disproportionate to the offense for which the appellant stands convicted and as can amount to a life sentence, which the jury refused and opposed.

■ On July 7, 1980, at about 11 p. m. there was a robbery of LeFleur’s Restaurant located on the east side of Interstate 55 in Jackson, Mississippi. Mrs. Frazier was checking her cash register when a tall black male came up and asked for change. He then walked away and a short black male wearing a white sailor cap came around behind the counter with a pistol in his hand. He began to take money out of the cash register, grabbed Mrs. Frazier’s purse and started to leave. A customer in the restaurant heard Mrs. Frazier’s screaming and ran to the scene. He caught the robber, who was a small man, in his arms and was attempting to hold him when he discovered the robber’s pistol. The customer then shoved the robber away. The robber started running through the door and in doing so, lost his cap.

An employee of the restaurant testified he noticed two black males, one tall and the other short, enter the restaurant shortly before the robbery and noticed the short man was wearing a white Navy cap.

Two restaurant employees were unloading garbage outside the restaurant at the loading dock just prior to the robbery when they saw a white and blue Thunderbird automobile drive slowly by the dock. The car stopped adjacent to the restaurant. The two employees then walked toward the car to inspect it more closely. They noticed either a short man or a man bending over on the passenger side of the car who was wearing a white cap pulled down on his head. A few minutes later, the two employees heard the noise from the robbery going on inside the restaurant and saw the blue and white Thunderbird speed away shortly thereafter.

Police Officers Ainsworth and Smith immediately went to the restaurant and secured all the information they could, including the white cap. About thirty minutes after the robbery the officers were driving along Mill Street when they noticed a blue and white Thunderbird run a stop sign. The car was stopped and the driver was requested to produce identification. He produced a driver’s license in the name of a resident of Colorado. A radio check, unfortunately for the driver of the car, showed that the person with that name and license number was wanted in Colorado for a number of crimes, including armed robbery and assault. The driver of the car immediately thought it necessary to change his name and said his name really was James Fleming.

The officers, recognizing the description of the automobile and the two men, placed the men under arrest and made an inventory search of the car. In the rear compartment in a pasteboard box they found a .32 Smith & Wesson revolver with two cartridges therein.

Mrs. Frazier positively identified appellant as the short black male with the white Navy cap who had a gun, took the money from the cash register and grabbed her purse. The customer in the restaurant, who was understandably more concerned with the gun at his stomach rather than inspecting the face of the short man, identified the .32 Smith & Wesson revolver taken from the Thunderbird as the one that was held on him. This identification was through a large white spot that was on the top of the gun.

From the foregoing discussion, it is clear without citing the numerous applicable authorities that there was an abundance of testimony that required the lower court to overrule appellant’s motion for a directed verdict. He clearly was identified as the short man with the gun with the white spot on top of it. This was in addition to the other restaurant employees regarding identification of the car.

Upon the state offering the .32 caliber revolver into evidence, there was an objection on the ground that it was secured from the car by an illegal search and contrary to appellant’s Fourth Amendment rights. This argument may be disposed of by stating that appellant did not show any standing whatever to contend for such right. He was a passenger in the car driven by another. He did not testify, nor was there any other testimony introduced on the contention regarding the alleged illegal search. Appellant is attempting to assert a Fourth Amendment right that was a personal right which cannot be asserted vicariously. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court stated:

We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners. As we stated in Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969); “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” See Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968); Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963); cf. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734, 97 ALR2d 1277 (1961); Gouled v. United States, 255 U.S. 298, 304, 41 S.Ct. 261, 263, 65 L.Ed. 647 (1921). A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. Alderman, supra, at 174, 89 S.Ct. 961 [at 966] 22 L.Ed.2d 176. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561, [66 Ohio Ops.2d 320] (1974), it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections. See Simmons v. United States, supra, [390] at 389, 88 S.Ct. 967 [at 973], 19 L.Ed.2d 1247.

As heretofore stated the only thing that can be said with certainty is that appellant was a passenger in someone’s car. There was absolutely no testimony or showing that he had in any way an “expectation of privacy” in the car that would give him a Fourth Amendment right. Appellant had no “automatic standing” because of the mere fact of his being a passenger in the car as stated in U.S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980):

We are convinced that the automatic standing rule of Jones has outlived its usefulness in this Court’s Fourth Amendment jurisprudence. The doctrine now serves only to afford a windfall to defendants whose Fourth Amendment rights have not been violated. We are unwilling to tolerate the exclusion of probative evidence under such circumstances since we adhere to the view of Alderman that the values of the Fourth Amendment are preserved by a rule which limits the availability of the exclusionary rule to defendants who have been subjected to a violation of their Fourth Amendment rights.
(448 U.S. at 95; 100 S.Ct. at 2554; 65 L.Ed.2d at 630).

The above principle was discussed fully by this Court in the recent case of Butler Moss v. State of Mississippi, 1982, 411 So.2d 90.

Appellant asserts that the forty year sentence was in effect a life sentence and was therefore impermissible under Section 97-3-79, Mississippi Code Annotated, (Supp. 1981) which provides that if the jury does not bring its verdict providing for a life sentence, the court may fix the penalty at imprisonment for any term not less than three years. (Emphasis ours).

In Henderson v. State, 402 So.2d 325 (Miss.1981), we upheld a forty-one year sentence for appellant with an actuarial life expectancy of 41.6 years. The appellant was 26 years of age and had an actuarial life expectancy of 40.51 years. The evidence in the record that was presented at the sentencing hearing would thoroughly justify the lower court in giving the appellant every year possible. This it did and we affirm and approve of the sentence.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Terry Wayne ADAMS v. STATE of Mississippi.
    No. 53249.
    Supreme Court of Mississippi.
    March 17, 1982.

      Robert B. Prather, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Lowndes County wherein Terry Wayne Adams, appellant, pleaded guilty to a charge of aggravated assault and was sentenced as a habitual offender to twenty years in the custody of the Mississippi Department of Corrections without parole or probation. Reserving the right to contest his sentence under the habitual offender statute, Adams appeals and assigns the following error:

The trial court erred in sentencing the appellant as a habitual offender.

On October 12,1973, Terry Wayne Adams pleaded guilty to a charge of grand larceny in the Circuit Court of Lamar County, Alabama. Subsequently, on July 20, 1978, Adams pleaded guilty to a charge of grand larceny in the District Court of the Sixteenth District of the State of Oklahoma. As a result of his plea, Adams was sentenced to serve two years under the direction and control of the Department of Corrections of the State of Oklahoma.

Adams was again indicted at the November 1980 term by a Lowndes County grand jury on a charge of aggravated assault. The indictment also charged Adams as a habitual offender. Adams moved to dismiss the indictment on the grounds that the habitual offender statute constituted cruel and inhuman treatment in that it provided no discretion as to sentencing; the statute failed to specify the procedure for establishing a habitual offender, the statute failed to take into consideration any rehabilitation of a defendant and the statute violated due process in that it did not allow a jury to determine the question of whether a party was a habitual offender.

Adams subsequently filed a petition to enter a plea of guilty to the aggravated assault charge; however, he specifically reserved the right to contest and/or appeal the habitual offender portion of the indictment. Adams thereafter pleaded guilty which, after thorough examination, was accepted by the court. A sentencing hearing was later held and the court found defendant should be sentenced as a habitual offender. Adams received a sentence of twenty years without eligibility for parole or probation in the custody of the Mississippi Department of Corrections.

Did the trial court err in sentencing appellant as a habitual offender?

Appellant argues that neither Mississippi Code Annotated section 99-19-81 (Supp.1981) or any Uniform Criminal Rule of Circuit Court Practice set forth a procedure for determining and adjudicating a defendant as a habitual offender, appellant acknowledges Rule 6.04 entitled “Procedure for Proof of Prior Convictions under the Habitual Criminal Statute,” however, contends this rule applies only to Mississippi Code Annotated section 99-19-83 (Supp. 1981). This question was answered in Usry v. State, 378 So.2d 635 (Miss.1979), wherein this Court held:

All cases tried in the future involving section 99-19-81, the habitual offenders statute, should be tried pursuant to Rule 6.04 of the Mississippi Uniform Criminal Rules of Circuit Court Practice (1972). (378 So.2d at 639)

Defendant next contends that he should have been entitled to a jury trial on the issue of whether or not he was a habitual offender. This precise question was answered by this Court adversely to appellant in Diddlemeyer v. State, 398 So.2d 1343 (Miss.1981), Yates v. State, 396 So.2d 629 (Miss.1981), and Wilson v. State, 395 So.2d 957 (Miss.1981). Although the aforementioned cases involved Section 99-19-83, the procedure involved under both Sections 99-19-81 and 99-19-83 is identical. Usry v. State, supra.

Appellant’s contention that the statute constitutes cruel and inhuman treatment has no merit. In Jordan v. State, 383 So.2d 495 (Miss.1980), this Court stated:

Finally, Brown argues that the minu-mum sentence provision is unconstitutional because it divests the trial court of all discretion concerning the duration of punishment or the granting of probation. In 1916 the Supreme Court held that a United States District Court was not free to ignore a congressionally imposed minimum sentence. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). The Court reiterated that the statutory boundaries of criminal sentences are “peculiarly questions of legislative policy” in Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958). These decisions effectively foreclose appellant’s constitutional attack on the mandatory minumum sentence. (383 So.2d at 497)

This Court has consistently held that a sentence will be upheld if within statutory limits. Mansell v. State, 403 So.2d 871 (Miss.1981), Henderson v. State, 402 So.2d 325 (Miss.1981), and Bracy v. State, 396 So.2d 632 (Miss.1981). Also, where a sentence does not exceed statutory limits, it does not constitute cruel and inhuman treatment. Baker v. State, 394 So.2d 1376 (Miss.1981). Defendant in the present case did not even offer any mitigating circumstances.

Finally, appellant avers his first conviction, relied upon for enhanced punishment, occurred during his minority; therefore, it should not have been considered by the trial judge. There was no evidence presented by appellant during the sentencing phase to show that appellant was tried other than as an adult in Alabama. Remoteness in the convictions relied upon for enhanced punishment is not a factor to be considered. Pace v. State, 407 So.2d 530 (Miss.1981).

Finding no error in the sentencing of appellant as a habitual offender, this case must be affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Harry ODOM v. STATE of Mississippi.
    No. 53,301.
    Supreme Court of Mississippi.
    March 17, 1982.
    Rehearing Denied March 31, 1982.
    C. A. Henley, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before SUGG, P. J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, BOWLING and DAN M. LEE, JJ., concur.


text:
    Miles Courtney KIMSEY v. STATE of Mississippi.
    No. 53076.
    Supreme Court of Mississippi.
    March 17, 1982.
    Ronnie D. Cumbest, Pascagoula, Patrick S. McCarthy, Tyler, Tex., for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before WALKER, BROOM and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Jackie F. STANFORD, et al. v. Russell Carlisle CAROTHERS, Jr., & Marianna Carothers.
    No. 53078.
    Supreme Court of Mississippi.
    March 17, 1982.
    Edward 0. Miller, Gulfport, Clifford C. Thompson, Jackson, for appellants.
    Eaton, Cottrell, Galloway & Lang, James B. Galloway, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    COMMERCIAL UNION INSURANCE CO. v. Curtis O. COOLEY, et ux.
    No. 53069.
    Supreme Court of Mississippi.
    March 17, 1982.
    Aultman & Aultman, Lawrence C. Gunn, Jr., Hattiesburg, for appellant.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, Gordon, Myers & Gordon, Rex Gordon, Sr., Pascagoula, for appellees.
   Appeal from Circuit Court, George County; Darwin M. Maples, Judge.

Before SUGG, P. J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    James Robert WARD and Martha R. Ward v. Lonnie R. BULLARD and Clara F. Bullard.
    No. 53122.
    Supreme Court of Mississippi.
    March 17, 1982.
    Rehearing Denied May 5, 1982.
    Shell, Buford, Bufkin, Callicutt & Perry, K. Hayes Callicutt, Jackson, John P. Fox, Houston, for appellants.
    Mitchell, McNutt, Bush, Lagrone & Sams, L. F. Sams, Jr., Tupelo, for appellees.
   Appeal from Chancery Court, Chickasaw County; W. W. Brand, Jr., Chancellor.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

AFFIRMED.

HAWKINS, J., took no part.


text:
    Mildred BROWN v. Eddie BROWN.
    No. 53375.
    Supreme Court of Mississippi.
    March 17, 1982.
    Jimmy McGuire, Gulfport, for appellant.
    Ben F. Galloway, III, Gulfport, for appel-lee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

Before WALKER, BROOM and DAN M. LEE, JJ.

AFFIRMED.


author: PER CURIAM.

text:
    Woodrow Ray CHERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 60062.
    Supreme Court of Florida.
    Nov. 19, 1981.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for review Fla.App., 389 So.2d 1201 is denied. See Ray v. State, 403 So.2d 956 (Fla.1981).

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


text:
    In re FLORIDA RULES OF PRACTICE AND PROCEDURE FOR TRAFFIC COURTS.
    No. 59111.
    Supreme Court of Florida.
    Feb. 11, 1982.
    Richard E. Cox, Executive Secretary, the Traffic Court Review Committee, Tallahassee, for petitioner.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, the Florida Rules of Practice and Procedure for Traffic Courts are amended in the manner as appended to this opinion and made permanent. Transition Rule 20 is hereby repealed. This action shall be effective immediately.

It is so ordered.

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

I. SCOPE, PURPOSE AND CONSTRUCTION

Rule 6.010 Scope

(a) These Rules govern practice and procedure in any traffic case and specifically apply to practice and procedure in County Courts.

Rule 6.030 [Reserved]

II. GENERAL PROVISIONS

Rule 6.040 Definitions

The following terms shall have the meaning respectively ascribed to them:

“Criminal Traffic Offense” means a violation of a statute or ordinance governing traffic not subject to the provisions of Chapter 318, Florida Statutes, within the jurisdiction of a court to which these rules apply, including Chapter 322, Florida Statutes, sections 316.027, 316.061, 316.067, 316.-072(3), 316.192, 316.193, 316.1935, 860.01, Florida Statutes and Chapter 893, Florida Statutes.

“Infraction” means a noncriminal violation of Chapter 316, or sections 240.265, 320.07(3), 339.30 or 340.23, Florida Statutes, except as provided in section 318.17, Florida Statutes, which is not punishable by incarceration and for which there is no right to a trial by jury or a right to court appointed counsel.

“Department” shall mean the Department of Highway Safety and Motor Vehicles, defined in section 20.24, Florida Statutes, or the appropriate division thereof.

Rule 6.070 Violation of These Rules Contempt; When

Any willful failure to apply these rules or to amend or vacate local court rules contrary to these rules, or the continued participation in practice forbidden in these rules by the official, clerk or other personnel, may be considered a contempt of the Supreme Court of Florida and punished as such.

Rule 6.090 Direct and Indirect Criminal Contempt

Direct and indirect criminal contempt shall be punished in the same manner as in the Criminal Rules of Procedure.

Rule 6.100 Traffic Violations Bureau

(a) A traffic violations bureau shall be established in each county court by administrative order of the chief judge of the circuit in which the county court is located. The function of the bureau shall be to accept appearances, waivers of non-criminal hearings, admissions and payment of civil penalties for traffic infractions not requiring a mandatory hearing. Where any person’s sentence for a criminal traffic offense or penalty for a traffic infraction requiring a mandatory hearing or a traffic infraction where the person elects to appear before an official includes the payment of a fine or civil penalty, payment may be made before the bureau. The bureau may also accept appearances, waivers of hearings, admission's and payment of civil penalties as provided in section 318.18, Florida Statutes, in traffic infraction cases where the driver originally elected, but was not required, to appear before an official prior to the date of the hearing. The bureau shall act under the direction and control of the court.

(b) The court shall post in the place where civil penalties are to be paid in the violations bureau the schedule of the amount of the civil penalty as provided in section 318.18, Florida Statutes. All fines, civil penalties, and costs shall be paid to, receipted by and accounted for by the violations bureau or proper authority in accordance with these rules.

Rule 6.110 Driver Improvement, Student Traffic Safety Council, and DWI Counter Attack Schools

(a) In those areas where traffic law violators are ordered or are allowed to elect to attend a driver improvement school or student traffic safety council school or are sentenced to a DWI Counter Attack School, the chief judge of the circuit shall issue an administrative order designating the schools to which attendance is required. No DWI Counter Attack School shall be approved by the chief judges until approval is first granted by the DWI Schools Coordinator or the Traffic Court Review Committee.

Rule 6.140 Conduct of Trial

All trials and hearings shall be held in open court and shall be conducted in an orderly manner according to law and applicable rules. Questions pertaining to the conduct of the trial or hearing, not covered by law or these rules, shall be determined by the official. Except in emergencies, all proceedings for the trial of traffic cases shall be held in a room suitable for the purpose; such facilities shall be subject to inspection and approval of the Review Committee.

III. CRIMINAL OFFENSES

Rule 6.160 Practice as in Criminal Rules

Except as hereinafter provided, trial under this part shall be governed by the Rules of Criminal Procedure so far as they may be applicable unless they are in conflict with these rules. A person shall be considered “taken into custody” for the purpose of Rule 3.191 when he is arrested or when a traffic citation, notice to appear, summons, information or indictment is served upon him.

Rule 6.165 Complaint; Summons; Form; Use

All prosecutions for criminal traffic offenses by law enforcement officers shall be by uniform traffic citation as provided for in section 316.650, Florida Statutes, or other applicable statutes, or by affidavit, information or indictment as provided for in the Florida Rules of Criminal Procedure. If prosecution is by affidavit, information, or indictment, a uniform traffic citation shall be prepared by the prosecutor and submitted to the Department of Highway Safety and Motor Vehicles.

Rule 6.170 [Reserved]

Rule 6.180 Reserved]

Rule 6.200 Pleas and Affidavits of Defense

(a) All pleas entered in open court shall be recorded by an official court reporter or electronic means, unless the defendant signs a written waiver of this right.

(b) Subject to the approval of the court, written pleas of guilty or nolo contendere may be entered in criminal traffic offenses not designated felonies under the laws of the state and sentence imposed thereon.

(c) Any person charged with the commission of a criminal traffic offense who is not a resident of or domiciled in a county where the alleged offense took place may, at the discretion of the court, file a written statement setting forth facts justifying the filing of an affidavit of defense or file an affidavit of defense directly if practicable upon posting a reasonable bond set by the court.

Rule 6.210 [Reserved]

Rule 6.230 [Reserved]

Rule 6.240 [Reserved]

Rule 6.250 [Reserved]

Rule 6.260 [Reserved]

Rule 6.270 [Reserved]

Rule 6.280 [Reserved]

Rule 6.290 Withholding Adjudication Prohibited; When

(a) Pursuant to the provisions of section 322.281, Florida Statutes, no court shall withhold adjudication of guilt or the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle, while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, model glue, or any substance controlled by Chapter 893, Florida Statutes.

(b) The court is also prohibited from accepting a plea of guilty or nolo contendere to a lesser offense from a person charged with driving under the influence, as provided for in Chapter 316 and 322, Florida Statutes, whose chemical results show a blood alcohol content by weight of .20 percent or more.

Rule 6.300 Driver License Revocation; Maintaining List

In order to comply with the provisions of section 322.282(1), Florida Statutes, the clerk need not maintain a separate list of driver license revocations from his or her existing records.

Rule 6.310 Lesser Included Offenses

No civil traffic infraction shall be considered a lesser included offense of any criminal traffic offense.

IV. TRAFFIC INFRACTIONS

Rule 6.320 Complaint; Summons; Forms, Use

All citations for traffic infractions shall be by uniform traffic citation as provided in section 316.650, Florida Statutes, or other applicable statutes or by affidavit. If the complaint is made by affidavit a uniform traffic citation shall be prepared by the clerk and submitted to the department.

Rule 6.330 Election to Attend Traffic School

(a) Unless a mandatory hearing is required pursuant to section 318.19, Florida Statutes, or the alleged offender appears at a hearing before an official, an alleged offender may elect to attend a driver improvement school or a student traffic safety council school where such schools are available in lieu of payment of the civil penalty. The person must appear at the traffic violations bureau of the court having jurisdiction of the case to make such an election, within ten days of the date of the citation. If the person begins the driver school course, such action shall constitute an admission and a waiver of the right to a hearing. An offender may elect to attend a driver improvement school or student traffic safety council school to satisfy only one traffic infraction citation during each calendar year.

Rule 6.340 Rule on Admission that Traffic Infraction was Committed; Affidavit of Defense

(c) Any person charged with the commission of a traffic infraction who is not a resident of or domiciled in the county where the alleged infraction took place may, at the discretion of the clerk or traffic violations bureau, file a written statement setting forth facts justifying the filing of an affidavit of defense or file an affidavit of defense directly if practicable upon posting a reasonable bond set by the official.

Rule 6.410 [Reserved]

Rule 6.420 [Reserved]

Rule 6.440 [Reserved]

Rule 6.470 Costs

(b) Where no hearing is required or held and the offender admits the commission of the offense by forfeiting a bond or paying the penalty the following costs may, if authorized by administrative order of the Chief Judge of the Circuit, be deducted from the penalty by the traffic violations bureau or clerk’s office:

(1) One dollar for all infractions of bicycle regulations, section 316.2065, Florida Statutes, and infractions of pedestrian regulations, section 316.130, Florida Statutes;

(2) Three dollars for all non-moving traffic infractions; and

(3) Five dollars for all moving infractions.

(c) In addition to the costs provided above, those assessments for law enforcement training established in section 943.-25(4) and (8), Florida Statutes, shall be collected.

Where a hearing is held the law enforcement education assessments shall be in addition to any penalty or costs assessed. Where no hearing is held and the offender admits the commission of the offense by forfeiting a bond or paying the penalty by mail or in person, the law enforcement education assessments shall be deducted from the amount of the penalty in addition to the costs provided in (b) above.

If an offender elects a driver improvement school as provided in Rule 6.330 of these Rules, the law enforcement education assessments shall be collected at the time the offender appears before the traffic violations bureau to make his or her election.

Rule 6.500 Pronouncement and Entry of Penalty; Penalizing Official

(a) The final disposition of every case shall be entered in the minutes in courts in which minutes are kept, and shall be docketed in courts which do not maintain minutes.

Rule 6.560 Conviction of Traffic Infraction

An admission or determination that a person has committed a traffic infraction shall constitute a conviction as that term is used in Chapter 322, Florida Statutes, and section 943.25(4) and (8), Florida Statutes.

Rule 6.570 Reporting Action Requiring Suspension of Driver License

Any noncompliance with the provisions of Chapter 318, Florida Statutes, resulting in the suspension of a driver license shall be reported to the department within 10 days of the noncompliance on a form to be supplied by the department. Any noncompliance may be determined without the necessity of holding a hearing.

Rule 6.575 Retention of Case Files

For the purpose of record retention pursuant to the General Records Schedule D-T 1, case files with an outstanding or unsatisfied D-6 shall be considered disposed of five years after the submission of the D-6 by the clerk to the Department of Highway Safety and Motor Vehicles. If the clerk disposes of a file, the Department shall be notified.

Rule 6.590 Failure to Complete Driver’s School; Reinstatement of Driver License

(a) In any case where a person elects to attend driver’s school but fails to appear for or complete the course, a delinquency notice shall be sent to the person pursuant to section 318.15(1), Florida Statutes, unless such a notice has previously been sent to the person in relation to the same infraction. If such a delinquency notice has been previously sent, notice of failure to complete the course shall be sent to the department within 10 days of such failure and the person’s driver license shall be deemed suspended. Otherwise, notification of the department shall follow 5 days after failure to comply with the requirements of section 318.18(1).

(b) If the person appears after notice has been sent but before the department has suspended the driver license the department shall be notified on a form to be supplied by the department immediately after the civil penalty as provided in section 318.18, Florida Statutes, has been fulfilled.

(c) If the person appears after the driver license has been suspended the offender must fulfill the civil penalty as provided in section 318.18, Florida Statutes, and may be required to agree again to attend a driver school. The person shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station in order to have the driving privilege reinstated.

Rule 6.600 Failure to Appear or Pay Civil Penalty; Reinstatement of Driver License

(a) In any case where no mandatory hearing is required and the person has signed and accepted a citation but fails to pay the civil penalty or appear, a delinquency notice shall be sent to the person pursuant to section 318.15(1), Florida Statutes, unless such a notice has previously been sent to the person in relation to the same infraction. If such a delinquency notice has been previously sent, notice of such failure must be sent to the department within 10 days of the failure and the person’s driver license shall be deemed suspended. Otherwise, notification of the department shall follow 5 days after failure to comply with the requirements of section 318.18(1).

(c) If the person appears after the driver license has been suspended, the alleged offender may pay the civil penalty without a hearing and may be required to agree to attend a driver school or may agree to attend a hearing. If an election to attend a hearing is made and it is determined that the infraction was committed the offender is subject to the penalty provisions of section 318.14(5), Florida Statutes. The person shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station in order to have the driving privilege reinstated.

Rule 6.610 Failure to Fulfill Penalty Imposed After a Hearing; Reinstatement of Driver License

(a) In any case where a hearing is held, if it is determined that the infraction was committed and a penalty is imposed but the penalty is not fulfilled, a delinquency notice shall be sent to the person pursuant to section 318.15(1), Florida Statutes, unless such a notice has previously been sent to the person in relation to the same infraction. If such a delinquency notice has been previously sent, notice of such failure must be sent to the department within 10 days of the failure and the person’s driver license shall be deemed suspended. Otherwise, notification of the department shall follow 5 days after failure to comply with the requirements of section 318.18(1).

(c) If the person appears after the driver license has been suspended the offender must fulfill the penalty and, if not a part of the penalty originally imposed, may be required to agree to attend a driver school if available. The person shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station in order to have the driving privilege reinstated.

Rule 6.620 Failure to Appear for Mandatory Hearing; Reinstatement of Driver License

(a) In any case where a mandatory hearing is required and the person fails to appear, a delinquency notice shall be sent to the person pursuant to section 318.15(1), Florida Statutes, unless such a notice has previously been sent to the person in relation to the same infraction. If such a delinquency notice has been previously sent, notice of such failure to appear must be sent to the department within 10 days of the failure and the person’s driver license shall be deemed suspended. Otherwise, notification of the department shall follow 5 days after failure to comply with the requirements of section 318.18(1).

(c) If the person’s driver license has been suspended by the department and, after a hearing, it is found that the infraction was committed, the official may require that driver’s school, if available, be attended as part of the penalty. The person shall be given a form supplied by the department, certified by the official, to be taken to the nearest driver license examining station in order to have the driving privilege reinstated.


text:
    THE FLORIDA BAR Re: Amendment to Florida Bar Integration Rule, Art. XI, Rule 11.03(2)(c) (Disqualification of Members of Grievance Committees)
    No. 60995.
    Supreme Court of Florida.
    Feb. 18, 1982.
    Samuel S. Smith, President, Miami Beach, James C. Rinaman, Jr., President-elect, Jacksonville, and John F. Harkness, Jr., Executive Director and Patricia J. Brown, Ethics Counsel, Tallahassee, of The Florida Bar; John M. McNatt, Jr., Chairman, Disciplinary Procedures Committee, Jacksonville, and 0. Edgar Williams, Jr., Chairman, Integration Rule and Bylaws Committee, Fort Lauderdale, for petitioner.
   PER CURIAM.

The Florida Bar has petitioned this Court to amend the Florida Bar Integration Rule, Article XI, Rule 11.03(2)(c) as follows:

Membership, appointment and eligibility. Each grievance committee shall be appointed by the Board of Governors and shall consist of not less than three members. At least one-third of the committee members shall be nonlawyers. No member of a grievance committee shall perform any grievance committee function when that member.
(1) is related by blood or marriage to the complainant or accused attorney.
(2) has a financial, business, property or personal interest in the matter under consideration, or with the accused attorney or complainant.
(3) has a personal interest which could be affected by the outcome of the pro-, ceedings or which could affect the outcome.
Upon notice of the above prohibitions the affected member should recuse himself from further proceedings. The grievance committee chairman shall have the power to disqualify any member from any proceeding in which any of the above prohibitions exist, and are stated of record or in writing in the file by the Chairman. When notice of a grievance committee hearing is sent to an accused attorney, such notice shall be accompanied by a list of the grievance committee members.
All appointees shall be of legal age and shall be residents of the circuit or have their principal office in the circuit. The lawyer members of the committee shall have been members of The Florida Bar for not less than five years.

Finding that this amendment is an improvement to the existing rule, we hereby approve the petition and the rule is amended as requested.

It is so ordered.

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