text:
    John DeSHAZO v. CITY OF HUNTSVILLE.
    8 Div. 611.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.
    Certiorari Denied, July 30,1982 Alabama Supreme Court 81-734.

      J. Zach Higgs, Jr., Huntsville, for appellant.
    Roy Wesley Miller, Asst. City Atty., for appellee.
   BARRON, Judge.

Dr. John DeShazo, a dentist, purchased a home at 8501 Hickory Hill Lane, Huntsville, Alabama, in 1978. In 1980, he enclosed the house’s double garage, converting it into a dental office in which he began practicing dentistry in December, 1980, as an “accessory use” of the premises. Dr. DeShazo employed two people to assist him, a dental assistant and a receptionist-bookkeeper.

On a complaint by the City of Huntsville, Dr. DeShazo was convicted on March 6, 1981 in the Huntsville Municipal Court of violating Section 41.1 of Huntsville’s Ordinance 63-93, which provides in part as follows:

“Section 41.1 — Uses
“41.1.1 An accessory use is defined as a use on the same lot with, and of a nature customarily incidental and subordinate to, the principal use permitted on such lot. This definition includes, but shall not be limited to, such customary home occupations as the office of a doctor, lawyer, architect, notary, artist, dressmaker, the taking of not more than 3 boarders and the leasing of not more than 3 rooms.
“Accessory uses permitted in residence districts must adhere to the following requirements:
“Accessory uses shall be engaged in [in] the main building only and shall be conducted only by one person resident in said building.”

From that conviction, the defendant appealed to the Circuit Court of Madison County, where the matter was heard by Snodgrass, J., without the intervention of a jury. The defendant was convicted and fined $100.00 and court costs; that conviction is the basis of this appeal.

I

The focal point of the errors urged by appellant in this appeal relates to the interpretation or construction of that part of the ordinance which provides “and shall be conducted only by one person resident in said building.” The basis of the ordinance violation conviction was to the effect that Dr. DeShazo’s practice was not “conducted only by one person resident in said building” in that he had two employees. Appellant strongly contends, in his brief and in oral argument, that the word “conduct” necessarily implies the permissive use of assistants in the business of carrying on a dental practice. It is argued that because the ordinance authorizes accessory uses for such customary home occupations as a dentist, it impliedly authorizes the utilization of the paraphernalia, instruments, furniture, medicines and employees necessary for the examination and treatment of patients.

An examination of the ordinance shows that its obvious purpose was to permit the continuation of “customary home occupations,” although with designated restrictions, in residential areas, while at the same time preserving the residential character of the areas. This necessarily entails consideration of such elements as the amount of street traffic, the use of display signs, the number of automobiles parked at the residence, and the percentage of floor space occupied by the business.

Undoubtedly, a municipality would have the authority to entirely prohibit all business enterprises from operating in residential zones, Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553 (1948), Chapman v. City of Troy, 241 Ala. 637, 4 So.2d 1 (1941). It naturally follows that a municipality may attach reasonable restrictions to business activity in residential areas. In the instant case, one such restriction is that the business activity may be carried on by only one person, who must reside in the residence. It does not appear to be unreasonable.

Appellant urges that the word “conduct” is or should be used in the sense of managing, directing or leading, thereby authorizing the use of employees. We think that this is not a reasonable construction of the meaning of the ordinance. This would permit the employment of an almost unlimited number of persons and the carrying on of a business of considerable size in a residential zone, as long as the person managing it lived in the premises. Lemp v. Township of Millburn, 129 N.J.L. 221, 28 A.2d 767 (1942). The purpose of the ordinance was to prevent such an eventuality.

Red Acres Imp. Club v. Burkhalter., 193 Tenn. 79, 241 S.W.2d 921 (Tenn.1951), is distinguished from the case at bar in that the court there held, 241 S.W.2d at page 924, “(T)here is no inference in this ordinance that the doctor may not have any of these reasonably necessary articles or employees.” We hold that such inference is implicit in the language of the ordinance in this case. We do not agree that the prohibition against employees has the practical effect of destroying the privilege of business accessory use of residential property. However, even if it does, the municipality is doing no more indirectly than it could have done directly, that is, entirely prohibit a medical practice in a residential area.

II

Appellant correctly urges the rule in this state that the restriction of zones imposed by a zoning ordinance must be declared as a rule of law in the ordinance, and not left to the uncertainty of proof by intrinsic evidence, Johnson v. City of Huntsville, 249 Ala. 36, 29 So.2d 342 (1947), Pentecostal Holiness Church of Montgomery v. Dunn, 248 Ala. 314, 27 So.2d 561 (1946). The ordinance in question satisfies this requirement.

III

Lastly, appellant raised the issue that his conviction is violative of due process and equal protection of the law. Swann v. City of Graysville, 367 So.2d 952 (Ala.1979). Here, as in Swann, the subject concerned in the ordinance was acknowledged to be within the municipality’s power of control and regulation. The remaining facet of that issue, then, is whether the City of Huntsville has enforced the subject ordinance in an arbitrary, capricious or discriminatory manner. We think not.

The record of evidence is silent in that regard except for appellant’s cross examination of Mr. Tom Dozier, a witness for the City of Huntsville, as follows:

“Q. Are you familiar with Dr. Dill-worth’s office that was previously in the City of Huntsville?
“A. Yes, sir.
“Q. His wife worked for him?
“A. Yes, sir.”

There are no indications from the record as to whether Dr. Dillworth’s activity came within the purview of the ordinance in question, or whether his office was located in a commercial zone.

This court has previously held that, although no clear standards exist for quantum or type of proof sufficient to illustrate discriminatory enforcement of a statute or a municipal ordinance, three elements must generally be proved: selectivity in enforcement; selectivity that is intentional; and selectivity based upon some invidious or unjustifiable standard such as race, religion, or other arbitrary classification. It is insufficient merely to show that other violators have not been prosecuted, that there has been laxity in enforcement, or that there has been conscious exercise of some selectivity in enforcement. Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.1979). From this evidence, there is no showing of selective or capricious prosecution by the City of Huntsville.

For the reasons shown, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Alice B. GALLOWAY, alias v. STATE.
    3 Div. 356.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.
    Certiorari Denied, July 30,1982 Alabama Supreme Court 81-785.

      Al J. Sansone and George E. Hutchinson of Volz, Capouano, Wampold & Sansone, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted for the February 2,1980, arson of the Mayer Electric building located on Adams Avenue in downtown Montgomery, in violation of Alabama Code § 13A-7-42 (Amended 1977.) A lengthy trial followed with the jury, after several days of deliberation, finding her guilty of arson in the second degree as charged in the indictment. Subsequent thereto, the trial court held a sentencing hearing where it fixed appellant’s punishment at three years’ imprisonment. From that conviction she now appeals in forma pauperis.

Larry Miles, president of APCOA, Incorporated, which installs burglar and fire alarm systems, testified that, on February 2, 1980, Mayer Electric was a client of his, having a 24-hour alarm system covering its building on Adams Avenue. The system could be turned off at two places, one being a door facing Hilliard Street, which was the primary entrance and exist used by Mayer employees, and the other at the main control panel inside an office in the building. The door control was key operated and suppressed only that portion of the alarm protecting the door. If the integrity of the system was challenged, an alarm was sounded at APCOA headquarters, which in turn immediately called the police and a representative of Mayer Electric.

Around 1:20 a. m., February 2, such a situation occurred. Miles called the Montgomery Police Department and Chuck Peppers of Mayer Electric. Later that morning Miles viewed the scene of the fire and found the main control panel in an “on” position and the Hilliard Street door control in an “off” position.

Montgomery Police Officer M. E. Wright testified that, around 1:20 a. m. or 1:30 a. m., February 2, he drove past the Mayer Electric building and saw smoke billowing from the roof. He called the police station and requested that the fire department be notified. Officer Wright checked the building and found no broken windows, no unlocked doors or fences, and no signs of forced entry. He stated that it appeared that the fire had been burning for some time.

Mayer Electric purchasing agent Charles Peppers testified that he and warehouse manager Alvin Thomas were the last people to leave the building on February 1, that being around 5:30 p. m. He left via the Hilliard Street exit. Peppers stated that he locked the door and activated the alarm system. He did not know whether appellant had keys to the door and alarm system. Around 1:30 a. m. on February 2 he received a telephone call from APCOA informing him that the alarm system had been triggered. He drove to the Mayer Electric building arriving around 1:45 a. m., and saw the fire department officials attempting to force their way through the Hilliard Street door. He offered a key to. them which they used to gain entrance. They had already entered the building from Adams Avenue through a window. Peppers testified that the main control panel was located in his office but he did not activate it prior to his leaving. Rather, Alvin Thomas informed him that he had turned it on.

Peppers testified that appellant’s desk was located in the computer room which experienced an overloaded electrical circuit the afternoon of February 1, causing a fuse to blow. He stated that blown electrical fuses were not uncommon occurrences at Mayer Electric and had happened several times in the past. In addition, he stated that in 1977 there had been a fire in the building which had extensively damaged the inventory. Appellant was employed with Mayer at the time. Peppers stated that it was each department’s responsibility to turn the lights and equipment off and secure its work area before leaving each evening.

Montgomery Fire Department District Chief Wayne Grier testified that, around 1:30 a. m. on February 2, his company received a call concerning the fire at the Mayer Electric building. The company responded within three to four minutes. Upon arriving at the scene, the firemen found no unlocked entrance and forced their way into the building by breaking windows and glass doors. Chief Grier stated that later a Mayer employee unlocked the Hilliard Street door. No attempt was made to disengage the alarm protecting the door. Chief Grier testified that it took about ten to fifteen minutes to gain control over the fire which he estimated had been burning for approximately forty-five minutes to one hour. The fire was subsequently extinguished. He called Chief Arson Investigator Charles Kelly.

Montgomery Fire Department Arson Investigator Charles Kelly testified that, between 2:15 a. m. and 2:30 a. m. on February 2, he arrived on the scene of the Mayer Electric building fire. After being qualified as an expert without objection, Investigator Kelly testified that his investigation revealed that the fire had started in the computer room and had been concentrated therein. He found two areas of intense heat and burning in the room, termed “hot spots,” which he concluded were the points of origin of the fire. The “hot spots” were not near the baseboard heaters in the room. In addition, a portable heater in the room, while completely destroyed, was unplugged. The two areas had burned through the carpet and tile floor beneath it to the concrete foundation. He stated that the two “hot spots” had burned nearly simultaneously. Investigator Kelly stated that the fire produced intense heat which completely destroyed two oak desks. He eliminated any heating or lighting fixture as the cause of the fire, as well as any malfunction to the electrical circuitry of the building. In addition, he stated that the fire was not caused by spontaneous combustion or an unextin-guished cigarette.

Investigator Kelly found in the computer room a cleaning fluid containing alcohol. He stated that alcohol had good penetrative qualities and settles at the lowest point of an area. He took samples from the debris remaining in the computer room to determine whether an accelerant such as alcohol had been used. Although Investigator Kelly expressed an opinion that the cleaning fluid could have been used in setting the fire, the tests results proved to be negative.

Prior to entering the building, Investigator Kelly had viewed the Hilliard Street door and found the alarm system at that entrance disengaged. He found no signs of forced entry into the building. Investigator Kelly testified that interviews with the firemen who had fought the blaze revealed that the office area had been ransacked prior to their entering the building.

Investigator Kelly concluded that the fire was set intentionally by an arsonist.

The state’s next witness was Donald Zwick, a fire investigator for System Engineering Associates of Atlanta, Georgia. After being duly qualified as an expert in arson investigations, Zwick testified that, on February 6, 1980, he, accompanied by Investigator Kelly, investigated the fire at the Mayer Electric building. Zwick’s conclusions, based upon his independent observations, were identical to that of Investigator Kelly. Zwick determined the origin of the fire to have been located in the computer room and the fire to have been deliberately caused. He stated that a flammable accelerant of some type was used to set the fire. Zwick eliminated all possible accidental causes of the fire, including any electrical sources.

Mr. Robert Kelly testified that, on February 1 and 2, 1980, he was employed by Mayer Electric Company and was appellant’s supervisor. Kelly described an illicit relationship he had had with appellant. Appellant possibly became pregnant from such relationship and Kelly described appellant’s emotional condition. Kelly stated that appellant discussed the possibility of her pregnancy with him on February 1. He stated that, after initially being upset, appellant seemed calm by that afternoon and told him that she was going to visit her sister in Pensacola, Florida, over the weekend and discuss the situation with her. Kelly later heard that appellant had had an abortion.

Kelly testified that, on the Friday one week prior to the fire, he had given his keys to the Hilliard Street door and alarm system to appellant so that she and another employee, Brenda Conway, could enter the building the next day to work. He stated that appellant and Conway worked that weekend. On Thursday, January 31, Kelly asked appellant for the keys but did not receive them. Appellant began to remove them from her key ring but Kelly was called away and she never gave them to him. Kelly testified that appellant was a trusted employee and could have procured keys to the building whenever she wanted them.

On Friday, February 1, office manager Jim Summerlin discussed with Kelly and appellant the recent inventory shortage the company had experienced. Kelly stated that appellant and he had found a large portion of the shortage. However, he stated that Summerlin told them that he would come to work on Saturday, February 2, and review the records before calling the auditors.

Kelly discussed the 1977 fire at Mayer’s as well as a fire that occurred at the Birmingham office. He stated that his office had received threatening calls before and after the 1977 fire. Kelly indicated that cleaning fluid and alcohol were stored in a desk in the computer room not used by the appellant.

Mr. Alvin Conway testified that he operated a service station on the South Boulevard near Interstate 65 and that appellant was a regular customer. He knew appellant • well as she lived with his daughter, Brenda Conway. Around 6:30 p. m. or 7:00 p. m., on February 1, Conway filled appellant’s car with gasoline. At that time appellant told him that she was going to Pensacola but did not say when she would be leaving.

Brenda Conway testified that she was an employee of Mayer Electric and had known appellant personally for some time. In fact, appellant and Miss Conway had been roommates prior to and after Miss Conway’s marriage. She stated that they discussed their personal problems together and she knew about appellant’s relationship with Robert Kelly and the possibility that she could have been pregnant with his child.

On February 1, Miss Conway did not work but called appellant before lunch to discuss her payroll check. Miss Conway stated that appellant sounded upset and mentioned terminating her employment with Mayer because of her relationship with Kelly. Later that afternoon, Miss Conway picked up her check and saw appellant, who did not appear to be upset. Around 6:00 p. m., appellant returned to their residence and told Miss Conway she was going to Pensacola to visit her sister. Miss Conway testified that she understood appellant to mean that she was leaving for Pensacola as soon as she finished packing. Miss Conway stated that she was questioned concerning the fire at Mayer Electric and that two investigators, Burroughs and Kelly, told her that they did not think appellant started the fire, but that she might be covering up for someone.

The state recalled Investigator Kelly who testified to his interviewing appellant on February 14. He stated that he advised her of her Miranda rights. He stated that appellant acknowledged that she understood her rights and signed a waiver of rights form. A proper voluntariness predicate was then laid. The statement was admitted into evidence without objection.

In her statement appellant, after initially stating that after work she went directly to Pensacola, changed her statement and admitted being at Mayer Electric the evening of February 1. She stated she left the building around 12:30 a. m. on February 2. She made two telephone calls to Pensacola while at Mayer, one at 7:06 p. m. and the other at 9:50 p. m. Appellant stated that she failed to reactivate the alarm system when she left but said that she locked the Hilliard Street door.

Investigator Kelly testified that appellant did not change her story concerning her whereabouts on February 1, until he informed her that a police officer had seen her car at the Mayer Electric building. He denied discussing with Miss Conway appellant’s possible involvement in the fire.

Montgomery Police Corporal M. S. Ward testified that, between 12:00 a. m. and 1:00 a. m. on February 2, he saw a late model Ford with a white top and dark body parked at the Mayer Electric building. He did not investigate because he had seen the car parked there before on numerous occasions.

Jim Summerlin, manager of Mayer Electric of Montgomery, testified that, around 12:00 noon on February 1, he discussed with appellant and Robert Kelly the recent inventory shortage and his coming to work on Saturday to attempt to find it. He stated that because of the fire, the reasons for the shortage (which totalled about $170,000) could never be determined. Summerlin was aware of fuses failing in the building but did not think that the computer room had overloaded circuits. He also knew of the threats made before and after the 1977 fire, but stated that they were found to have been made by a “con artist.” He stated that three or four months prior to the fire, appellant had mentioned her leaving the employ of Mayer. He thought appellant was a responsible employee but found it out of character for her not to have reactivated the alarm after she left the building on February 2. Summerlin stated that appellant was not normally entrusted with keys to the building but he or Robert Kelly could authorize her having them.

Mr. Summerlin’s testimony concluded presentation of the state’s case in chief. Appellant moved for a directed verdict which the trial court denied.

Appellant called several character witnesses as well as her mother and sister, who testified about their conversations with appellant on February 1 and 2.

Robert Kelly was called as a defense witness and testified that the records destroyed by the fire could be duplicated either by contacting the company with which Mayer Electric had done business or the Birmingham office which kept many of them stored in their computer. He stated that, on February 2, he called appellant’s mother and told her that, due to his affair with the appellant, both he and appellant might lose their jobs.

Mr. Richard Payne, an investigator for the State of Alabama, after being qualified as an expert in origins and causes of fires, answered a hypothetical question in the affirmative that falling debris could have caused the “hot spots” in the computer room. He could not state whether the “hot spots” were the points of origin of the fire without having more information. He stated that if the “hot spots” were caused by an accelerant, one other than alcohol would have been used.

Appellant took the stand and recited in substance many of the facts elicited by the state during its case in chief concerning the details of her whereabouts on February 1 and 2. She testified to her affair with Robert Kelly, her planned trip to Pensacola, and her telephone calls to her sister. She admitted returning alone to the Mayer Electric building on February 1. She stated that she left around 11:30 or 12:00 p. m. Appellant denied setting the fire.

Appellant contends that the trial court erred in denying her motions for a directed verdict and a new trial on the grounds that the state did not establish either the corpus delicti or a prima facie case.

The state’s evidence clearly established a burning of a building originated by a criminal agency. This establishes the corpus delicti of the crime, which may be proven by circumstantial evidence. Smiley v. State, 376 So.2d 813 (Ala.Cr.App.1979).

The state’s evidence was based primarily on circumstantial evidence. After a careful review of it in light of the appropriate standards, Dolvin v. State, 391 So.2d 133 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1979), we find that the trial court did not err in denying both of appellant’s motions. The evidence presented was clearly sufficient for the jury to have reasonably inferred that appellant intentionally damaged the Mayer Electric building by starting a fire. Alabama Code § 13A-7-43 (Amended 1977).

Lastly, appellant contends that the trial court committed reversible error during one of its instructions to the jury. In his brief, appellant quotes several isolated statements of the trial court which it made to the jury during breaks in its deliberations. However, appellant directs our attention to only one statement in which the trial court referred to the expense of trying the instant case. We have reviewed the other instances quoted in brief and find nothing prejudicial to appellant.

The jury had been deliberating for over a day and was having difficulty in reaching a verdict when the complained of comments occurred. The trial court had instructed the jury throughout its deliberations as to its role and duty, and without coercion had urged them to reach an agreement. Some time after a lunch break on the last of its over two days of deliberations, the trial court gave a lengthy instruction to the jury during which the complained of comments were made. We quote those challenged portions:

“I don’t want to suggest to you and don’t mean to suggest to you that you’re not doing your duty. I know that every juror is entitled to his or her opinion but I know that you don’t wish to put the State and the public, that’s you, to the expense of another trial on the same issues if it can be avoided.... I frankly think it’s important both to the State and to the Defendant that going to the trouble and expense of a new trial be avoided if it can be done fairly under the evidence.. . . The State has been put, as you already know, to some bit of expense in the trial of the case and I do not feel like releasing you.”

Appellant objected to the above comment to which the trial court replied:

“THE COURT: All right. Objection duly noted.”

Initially we note that the trial court’s statement was an adverse ruling to appellant’s objection and thus preserved the alleged error for our review. Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (1954); Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975).

It is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict so long as it does not coerce or suggest which way the verdict should be returned. McMorris v. State, 394 So.2d 392 (Ala.Cr.App.1980), cert. denied, 394 So.2d 404 (Ala.1981); Allred v. State, 390 So.2d 1109 (Ala.Cr.App.), cert. denied, 390 So.2d 1114 (Ala. 1980); Lake v. State, 390 So.2d 1088 (Ala.Cr.App.), cert. denied, 390 So.2d 1093 (Ala.1980). For a summary of authorities see 6B Alabama Digest Criminal Law 865(1).

It is not error for the trial court to call the jury’s attention to the time and expense a new trial would entail. Ashford v. McKee, 183 Ala. 620, 62 So. 879 (1913); Watson v. State, 398 So.2d 320 (Ala.Cr.App., 1980), cert. denied, 398 So.2d 332 (Ala.1981); Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181 (1972).

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

AFFIRMED.

All the Judges concur.


author: BARRON, Judge.

text:
    Cecil Deron YOUNG v. STATE.
    8 Div. 605.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.

      C. B. Caine, Jr., Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

The appellant was indicted and convicted for the first degree murder of Vanche El-lette by shooting her with a pistol. His punishment was fixed at life imprisonment. Although appellant was a juvenile at the time of the offense, he was duly transferred to the Lawrence County Circuit Court to be tried as an adult. Young v. State, 399 So.2d 262 (Ala.1981).

The sufficiency of the State’s evidence is not questioned on this appeal. Therefore, a lengthy recitation of facts is unnecessary. Briefly, the undisputed evidence reveals that the appellant broke into the deceased’s home in Mount Hope between two and three a. m. on August 4, 1979, and shot her to death with a .38 caliber pistol after being told twice to “get out of here.” The only excuse the appellant offered for his action was that he “heard some noises” and “was scared of the dark.” Appellant testified, “I just shut my eyes, and I just started firing the gun.”

I

The appellant contends that the trial court committed reversible error by excluding Miss Ruth Martin, the deceased’s sister and the State’s first witness, from “The Rule” after it had been invoked, and allowing her to take the witness stand for a second time after listening to the testimony of two other State witnesses. We disagree.

Where the rule for the exclusion of witnesses from the courtroom is invoked, it is within the sound discretion of the trial court to allow any one of the witnesses to remain in the courtroom during the examination of the others and the exercise of this discretion is not reviewable on appeal. Huskey v. State, 129 Ala. 94, 29 So. 838 (1901); Barnes v. State, 88 Ala. 204, 7 So. 38 (1890); Stone v. State, 55 Ala.App. 663, 318 So.2d 359 (1975). And this principle is applicable in a prosecution for first degree murder. Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953); Roynica v. State, 54 Ala.App. 436, 309 So.2d 475 (1974), cert. denied, 293 Ala. 772, 309 So.2d 485, cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1975). The sequestration of witnesses in a criminal prosecution, while rarely withheld upon request, is nevertheless discretionary with the trial court, and even where a witness remains in the courtroom in violation of the rule, the trial court’s decision as to his testifying or not is not open to review. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), cert. denied, 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

The purpose of sequestration is to obviate as far as possible one witness’s trying to make his testimony consistent with that of another. Carpenter v. State, 400 So.2d 417, 423 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981); Rowell v. State, 53 Ala.App. 286, 299 So.2d 332 (1974). As was stated in Beddow, supra, “the efficacy of sequestration — which can only occur during the trial — is probably overrated. The law has moved from oath-taking to cross examination in its search for the truth.” 39 Ala.App., at 31, 96 So.2d, at 177. Appellant, in this case, does not argue that Miss Martin attempted to make her testimony consistent with other State witnesses when she was recalled to the stand; rather, it is argued that her testimony “was in direct contradiction to the other witnesses for the State.” Moreover, appellant’s cross examination of Miss Martin was thorough and sifting. In short, we find no error in the trial court’s exercise of its discretion.

II

The record reflects that after the jury venire had been' sworn and asked certain preliminary questions by the trial court, defense counsel voiced an objection to appellant’s being brought into the courtroom handcuffed to six other inmates. The exact number of minutes the appellant remained handcuffed in the presence of the prospective jurors cannot be ascertained from the record. Defense counsel did recognize that the handcuffs had been removed one or two minutes before his objection. The objection was overruled. The district attorney and defense counsel then conducted a lengthy voir dire examination of the prospective jurors in three panels; the jurors were later struck and the examination of witnesses began. There is no further indication in the record, after defense counsel’s initial objection was made, that appellant again appeared in the courtroom handcuffed. Based on these facts we find no error in the trial court’s ruling.

A similar question was presented in Moffett v. State, 291 Ala. 382, 281 So.2d 630, 631-632 (1973), cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114 (1974), where our Supreme Court held:

“We are not persuaded that there is reversible error because the defendant was brought into the courtroom handcuffed to a deputy sheriff. The handcuffs were immediately removed from him after he was brought into the courtroom during the trial. Edwards v. State, 279 Ala. 371, 185 So.2d 393 (1966). A sheriff who is charged with the responsibility of safely keeping an accused has the right in his discretion to handcuff him when he is bringing him to and from the courtroom, when the handcuffs are removed immediately after he is taken into the courtroom. Smith v. State, 247 Ala. 354, 24 So.2d 546 (1946); Faire v. State, 58 Ala. 74 (1877). The record shows that defendant was in jail at the time of this trial.”

And as was stated by this court in Taylor v. State, 372 So.2d 387, 389 (Ala.Cr.App.1979):

“The possibility of some prejudice to defendant in what occurred as narrated by defendant’s counsel is not to be ignored, but there is not a sufficient showing thereof to justify the conclusion that the trial court was in error in overruling defendant’s motion for a mistrial. Appellant relies upon the sound general statement in Clark v. State, 280 Ala. 493, 496, 195 So.2d 786, 788 (1967):
“ ‘. All of the authorities we have studied are agreed that to bring a prisoner before the bar of justice in handcuffs or shackles, where there is no pretense of necessity, is inconsistent with our notion of a fair trial, for it creates in the minds of the jury a prejudice which will likely deter them from deciding the prisoner’s fate impartially. ...’
“Not to be overlooked, however, is the distinction made in Clark between handcuffing a prisoner in taking him to and from the court and in keeping him in handcuffs while he is being tried, unless there is reasonable ground for belief that such restraint is necessary to prevent his escaping or his rescue.
“ ‘Furthermore, it is not ground for a mistrial that an accused felon appear in the presence of the jury in handcuffs when such appearance is only a part of going to and from the courtroom. This is not the same as keeping an accused in shackles and handcuffs while being tried. Rhodes v. State, 34 Ala.App. 481, 41 So.2d 623 (1949).’ ”

Furthermore, the record affirmatively shows through the testimony of four inmate witnesses, three of whom testified for appellant, and through appellant’s own testimony, that appellant was in jail at the time of his trial. Moffett, supra. And it should be pointed out that the trial court comprehensively instructed the jury on appellant’s presumption of innocence in its oral charge. See Racine v. State, 51 Ala.App. 484, 286 So.2d 890, cert. denied, 291 Ala. 684, 286 So.2d 896 (1973), where the trial court cured any error in this regard by proper instructions to the jury.

Ill

During the cross examination of appellant's aunt, Elizabeth L. Young, defense counsel elicited testimony that appellant had never been a discipline problem, that he had always done what he had been told when he was in her home. On redirect the witness repeated that appellant had never been a discipline problem around her, that he had always been “good.” The district attorney then asked the following question: “Okay. Did you have any other trouble this last summer? I am talking about the Summer of ’79, peeping in windows?” Appellant objected to the question, but before the trial court could rule, the witness answered, “Not to my knowledge.” After discussion by counsel and a voir dire examination of the witness out of the presence of the jury, the trial court sustained appellant’s objection to the question but overruled the motion for a mistrial. The trial court further gave a curative instruction to the jury that they were not to glean any inference from the question or answer, that it was not evidence in the case. We find no error.

Here the action of the trial court in sustaining the defense counsel’s objection and in thereby refusing to allow the prosecutor to elicit the sought after information was sufficient to prevent reversible error. Dickey v. State, 390 So.2d 1177 (Ala.Cr.App.), cert. denied, 390 So.2d 1178 (Ala.1980). And even if a prosecutor asks an improper question of a witness, if the trial court instructs the jury to disregard the question, any error which might have occurred otherwise can be cured. Perry v. State, 371 So.2d 969 (Ala.Cr.App.), cert. denied, 371 So.2d 971 (Ala.1979). A motion for a mistrial implies a miscarriage of justice and should only be granted where it is clearly manifest that justice cannot be afforded. It specifies such fundamental error in a trial as to vitiate the result. Dickey, supra. The granting of a mistrial is an extreme measure and should not be granted where the prejudicial qualities of the comment can be eradicated by the action of the trial court. Dickey, supra. Such action would have been far too drastic in this case. Furthermore, a negative answer to an improper question does not constitute reversible error. Scroggins v. State, 341 So.2d 967 (Ala.Cr.App.1976), cert. denied, 341 So.2d 972 (Ala.1977).

For the reasons shown, the judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: ALDERMAN, Justice.

text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE, ARTICLE VIII, SUBSECTION 1 (DUES).
    No. 61968.
    Supreme Court of Florida.
    June 17, 1982.
    Samuel S. Smith, President, Miami Beach, James C. Rinaman, Jr., President-elect, Jacksonville, Sidney A. Stubbs, Jr., Chairman, Budget Committee, West Palm Beach, and John F. Harkness, Jr., Executive Director, Tallahassee, of The Florida Bar, for petitioner.
   ALDERMAN, Justice.

We consider the petition of The Florida Bar to amend Florida Bar Integration Rule, article VIII, section 1, so that annual dues will be set by a vote of the Board of Governors of The Florida Bar instead of by the members of the Bar attending the annual convention. The Bar also requests that the present maximum of $125 at which dues may be fixed be increased to $140 in 1982, $150 in 1983, and $160 in 1984 and thereafter. We amend the rule to allow the annual dues to be set by vote of the Board of Governors, and we increase the maximum at which dues may be fixed from $125 to $140; however, we deny the Bar’s request that we further raise the dues’ cap for future years.

Notice of this proposed amendment was published in The Florida Bar News, and this petition was set for oral argument. All interested parties have been given an opportunity to be heard.

In support of this petition, the Bar alleges that as a result of inflation the dues increase is essential to the continuation of the present level of services offered by the Bar to members of the Bar and to the public. Without the increase, the Bar asserts, it will be necessary to completely cut or phase out some ongoing Bar programs and to substantially reduce others. Present and future programs of the Bar have been closely scrutinized by the Bar’s Program and Function Review Committee in an effort to hold down costs to avoid unnecessary dues increases. If the Bar is to maintain its present programs, no further cutbacks are practicable.

In support of its request that the Board set the dues within the maximum amount approved by this Court without a referendum by Bar members attending the annual meeting, the Bar contends that the individual governors, as elected representatives of the Bar’s membership, can best determine the future budgetary needs of the Bar. It points out that the proposed change in the rule is consistent with the Bar’s representative form of government and that if members of the Board of Governors do not represent the views of the lawyers who elect them, they may be voted out of office. The Bar further contends that the present method of referendum at the annual Bar convention is untenable because only a very small percentage of Bar members attend the general assembly of the convention where the vote is taken. It concludes that the Board of Governors, which is apportioned geographically and numerically, is a better representative body to set the amount of the annual dues.

Some lawyers have voiced opposition to the dues increase and to the elimination of the membership vote on the dues increase at the Bar’s annual meeting. The position taken by the majority of those opposing the dues increase is premised on their philosophy that the Bar’s activities should be limited to such things as the discipline of lawyers and regulation of the practice of law. Some suggest that the public service programs of the Bar should not be funded from dues and that the time has come to cease requiring payment from the Florida lawyers for funding these functions of the Bar.

This position, however, is wholly inconsistent with the nature of the integrated Bar in Florida. In our original opinion granting the petition to integrate the Bar, we declared that Bar integration was not a compulsory union, but rather was a necessary one to secure the composite judgment of the Bar on questions involving its duty to the profession and to the public. We expressly recognized that the Bar has a responsibility to the public that is unique and different in degree from that exacted of members of other professions. Petition of Florida State Bar Association, 40 So.2d 902 (Fla.1949).

Integration allows every lawyer to bear his fair share of the burden of carrying on the activities of the bar, provides the best method for developing programs beneficial to the profession and the public, improves the general character, integrity, and ability of individual members, and instills public confidence in the inherent dignity and honesty of the profession. As stated in the preamble to the Integration Rule of The Florida Bar, the pronounced purposes of integration are to inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence.

The Florida Bar has met and continues to meet its obligation to the public and its members through its various programs. Through these programs, it has taken a leadership role in improving the administration of justice. Because of its achievements, The Florida Bar is recognized as one of the outstanding Bars in the nation and has received top awards from the American Bar Association for overall excellence.

These achievements promote not only the interest of the legal profession but also the interest of the public. It is in the best interest of all the people of Florida that we not “hamstring” The Florida Bar. While there are many ways that an individual lawyer may serve the public’s interest, The Florida Bar is the vehicle “by which every member of the bar is given an opportunity to do his part in performing the public service expected of him, and by which each member is obliged to bear his portion of the responsibility.” 40 So.2d at 904.

We conclude that the Bar has made an adequate showing for the need to raise the cap for Bar dues from $125 to $140. We decline, however, to raise the cap for future years at the present time. If the Board feels a need for another increase in the cap at a later time, it must again come before the Court and justify its needs. In this way, the Board is more accountable to us and to the lawyers it represents.

We also find that the Board has made an adequate showing as to why it should set the Bar dues without a referendum of the Bar membership at the annual convention. This amendment is consistent with the representative nature of government of the Bar.

Accordingly, we hereby amend article VIII, section 1 to read as follows:

On or before July 1, 1979, and on or before July 1 of each year thereafter, every active member of The Florida Bar shall pay annual dues to The Florida Bar in such an amount as shall be set at an annual meeting by the Board of Governors, and shall also file with the executive director a statement setting forth his business and residential addresses and other information that may be required by the Board of Governors, provided that at no- annual meeting shall the dues be fixed at more than $1254)0- per-annuim the Board of Governors shall not fix the dues at more than $140.00 per annum.

This amendment shall be effective immediately. No petition for rehearing will be allowed.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ„ concur.

ADKINS, J., dissents.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, In re AMENDMENT TO RULES OF CRIMINAL PROCEDURE—3.390(a).
    No. 58988-C.
    Supreme Court of Florida.
    June 17, 1982.
    Leo A. Thomas, Chairman of the Criminal Procedure Rules Committee, Pensacola, and Erwin Fleet, Chairman of the Conference of Circuit Judges of Florida, Shalimar, for petitioners.
   PER CURIAM.

This matter is before the Court on Petitions of the Criminal Procedure Rules Committee of The Florida Bar and the Conference of Circuit Judges of Florida to amend Rule 3.390(a), Florida Rules of Criminal Procedure.

The Court does not deem this matter an emergency for consideration outside the regular four year cycle pursuant to Rule 2.130(a), Florida Rules of Judicial Administration.

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

ALDERMAN, J., dissents with opinion.

ALDERMAN, Justice,

dissenting.

I believe the proposed amendment to Florida Rule of Criminal Procedure 3.390(a) should be considered now rather than be postponed until the regular four-year cycle for consideration of changes to the criminal rules.

Rule 3.390(a) currently provides:

(a) The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.

Upon recommendation of the Executive Council of the Florida Conference of Circuit Judges, the Criminal Procedure Rules Committee of The Florida Bar voted 17 to 3 to recommend to this Court that it amend rule 3.390(a) to read as follows:

(a) The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel. Except in capital cases, the judge shall not instruct the jury on the sentence which may be imposed for the offense for which the accused is on trial.

This proposal eliminates the requirement that the trial court, upon request of either the State or the defendant, instruct the jury as to the maximum and minimum sentences which may be imposed for the offense for which the accused is on trial.

The resolution of the Executive Council of the Conference of Circuit Judges states cogent reasons for eliminating this portion of rule 3.390(a). It explains that the penalty is irrelevant to the jury’s sole responsibility of determining a defendant’s guilt or innocence, that the jury cannot be privy to the myriad factors which must be considered in sentencing, and that the court's advising the jury of the possible penalty is wholly inconsistent with the jury’s responsibility to disregard the consequences of its verdict and tends to encourage a deplorable phenomenon which has come to be referred to as a “jury pardon.”

The deplorable phenomenon referred to by the Conference of Circuit Judges is the exercise by a jury of its power to return a verdict contrary to the evidence. In criminal cases, this abuse of power is irremediable because once the jury has wrongfully acquitted a defendant, its abuse of power may not be corrected on appeal. Just as there are individuals who disregard the law, there may also be juries that disregard the law. A jury that returns a verdict contrary to the evidence based on feelings of prejudice, bias, or sympathy is an “outlaw” jury, and its verdict will be a miscarriage of

justice. Rule 3.390(a), as presently written, allows juries to be informed about matters that are irrelevant to its fact-finding job and which may encourage it to render a verdict contrary to the evidence. We should not allow a jury to be given information which it should not in fact consider. See Tascano v. State, 393 So.2d 540 (Fla.1980) (Alderman, J., dissenting).

Accordingly, I would amend rule 3.390(a) as recommended, and I would amend it now outside the regular four-year cycle.


author: OVERTON, Justice.

text:
    In re RULE 9.331, DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC, FLORIDA RULES OF APPELLATE PROCEDURE.
    No. 50409-D.
    Supreme Court of Florida.
    June 24, 1982.
    E. R. Mills, Jr., Chairman of the Conference of Judges of District Courts of Appeal, Tallahassee, and John R. Beranek, Chairman of the Florida Appellate Court Rules Committee of The Florida Bar, West Palm Beach, for petitioners.
   OVERTON, Justice.

The Florida Conference of District Court of Appeal Judges has petitioned this Court to consider an emergency rule change to address practical problems which have arisen in the en banc decisional process under the en banc rule, Florida Rule of Appellate Procedure 9.331. We accept jurisdiction pursuant to Florida Rule of Judicial Administration 2.130(a) and (f).

The problems presented in the petition for our solution concern the number of judges of a district court of appeal necessary to constitute a “majority” in terms of an en banc panel. An additional issue presented by the chief judges of the district courts concerns whether one three-judge panel can expressly overrule or recede from a prior opinion of another three-judge panel of the same district upon the same point of law. We find that rule 9.331 and its commentary should be modified.

First and foremost, we must emphasize that a direct and important interrelationship exists between the en banc rule and the new constitutional amendment which limits Supreme Court jurisdiction. See art. V, § 3, Fla.Const. The amendment substantially strengthened the position of the district courts of appeal as final appellate courts. The en banc rule is an essential part of the philosophy of the constitutional scheme embodied in the new amendment because the Supreme Court no longer has jurisdiction under the amendment to review ;n ira-district conflict.

The appellate structure commission, which this Court established to study the efficiency of Florida appellate structure, recommended that intra-district conflict be resolved by the district courts of appeal sitting en banc, rather than by this Court. The commission also recommended that such an en banc procedure be implemented by court rule. In its study, the commission considered any possible constitutional infirmity of such a rule and concluded that no constitutional impediment existed. The commission also noted that the federal courts had given a similar construction and interpretation to almost identical language in the congressional act which established the United States Circuit Courts of Appeals and the resulting authority for each circuit to proceed en banc.

This Court agreed with the commission and concluded that an en banc rule as part of Florida’s appellate structural scheme was appropriate and constitutional, particularly under the philosophy that the district courts should, to the extent possible, be final appellate courts. See In Re Rule 9.331, Determination by a District Court of Appeal En Banc, 374 So.2d 992, modified, 377 So.2d 700 (Fla.1979). Justice Boyd disagreed with the majority and expressed his dissent on constitutional grounds. Id. at 994-95 (Boyd, J., dissenting). The constitutional amendment was thereafter presented to the legislature and, in turn, to the electorate of the state with the understanding that the district courts of appeal could sit en banc to resolve intra-district conflict. In fact, under the new amendment, if intra-district conflict is not resolved within the district courts by en banc decision, totally inconsistent decisions could be left standing and litigants left in doubt as to the state of law. The new appellate structural scheme, including the en banc process, was intended to solve that problem and to provide litigants with a clear statement of the law within any given district.

This historical discussion leads to the question raised by the chief judges of the district courts, whether one three-judge panel can expressly overrule or recede from a prior decision of a three-judge panel of the same court on the same point of law. Under our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole. The view that one district court panel is independent of other panels on the same court could possibly be a proper constitutional interpretation if our constitution provided that district courts were merely intermediate courts, with this Court, as the state’s highest court, having full discretionary jurisdiction to review all intermediate court decisions. This was not, however, the type of appellate structural scheme adopted by the electorate. In fact, the suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.

Although we agree that, to carry out the purpose behind our new appellate structure, a three-judge panel of a district court should not overrule or recede from a prior panel’s ruling on an identical point of the law, we cannot accept the chief judges’ suggestion that we should prohibit that action by court rule. Without addressing possible constitutional problems, we find that a strict rule of procedure would be unworkable and inappropriate under the circumstances. We recognize that in many instances factual circumstances are different and cases may be distinguishable on that basis. In addition, the issues raised and argued in a prior case may not be the same as issues raised and argued in the case under review.

We have full confidence that the district court of appeal judges, with a full understanding of our new appellate structural scheme, will endeavor to carry out their responsibility to make the law consistent within their district in accordance with that intent. We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing. As an alternative, the district court panel could, of course, certify the issue to this Court for resolution. Consistency of law within a district is essential to avoid unnecessary and costly litigation. We conclude that the district court judges, through their opinions, will adopt principles to ensure this result.

The next item for our determination requires a definition of the term “majority of the district court” as applied in en banc proceedings. This issue, in essence, poses two questions for our review. The first is whether the term “majority of the district court” contemplates an absolute majority of all the active judges of a district court to grant an en banc hearing or whether it contemplates only a majority of those judges actually participating in the en banc hearing request. The second is whether the term contemplates an absolute majority of the active judges of the district court to render an en banc opinion on the merits or whether a simple majority of those active judges actually participating on the case is sufficient.

It is our opinion that a simple majority of the active judges actually participating and voting on a case, without regard to illness or recusal, is all that should be necessary to call an en banc hearing as well as to reach a decision on the merits. We reject the argument that we should require a majority of the active judges on the entire court, whether participating or not. The asserted justification for the latter view is that, because the decision will bind the district court as a whole, a majority of the actual number of the active judges should be required to both call an en banc hearing and to reach a decision on the merits of the issues presented. That view, however, could punish the litigants by possibly requiring an extraordinary number of judges to call an en banc hearing or, if called, to vote in favor of an opinion to reach a decision in the case. For instance, on an eight-judge court, if only five are sitting (e.g., two disqualified and one ill), an extraordinary vote of all five of the sitting judges would be required to both call an en banc hearing and to reach a decision on the merits. This, we believe, is unfair to the litigants who have no control over the disqualification or illness of judges in active service. Further, such a rule would be contrary to the philosophy of establishing finality and consistency in the law of each district with the prompt resolution of intra-district conflict. Failure to reach an en banc decision simply because of illness or recusal of one or more judges could leave intra-district conflict with no suitable means for resolution within the district court. For this reason, we conclude that only a majority of the actual sitting members of the court is necessary both to call and to reach an en banc decision.

The final issue concerns the effect of a tie vote by an en banc panel when considering the merits of the case. We conclude that an evenly split vote on the merits after an en banc hearing leaves the panel decision of the district court standing, and, in the event that there is no panel decision, the trial court decision must be affirmed. In either case, the divergent views culminating in a tie vote of the en banc court render the matter one which suggests that the district court should certify the issue to this Court for resolution.

In accordance with the views expressed in this opinion and the policy decisions made, the en banc rule, Rule of Appellate Procedure 9.331, is modified as follows:

(a) En Banc Proceedings; Generally. A majority of the judges of a district court of appeal participating may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court’s decisions. The en banc decision shall be by a majority of the active judges actually participating and vot ing on the case. In the event of a tie vote, the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision.
(b) Hearings En Banc. A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing. A motion seeking the hearing shall be stricken.
(c) Rehearings En Banc.
(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.
(2) Required Statement for Rehearing En Banc. A rehearing en banc is an extraordinary proceeding. In every case the duty of counsel is discharged without filing a motion for rehearing en banc unless the ground set forth in (1) is clearly met. When filed by an attorney, the motion shall contain the following statement:
I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court: (citing specifically the case or cases).
/s/-
(3)Formal Order on Motion for Rehearing En Banc. An order on a motion for rehearing en banc shall be deemed denied upon a denial of rehearing or a grant of rehearing without en banc consideration. If rehearing en banc is granted, the court may limit the issues to be reheard, require the filing of additional briefs, and may require additional argument.

COMMENTARY

This rule is patterned in part after the en banc rule of the United States Court of Appeals for the Fifth and Eleventh Circuits. The rule is an essential part of the philosophy of our present appellate structure because the supreme court no longer has jurisdiction to review intra-district conflict. The new appellate structural scheme requires the district courts of appeal to resolve conflict within their respective districts through the en banc process. By so doing, this should result in a clear statement of the law applicable to that particular district.

Subsection (a) provides that a majority vote of the active and participating members of the district court is necessary to set a case for hearing en banc or rehearing en banc. The issues on the merits will be decided by a simple majority of the judges actually participating in the en banc process, without regard to recu-sals or a judge’s absence for illness. All judges in regular active service, not excluded for cause, will constitute the en banc panel. Counsel are reminded that en banc proceedings are extraordinary and will be ordered only in the enumerated circumstances. The ground, maintenance of uniformity in the court’s decisions, is the equivalent of decisional conflict as developed by supreme court precedent in the exercise of its conflict jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity. The effect of an en banc tie vote is self-explanatory, but such a vote does suggest that the matter is one which should be certified to the supreme court for resolution.

Subsection (b) provides that hearings en banc may not be sought by the litigants; such hearings may be ordered only by the district court sua sponte.

Subsection (c)(1) governs rehearings en banc. A litigant may apply for an en banc rehearing only on the ground that intra-district conflict of decisions exists, and then only in conjunction with a timely filed motion for rehearing under Rule 9.330. The en banc rule does not allow for a separate motion for an en banc rehearing nor does it require the district court to enter a separate order on such request. Once a timely motion for rehearing en bane is filed in conjunction with a traditional petition for rehearing, the three judges on the initial panel must consider the motion. A vote of the entire court may be initiated by any single judge on the panel. Any other judge on the court may also trigger a vote by the entire court. Nonpanel judges are not required to review petitions for rehearing en banc until a vote is requested by another judge, although all petitions for rehearing en banc should be circulated to nonpanel judges. The court may on its own motion order a rehearing en banc.

Subsection (c)(2) requires a signed statement of counsel certifying a bona fide belief that an en banc hearing is necessary to ensure decisional harmony within the district.

Subsection (c)(3) is intended to prevent baseless motions for en banc rehearings from absorbing excessive judicial time and labor. The district courts will not enter orders denying motions for en banc rehearings. If a rehearing en banc is granted, the court may order briefs from the parties and set the case for oral argument.

The Florida Bar is directed to publish this rule change in the Florida Bar News by July 15,1982, so that interested parties may have the opportunity to object to the modification of this rule and respond to this Court on or before September 1,1982. Barring further amendment or modification as a result of the responses received, the rule shall become effective on October 1, 1982, at 12:01 a. m.

It is so ordered.

SUNDBERG, C. J., and ADKINS, ALDERMAN, McDonald and EHRLICH, JJ., concur.

BOYD, J., dissents.

      . See Report of the Supreme Court Commission on the Florida Appellate Structure, 53 Fla. B.J. 274, 279 (1979).

      . See id. at 292 (Appendix A); Textile Milis Sec. Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249 (1941).

      . See, e.g., United States v. Adamson, 665 F.2d 649 (5th Cir. 1982); Board of Educ. v. Hufstedler, 641 F.2d 68 (2d Cir. 1981); Caldwell v. Ogden Sea Transp., Inc., 618 F.2d 1037 (4th Cir. 1980); Timmreck v. United States, 577 F.2d 372 (6th Cir. 1978), rev’d, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); United States v. Bryant, 471 F.2d 1040 (D.C.Cir.1972), cert. denied, 409 U.S. 1112, 93 S.Ct. 923, 34 L.Ed.2d 693 (1973); Etcheverry v. United States, 320 F.2d 873 (9th Cir.), cert. denied, 375 U.S. 930, 84 S.Ct. 331, 11 L.Ed.2d 263 (1963).

      . A tie vote on whether to call an en banc hearing is not at issue because a majority vote is necessary to have an en banc hearing.


author: PER CURIAM. PER CURIAM.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Wesley A. DAVIS, Appellee.
    No. YY-191.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    As Clarified Feb. 16, 1982.
    Luke G. Galant of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Bette Towers Miller and Gary I. Christian of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.

       The words “and his dependents” were added by the 1979 amendments.

   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a Deputy Commissioner’s order finding that social security benefits paid to the claimant’s dependents as a result of his December 22, 1978, accident could not be offset pursuant to Florida Statutes, § 440.15(10)(a), as amended in 1979. The basis of the Deputy’s holding was that the change in the statute to permit consideration of dependents’ benefits was substantive and, therefore, could not be applied to an accident occurring prior to the new statute’s effective date. We reverse in light of our decisions in Modern Plating Co. v. Whitton, 394 So.2d 515 (Fla. 1st DCA 1981), and General Development Corp. v. Price, 404 So.2d 859 (Fla. 1st DCA 1981), which held the change to be procedural and applicable regardless of the date of the accident.

Both parties have also pointed out that, if the offset for the dependents’ benefits is permitted, this court must decide whether Florida Statutes, § 440.12(2) still mandates that claimant receive minimum workers’ compensation benefits of $20 per week even though social security benefits payable to him and his wife and son exceed 80 percent of his average weekly wage, the maximum compensation permitted by § 440.15(10)(a), supra. There is no decisional precedent directly on point.

The purpose and application of § 440.12(2) remains, as with predecessor provisions commencing with the original enactment of the Workmen’s Compensation Act, to provide a legislatively mandated minimum “compensation,” a term defined in § 440.02(H) of the present Act. Because § 440.12(2) provides a minimum for “compensation,” and because compensation is defined by § 440.02(11) as money payable “as provided for in this chapter,” we conclude that money payable under social security laws is not money payable under Chapter 440 or provided for therein. The prescribed minimum and offset provisions must in our opinion be thus construed consistent with the statutory maximum on compensation to affirm the order in this case on this point.

Accordingly, the order below is REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent herewith.

BOOTH, SHAW and WENTWORTH, JJ., concur.

ON MOTION FOR CLARIFICATION

PER CURIAM.

Because money payable under social security laws is not “compensation” as defined by § 440.02(11), the minimum compensation provision of § 440.12(2) is unaffected by the receipt of social security benefits. Claimant is entitled to the § 440.12(2) minimum compensation payments despite any § 440.15(10)(a) offset which would otherwise be applicable.

BOOTH, SHAW and WENTWORTH, JJ., concur.

      . Florida Statutes, § 440.15(10)(a):
      Weekly compensation benefits payable under this'chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. § 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee and his dependents had such employee not been entitled to benefits under this chapter, under 42 U.S.C. §§ 423 and 402, does not exceed 80 percent of the employee’s average weekly wage.. .. [emphasis supplied]

      . Florida Statutes, § 440.12(2):
      Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week....

      . See, American Bankers Insurance Co. v. Little, 393 So.2d 1063 (Fla.1980), wherein claimant’s workers’ compensation benefits were reduced to four cents per week after offset for social security benefits, but § 440.12(2) was, apparently, not considered.

      . Laws of Florida, 1935, c. 17481, § 12.

      . Florida Statutes, § 440.02(11):
      “Compensation” means the money allowance payable to an employee or to his dependents as provided for in this chapter, [e.s.]