author: TYSON, Judge.

text:
    Ricky Ray MERCHANT v. STATE.
    6 Div. 943.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      Larry P. Knopf, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Ricky Ray Merchant was charged with the robbery of Anna Jo Jenkins by taking some $1234.00 from her person and against her will by putting her in fear, etc. The jury found the appellant “guilty of robbery” as charged in the indictment and fixed punishment at ten years imprisonment. The trial judge set sentence in accordance with this verdict.

From the overruling of the appellant’s pretrial motion to suppress, the State’s identification testimony, and the overruling of the appellant’s motion to exclude the State’s evidence, the appellant prosecutes this appeal.

Anna Jo Jenkins testified she was a cashier at the Winn-Dixie store located at 2415 Avenue E, Ensley, Alabama, on Sunday, March 6, 1977. Ms. Jenkins indicated that she was working at the cash register nearest the office toward the front of the store and had noticed the appellant come in with another black male and walk around in the produce department. She stated that he was wearing a red toboggan cap and a short black coat. She noticed him picking up produce and watched him closely. She said she later saw him leaving the store with his companion without purchasing anything. Ms. Jenkins stated she commented to Mr. Pruitt, the store’s manager, about the two boys, and he mentioned that he also had noticed them. Ms. Jenkins indicated that, later that afternoon, the appellant returned to the store and came to her check-out counter where the following occurred (R. pp. 68-69):

“Q. Tell the ladies and gentlemen of the jury about what time this was.
“A. It was between four and four thirty that afternoon.
“Q. O.K. Where did you see him?
“A. He came up to the side of the register in between the registers, hit me on the leg and said, ‘Don’t move.’- I had checked a customer out and the drawer was still open, and he said, ‘Don’t move.’ Well, I didn’t and I was real close to him and I kept looking at him.
“Q. All right. How close was he to you?
“A. I would say as close as this lady here.
“Q. Mrs. White, the court reporter?
“A. Yes, sir.
“Q. Were you face to face?
“A. He had his side view to me.
“Q. Did you ever get a chance to look him straight in the face?
“A. Straight in the face, yes, sir, because when he hit me I turned and looked at him.
“Q. Explain to the jury where his hands were when he hit you.
“A. It was in his pocket, coat pocket.
“Q. All right. Was the coat kind of like this?
“A. A little longer.
“Q. Do you know which hand he had in his pocket?
“A. He would have his left hand.
“Q. In his pocket?
“A. Yes, sir.
“Q. Now how did he hit you?
“A. He hit me on the side.
“Q. Like this?
“A. Yes, sir. Said, ‘Don’t move.’
“Q. When he hit you did you feel anything hit your leg?
“A. Yes, I did — it hurt.
“Q. What did it feel like to you?
“A. Well, like something hard in his pocket.
“Q. Did you have any bruises or anything to your leg?
“A. I had a blue mark on my leg.
“Q. Cash register drawer was open?
“A. Yes, sir.
“Q. Did he have anything in his hands after he hit you, did he take anything?
“A. He had a sack in his hand after he hit me, he had a sack in one hand and then he pulled his hand out of his pocket and started taking the money out of the drawer.
“Q. Did he ever touch anything in the drawer or anything in the cash register with his hands?
“A. No sir, I’m positive he did not.
“Q. Now how much in your judgment, approximately, how much money did he take?
“A. It was around twelve hundred dollars, a little over.”

Ms. Jenkins indicated that, as she stood there, she called in a low voice for Eddie Herrtin, the grocery sack boy, who was standing nearby. She stated that the appellant, Merchant, after grabbing the money from the cash register, placed it in a paper bag, then dropped it, and had to scoop the money from the floor before running from the store. Ms. Jenkins indicated that the appellant was wearing a red toboggan cap, black pants and coat, was about six feet tall and weighed between 160 and 170 pounds. She stated that he was growing a mustache, and that she gave this description to the police officers, who were telephoned shortly after the appellant ran from the store.

Ms. Jenkins indicated that, some three or four days following the robbery in question, the appellant returned to the store with three companions. She stated that on this occasion she went to another cash register and attempted to sack up some groceries for another cashier so that she could get a good look at the appellant. She stated that in about five minutes the appellant and his companions returned to the front of the store and came to her cash register. She stated that she got a good look at them, and they were giggling and laughing, and they had picked up some candy. She stated that on this occasion the appellant bought some shrimp, paid for it and left with his companions. Ms. Jenkins reported this second visit of the appellant to Mr. Pruitt, the store manager, and also to Police Detective Sergeant Felts, who investigated the robbery.

On cross-examination, Ms. Jenkins stated that the cashier, whom she assisted on the occasion of the appellant’s coming back to the store with three companions, was Mrs. Kathleen Thompson, and that she asked Mrs. Thompson to watch her counter while she followed the boys to the frozen food department where they picked up the frozen shrimp. She said she wanted to be positive that this was the same boy who had robbed her three or four days earlier. She stated that on this occasion the appellant and his companions were in the store from five to ten minutes.

Ms. Jenkins indicated that Sergeant Felts showed her two different groups of black and white photographs of black males of similar size, and the photographs were of similar detail and clarity. She stated that no suggestion was made to her on either occasion when she examined the photographs. She stated that she could not pick out anyone on the first occasion, which was about one week after the robbery, but on the second occasion when the photographs were shown to her she picked out the photograph of the appellant without hesitation. No police lineup was involved in this case.

Ms. Jenkins made a positive in-court identification of the appellant as the person who had robbed her on Sunday afternoon, March 6, 1977, at the Winn-Dixie store.

Edward Patrick Herrtin stated he was employed as a grocery “stock and sack man” at the Winn-Dixie store located at 2415 Avenue E, Ensley, Alabama, on March 6,1977. He stated that he remembered the appellant coming into the store on this date, and that he was sacking groceries in the line next to the cash register where Ms. Jenkins was working on Sunday afternoon between 4:30 and 5:00. He stated that he was only two or three feet from the appellant and noticed him wearing a red toboggan cap and a black coat. He heard Ms. Jenkins call his name. He looked up and observed Merchant, the appellant, taking money from the cash register. He stated that he saw Merchant drop the bag of money as he started out of the store, that Merchant picked up the money and the bag hurriedly, then ran from the store.

Mr. Herrtin made a positive in-court identification of the appellant.

On cross-examination, Herrtin indicated that he did not see a weapon as the appellant was taking the money from the cash register, nor did he see Merchant strike Ms. Jenkins on the leg. He stated that the appellant was bent over somewhat, reaching for the money, when he heard Ms. Jenkins call his name, and that he viewed him for about thirty seconds on this occasion. He stated that he was not shown any photographs following the robbery, nor did he participate in a police lineup. Mr. Herrtin indicated that he told Detective Felts he could identify the robber and had given him a description of the robber, indicating that he was approximately six feet tall, weighed about 170 pounds, was wearing a red toboggan cap, a dark blue coat, blue jeans, and had a “slight mustache.”

Herrtin also indicated he had talked with the appellant’s attorney, Larry Knopf, about ten days before trial, by telephone, and told him that he wanted to be sure of the identity of the appellant, but then he was sure when he saw him in court.

A motion to exclude Herrtin’s in-court identification was overruled.

Mr. John Pruitt stated he was store manager of Winn-Dixie located at 2415 Avenue E, Ensley, on Sunday, March 6, 1977. Pruitt indicated Ms. Jenkins worked at the first cash register nearest the office, and that Eddie Herrtin was employed as a stock and grocery sacker on that date. Pruitt indicated that he examined Ms. Jenkins’s cash register immediately after she reported the robbery, which occurred between 4:30 and 5:00 p. m. He stated that he discovered $1234.00 was missing from her register. Pruitt indicated that he did not get a good look at the appellant at the time of the robbery, but judged him to be about six feet tall, weighing about 175 pounds, wearing a red toboggan cap and a dark blue coat. He stated that he had been in the back of the store momentarily when Ms. Jenkins called for him to come up front. He made an in-court identification of the appellant because he had seen him in the store earlier that same morning and remembered Ms. Jenkins talking with him concerning the behavior of the appellant. He stated that Ms. Jenkins told him the appellant was picking up merchandise and laughing and giggling.

Birmingham Detective Sergeant Howard Felts testified that he was with the robbery detail and investigated an incident which occurred March 6, 1977, at the Winn-Dixie store on Avenue E in Ensley. Felts stated that he talked with Ms. Jenkins, a cashier, and also with Edward Herrtin, a sack boy. He stated that they described the appellant as being a black male, about six feet tall, weighing between 160 and 170 pounds, who was between nineteen and twenty-two years of age, with a thin mustache. Each stated that the appellant wore a red toboggan cap with a dark blue or black cloth coat and blue jeans. Each stated to him they were able to identify the appellant at a later date.

Felts indicated that on March 11,1977, he showed Ms. Jenkins a group of black and white photographs of different black males who were of similar size, and that the photographs were of similar detail and clarity. Felts stated he made no effort to outline any individual to Ms. Jenkins, but just simply requested that she look at the photographs. A short time later, she returned these to him and indicated that the appellant was not in this group. Felts indicated that on the second occasion, March 13,1977, he showed a second group of photographs to Ms. Jenkins, and in just a few minutes she selected. the photograph of the appellant. Felts indicated that Ms. Jenkins did so without any suggestion whatever on his part, and that the second group of photographs were also of black males of similar size, that they were also black and white and of similar detail and clarity. Both groups of photographs were admitted into evidence. Felts indicated that Ms. Jenkins subsequently signed a warrant, but that no police lineup was conducted.

Felts stated that he requested the evidence technician to make fingerprint lifts, but that he was unsuccessful.

At the close of the State’s evidence, the appellant made a motion to exclude the State’s evidence, which was overruled.

The appellant recalled Mr. Pruitt, the store manager, for further examination, but did not take the stand himself and testify at trial, nor offer any other evidence.

I

The appellant contends that the victim’s in-court identification was tainted by an impermissibly suggestive photographic array, and that his motion to suppress or exclude should have been granted. The appellant cites us to Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

We have carefully considered the appellant’s argument, but we note that Ms. Jenkins, Mr. Herrtin, and Mr. Pruitt all based their in-court identification upon the fact that they had observed the appellant in the Winn-Dixie store on the date of the robbery in question, March 6, 1977. Further, both Ms. Jenkins and Mr. Herrtin had given a description of the appellant to Sergeant Felts and told him that they could make a subsequent identification. Neither Mr. Herrtin nor Mr. Pruitt were shown photographs, and Ms. Jenkins pointed out to Sergeant Felts that she did not observe anyone in the first group of photographs brought to her by him that resembled the appellant. She also testified that she observed the appellant in the store three or four days later with three companions, and that she reported this to Mr. Pruitt, the manager, and also to Sergeant Felts. She stated that she positioned herself in the store in such a manner as to observe the appellant on this occasion for about five minutes, and that he came back to her cash register where he paid for some frozen shrimp, then left the store. Ms. Jenkins’ testimony concerning the appellant’s actions at the time of the robbery and his statements to her was proper for the jury’s consideration. Brown v. State, 48 Ala.App. 456, 265 So.2d 898 (1972); Little v. State, Ala.Cr.App., 357 So.2d 379 (1978).

We do not believe that the in-court identification of the appellant by any of the witnesses in question was unduly suggestive, and, therefore, the trial court properly overruled the appellant’s motion to suppress and motion to exclude the State’s evidence at trial. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976); Dixon v. State, Ala.Cr.App., 357 So.2d 690 (1978); Lomax v. State, Ala.Cr.App., 359 So.2d 832, cert. denied, Ala., 359 So.2d 836 (1978), cert. denied, 439 U.S. 969, 99 S.Ct. 461, 58 L.Ed.2d 428.

II

Appellant asserts that reversible error occurred during the closing argument and cites us to the following colloquy (R. pp. 142-143):

“(Thereupon, Mr. Gomany addressed the jury in opening argument, on behalf of the State of Alabama, during which the following occurred:)
“MR. GOMANY: You can draw inference about a weapon—
“MR. SEABOURNE: Judge, there has been no reference to any object that has been brought out in this trial. Mr. Goma-ny knows that.
“THE COURT: Ladies and gentlemen, I will caution you that statements of any one of the three lawyers is not evidence. The only evidence you are to consider in this case came from the witness stand and no other source. I will leave it up to your individual recollection as to what the evidence was.
“MR. GOMANY: How many times has Church’s Chicken been robbed by the same person?
“MR. SEYBOURNE: Ask for a mistrial. Ask Mr. Gomany to refrain from doing that.
“THE COURT: Sustain the objection. Overrule the motion for a mistrial. Exclude that last statement of the district attorney, ladies and gentlemen.
“MR. GOMANY: He wants a mistrial because he is scared.
“MR. SEYBOURNE: Judge—
“THE COURT: I don’t want to caution you again, Mr. Gomany. Sustain the objection. Sit down, Mr. Seabourne.”

As may be seen in examining the foregoing colloquy, the trial court promptly sustained the appellant’s objection indicating to the jury that lawyers’ statements were not evidence and should not be considered as such, excluded the remarks of the district attorney from the jury, and sustained the appellant’s objection.

We believe that this prompt action by the trial judge removed from the jury’s deliberation any prejudicial effect that such comment may have had. The trial judge’s emphatic action was the proper basis for his overruling the appellant’s motion for a mistrial. Woods v. State, Ala.Cr.App., 344 So.2d 1225 (1976), cert. quashed, Ala., 344 So.2d 1230 (1977); Gavin v. State, 52 Ala.App. 469, 294 So.2d 169, cert. denied, 292 Ala. 722, 294 So.2d 170 (1974); Retowsky v. State, Ala.Cr.App., 333 So.2d 193 (1976); Ellenburg v. State, Ala.Cr.App., 353 So.2d 810 (1977); Earley v. State, Ala.Cr.App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978); Bailey v. State, Ala.Cr.App., 375 So.2d 1278, cert. denied, Ala., 375 So.2d 1284 (1979); and Kuczenska v. State, Ala.Cr. App., 378 So.2d 1182 (1979), cert. denied, Ala., 378 So.2d 1186 (1980).

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Ricky Ray MERCHANT. (Re: Ricky Ray Merchant v. State of Alabama).
    79-488.
    Supreme Court of Alabama.
    April 7, 1980
   PER CURIAM.

WRIT DENIED AND PETITION FOR REINSTATEMENT OF PETITION FOR WRIT OF CERTIORARI DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Eddie Lamar SHARPE v. STATE.
    5 Div. 480.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Michael D. Cook, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty under an indictment charging in pertinent part that he “did unlawfully sell, furnish or give away marijuana, a controlled substance contrary to the provisions of the Alabama Uniform Controlled Substances Act.”

Appellant insists that his demurrer to the indictment on the ground of its failure “to allege the name of the vendee and therefore does not inform the Defendant of the charge against him which he must defend” was erroneously overruled. He expressly acknowledges that the Supreme Court of Alabama in Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973), rev’g 51 Ala.App. 552, 287 So.2d 447, disposed of the identical insistence adversely to appellant. He cannot rightly expect this Court to rule otherwise.

Another insistence of appellant, that, as the substance alleged to have been sold, furnished or given away was spelled “marijuana” in the indictment as distinguished from “marihuana” as it is found in the Alabama Uniform Controlled Substances Act (Code of Alabama 1975, § 20-2-23(3)(j), the corpus delicti was not proved by evidence showing that “marijuana” had been sold without any evidence showing that it contained “tetrahydrocannabinol,” there was a failure to establish the corpus delicti of a crime constituting the violation of the Alabama Uniform Controlled Substances Act, is not in accord with what has heretofore been authoritatively held. In Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied, 294 Ala. 758, 312 So.2d 414 (1975), it was held that: “marijuana” contains “tetrahydrocannabinol (THC).” To the same effect are Hill v. State, 56 Ala.App. 369, 321 So.2d 708, 712 (1975), cert. denied, 295 Ala. 405, 321 So.2d 713; Smith v. State, Ala.Cr.App., 335 So.2d 393, 394-395, cert. denied, 335 So.2d 397 (1976). The precise question now considered has been twice decided against appellant. Radney v. State, Ala.Cr.App., 342 So.2d 942, 945, cert. denied, 342 So.2d 947 (1977); Winnings v. State, Ala.Cr.App., 370 So.2d 323, 328, cert. denied, 370 So.2d 329 (1979).

We do not agree with appellant’s contention that the chain of custody as to the marijuana was not established by the evidence, but there is no occasion for a full discussion as to the evidence as to the links of such chain, for the reason that, as stated in appellant’s brief, the substance “was offered into evidence and admitted without objection.” He further says in his objection that “Defendant would therefore gain nothing by objecting to the introduction of the substance in evidence at this [that] time.” In other words, it appears that the particular insistence of appellant now considered is conditioned on a determination in his favor of his contention that the failure of the evidence to show by express testimony that the marijuana contained tetrahydrocannabi-nol constituted a failure to show a violation of the controlled substances law. As the condition has failed as noted above, nothing remains to support the conclusion urged by appellant.

The witness for the State who testified that he bought marijuana from the defendant was Guy Metcalf, Jr., an employee of the Alabama Bureau of Investigation, Department of Public Safety, Narcotics Division, who said that about 9:00 P.M. on May 28,1978, he bought the substance from defendant, who was identified to him at that time merely by the name of “Slim.” This occurred in a block house on Gate Street in Fairfax. While the witness was in the process of testifying on direct examination as to his said purchase of the marijuana, defendant indicated an objection to the witness’ in-court identification of defendant and asked for a voir dire interrogation of the witness out of the presence of the jury, which was granted. During such hearing out of the presence of the jury, it was shown that on November 30,1978, at a trailer or mobile home of Lamar Bagley a search warrant was in the process of being executed for search of the premises and that at such time Officer Metcalf had been requested by officers executing the warrant to appear at the trailer, which he did. There he saw the defendant, who he then learned was named Eddie Lamar Sharpe. Appellant made it known that he claimed that any in-court identification of the defendant by Officer Metcalf was tainted by an illegal search of the premises or an illegal arrest of defendant at the time. It is now contended by appellant that “Mr. Met-calf therefore had no authority to be where he was and was in the process of an illegal search and seizure when he identified the defendant and ascertained his name.” He bases his contention on Code of Alabama 1975, § 15-5-7, which provides:

“A search warrant may be executed by any of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.”

Neither party offered the search warrant in evidence, and we do not have the benefit of a copy thereof. Assuming, however, that defendant’s contention is correct that the warrant was not directed to Officer Met-calf, but to another officer or officers, we are unable to agree with appellant’s conclusion that there was a violation of the letter or spirit of § 15-5-7, Code of Alabama 1975. The pertinent part of the testimony of Officer Metcalf was as follows:

“Q. And they didn’t ask you to come over and participate in the search of Lamar Bagley’s trailer, did they?
“A. Yes, sir.
“Q. And help them execute the warrant?
“A. Yes, sir.
“Q. Who asked you?
“A. This was all a part of — I don’t remember which one of the Sheriffs made it, I believe it was Mr. Walker.
“Q. Mr. Walker?
“A. Yes.
“Q. Asked you to come along?
“A. Yes, sir, it was one of the Sheriff’s Deputies.
“Q. Johnny Walker?
“A. Yes.
“MR. COOK: I would ask the Clerk to issue a subpoena for Johnny Walker in this case.
“Q. Do you state that Johnny Walker asked you to come along?
“A. Yes, either he or one of the other officers — one of the deputies.
“Q. Did he ask you to come over there, or did he ask you to aid in the execution of the search warrant?
“A. I don’t recall. I don’t recall that. I didn’t make any notes.
“Q. All right. Did you go in and do any searching?
“A. No, sir, I did not.”

Appellant further contends that the district attorney commented in the presence of the jury “concerning the Defendant’s failure to testify,” in violation of Code of Alabama 1975, § 12-21-220. The occurrence that gave rise to appellant’s contention occurred before the trial commenced, before the jury was selected to try the case, and during the interrogation by the parties of the prospective jurors to aid them in the selection of the jury to try the case. After considerable interrogation of the jurors, defendant continued to question them as follows:

“MR. COOK: What I am saying is that when the State is finished with its case and the State says that the State rests and they said to the defendant that they can put on their testimony and the defendant says, ‘Judge, we have no evidence we are going to present_would that influence your decision in any way?’ “PANEL MEMBER: No, sir.
“MR. COOK: O.K.
“(Whereupon the jury panel member returned to his seat and Mr. Cook resumed voir dire questioning of the jury panel.)
“MR. COOK: If in the trial of this case the State does not meet their burden of proof and chose not to put the defendant on the stand and testify and give the State a chance to examine him would any of you attach any significance to that if I make that decision would that influence your decision in any way if I make that decision.
“MR. YOUNG: We object to that, to what his decision was.
“THE COURT: Overruled.
“MR. YOUNG: How would the jury know if this was his decision or the defendant’s decision?
“THE COURT: Overruled.
“MR. COOK: I want to make a motion now at the bench.
“THE COURT: Go ahead.
“(Following in front of bench)
“MR. COOK: I want to make a motion on the record. Based on the District Attorney’s comment I move, I move for a mistrial based on the District Attorney’s comment, it will prejudice the jury in a way that is not to be overcome in relation that if the defendant did not take the stand how would the jury know if it would be your decision and not the defendant’s decision not to testify? I say that this prejudices this defendant’s right to a fair trial and I move for a mistrial.
“THE COURT: The defendant’s counsel opened up the question. The motion for a mistrial is denied. Go ahead. Tom, you be quiet.
“(Whereupon Mr. Cook resumed voir dire examination of the jury panel.)
“MR. COOK: I ask the question one more time. I say if at the end of the State’s case, each of you understands that the State has a burden of proof of each element of the offense and the State has finished its case and rested and I make a decision that I don’t want to place the defendant on the stand. I don’t put any evidence on the stand and I choose to rest. I don’t think the State has met the burden of proof, would this influence your decision in any way?
“Would you tend to attach any significance to it_
“Now, you think about it and if it does let us know about it so the defendant can get a fair and impartial trial.
“Is there anybody that feels that would affect them in the slightest degree?
“Are any of you friends with, related to or do you know personally Guy Metcalf, Jr., Taylor Noggle, Robert Brock?”

The rest of the interrogation of the jurors by defendant’s counsel continues for seven pages of the transcript, but none of it related to the question now under consideration.

We need not attempt to settle the issue between the parties on appeal as to whether defendant exceeded reasonable bounds in his intensive and extensive interrogation of the jurors that may have justified the quoted comment of State’s counsel as a ground or part of his objection to the question defendant’s counsel had just asked the jurors and not as a comment “concerning defendant’s failure to testify.” Neither the State nor the defendant made the course of the trial judge easy, but the denial of defendant’s motion for a mistrial was not in error, in our opinion.

Appellant’s final insistence is that a delay in arresting defendant from June 28, 1978, until November 30, 1978, entitled him to a sustention of defendant’s oral motion to dismiss the indictment “due to unreasonable delay in the arrest of Defendant.” Even if there were a legal basis for a complaint that an unreasonable delay in arresting defendant is a barrier to a trial for the alleged commission of a crime, we see nothing unreasonable about the delay in the instant case. To have justified an arrest of defendant, it could well be argued that the particular substance should be examined by an expert, which of itself required considerable time. Furthermore, although the witness who bought the marijuana could identify the defendant in person, he did not know his name until the date of his arrest. Neither the facts nor the law supports appellant’s contention.

“The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long.” Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374, 386.

There is no claim, and no basis for any claim, that any delay in the arrest of defendant was caused by action of the prosecution in order to make it more difficult for defendant to defend himself against the charge. In the absence of such a claim, or reasonable basis therefor, no constitutional questions are involved in pre-arrest delays. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

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

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

AFFIRMED.

All the Judges concur.


text:
    Wayne Allen CAMPER v. STATE.
    6 Div. 227.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    J. Louis Wilkinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of robbery. The court fixed his punishment at imprisonment for twelve years and sentenced him accordingly.

During the closing argument of counsel for the State the following occurred:

“MR. NAIL [Counsel for the State]: Mr. Purvis [Counsel for Defendant] said, ‘Well, he had three weeks. He could go out here and find somebody that looked similar to Mr. Camper.’
“If you recall, Mr. Purvis asked the witnesses about the preliminary hearing and court appearances back in January, 1979.
“He has had a year. Why didn’t he go out and bring them in here? If he is so confident, he could find three people.
“MR. PURVIS: Just a minute, just a minute. I object. You know I have never said I would bring them in here, because I know I would be put in jail if I did.
“THE COURT: Well, he—
“MR. PURVIS: I object to it.
“THE COURT: He is permitted to reply in kind.
“MR. PURVIS: I did not argue that I would bring them in here.
“THE COURT: I overrule your objection, and the jury — I will leave it to you, Ladies and Gentlemen, to take the things as you heard them. I don’t tell you what you heard.”

Appellant argues that, as the only live issue in the case was as to the identity of defendant as the robber, after eyewitnesses as to his identity and another witness had been extensively and intensively interrogated by defendant out of the presence of the jury, the part of the argument of counsel for the State quoted above constituted “improper remarks” that implied that “the burden of proof is on the defendant” and that they were “prejudicial and grounds for reversal.”

It is to be noted from the copy of the transcript that the present criticism of the particular argument was not made a basis for the objection made by the defendant on the trial. Assuming that appellant is correct in his interpretation of the nature and effect of the particular argument, the situation now presented is similar to the one treated in Owens v. State, 291 Ala. 107, 112, 278 So.2d 693 (1973):

“Our holding affirming the trial court’s overruling of the objection is not to be understood as upholding such prejudicial argument, but is founded on the fact that the grounds stated in the objection to the argument did not invoke a ruling of the court based on the prejudicial effect of the argument; nor was this contention made a ground of the defendant’s motion for a new trial. Consequently, since we may review only the rulings of the trial court, we find that above objection was properly overruled. See Anderson v. State, 209 Ala. 36, 95 So. 171.”

Furthermore, we are not persuaded that the particular argument implied, or that there was a basis for an inference therefrom, that any burden of proof was on the defendant. The difference between the attorneys for the respective parties at the time of the court’s ruling was as to what counsel for defendant had previously said in his argument. We do not have before us what he said. It also appears that possibly there was some difference between the attorneys as to the probable implication, or probable or proper interpretation, of what defendant had said. At any rate, the trial court concluded that the State’s argument was a reply in kind to what counsel for defendant had argued. There is nothing before us to convince us that the trial court was incorrect in this conclusion.

The argument of appellant to the effect that the State, with the resources and personnel at its command, could more expeditiously and efficiently have produced persons for a lineup who resembled defendant than his attorney, with the aid of defendant and his friends, could have produced for the trial of the case, is an interesting theorem but falls far short of an axiom. A particular individual could well have an acquaintance with or knowledge of persons who resemble him that would furnish better information for their production than any information possessed by the prosecution.

We have searched the record for error and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Larry Charles WELCH v. STATE.
    6 Div. 235.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.

      William G. Veitch, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Montgomery, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of robbery and the court fixed his punishment at imprisonment for thirty years in the penitentiary and sentenced him accordingly.

The undisputed evidence shows that on April 14, 1979, at approximately 7:00 P.M., defendant robbed Charles Módica, the owner of the G. & D. Food Center in Bessemer, at the point of a gun. He caused the victim to empty the cash register and deliver approximately $700.00 taken therefrom to defendant. It appears also that two other men were robbing other attendants at the store about the same time. After obtaining the money, they backed out of the store threatening to shoot anyone who moved.

On direct examination as a witness for the State, Mr. Módica positively and unwaveringly identified defendant as the man who robbed him. In a lengthy cross-examination of the witness, and in cross-examination of other witnesses for the State, defendant showed that some time after the robbery the victim further identified defendant by a picture selected by him from a number of photographs shown him by officers and again identified defendant as the one who robbed him by picking him out of a lineup some time after the robbery.

Some confusion resulted and perhaps remains by reason of the testimony of another witness for the State, who identified defendant as the man who robbed him as a customer of the store as he was proceeding through a cashier’s line attended by a female cashier, whom, the witness said, the defendant also robbed.

Appellant contends, as defendant contended on the trial, that Modica’s in-court identification of defendant was tainted by the picture and lineup identifications of defendant. At the conclusion of the testimony, he raised the question by a motion to exclude the evidence for the State as to the identification of defendant, which motion was overruled.

Appellant’s position is not well taken for two distinct reasons.

There was no evidence of any suggestiveness or other impropriety in connection with the out-of-court identifications of defendant, either as to the pictures or as to the lineup. A conviction based on eyewitness identification at trial is not to be set aside merely because there has been a pretrial identification by photograph or by a pretrial lineup unless such pretrial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, 339 So.2d 601 (1976).

In addition, the in-court identification of defendant was clearly shown to have been based upon eyewitness observance of the robber at the time of the robbery. When an in-court identification is shown, as here, to have a source independent of any pretrial identification or confrontation, it is properly admitted in evidence. DeLoach v. State, Ala.Cr.App., 361 So.2d 19, writ quashed, 361 So.2d 21 (1977); Doss v. State, Ala.Cr.App., 333 So.2d 173 (1976); Speigner v. State, Ala.Cr.App., 369 So.2d 39, cert. denied, 369 So.2d 46 (1979).

Soon after the robbery, in aid of the officers in their efforts to determine the identity of the robber, Módica drew a picture of defendant as the robber. The picture drawn by Módica bears a remarkable resemblance to a photograph of defendant in the record, which indicates that whatever suggestiveness there was as to the identity of defendant was suggestiveness on the part of the victim and not suggestiveness on the part of the officers.

There was no error in admitting the in-court identification of defendant.

While cross-examining the last witness on the trial, a witness for the State, as to the photograph that Mr. Módica had selected from a number of photographs as a photograph of defendant, the following occurred:

“Q. Is this the photograph you showed Mr. Módica?
“A. Yes, sir.
“(Defendant’s Exhibit 1 was marked for identification.)
“MR. RUSSELL: I would like to introduce this.
“THE COURT: In without objection.
“(Defendant’s Exhibit 1 was admitted in evidence.)
“Q. (By Mr. Russell). Sergeant Price, do you have the other photographs you showed Mr. Módica?
“A. No, sir, I don’t.
“Q. Where are they?
“A. They would be in the files.
“Q. Can you obtain them or get them here?
“A. It would take a while to get them.
“Q. We would all like to see them. And, I would like to see them.
“MR. RUSSELL: Judge, I would like to ask that the photographs be produced.
“MR. TUCKER: Your Honor, we would respond, there has not been a subpoena sent out by the defense for this. We have the photograph of the defendant, and he is the one that wants the photo identification, not us.
“THE COURT: Gentlemen, this case has been set since October 30 [trial commenced December 11]. I’m not going to grant a continuance for anyone to get something that is not subpoenaed before this date.”

No further insistence was made by defendant as to a delay in the trial or for production of the other photographs. There was no showing by defendant to indicate that the production of the other photographs would have been of any benefit to defendant. The court was well within the province of its discretion in indicating that the case should not be continued for the production of the photographs. It appears, also, that probably no substantial injury to defendant resulted from the non-production of the photographs.

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

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

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Willie Claude HARRISON, alias v. STATE.
    7 Div. 707.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    G. Coke Williams of Williams, Williams & Norton, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Violation of Alabama Child Abuse Act; sentence: seven years imprisonment.

The State’s evidence was sufficient to support a finding that during the mid-morning hours of November 27, 1978, the appellant, under the pretense of bathing two-year-old Kristy Lynn Reaves, abused her by placing her in scalding water. The child suffered second degree and possibly third degree burns on her feet, legs, and buttocks. She was treated at a local hospital in Anniston for about forty-eight hours and then transferred to the Shrine Burn Hospital in Cincinnati, Ohio, for further treatment.

The child’s mother, Patricia Green, testified that she and her children were living with the appellant at his father’s mobile home. She stated that on the morning of the incident she was awakened by the appellant and asked him the whereabouts of her daughter. The appellant told her that he was bathing the child and would finish without her assistance. Mrs. Green heard the child scream and attempted to enter the bathroom where the child and the appellant were, but was restrained by the appellant who stated that he would take care of the situation. The appellant stated that he needed no help and sent Mrs. Green to the living room. Shortly thereafter the appellant entered the living room with the child. Mrs. Green inquired as to why the child had no shoes on. The appellant replied that the mother did not want to see, but she insisted. The child exclaimed, “Mommie, feet hurt.” Mrs. Green took the child, removed her socks, and discovered her feet had been burned. Within thirty to forty-five minutes of this discovery, the child was taken to a local hospital for treatment. Mrs. Green testified that while en route to the hospital the appellant threatened to harm both her and her other child if she connected him with the incident.

While at the hospital, Mrs. Green told Calhoun Deputy Sheriff M. L. Kirby that she had been bathing the child, and the child had accidentally turned on the hot water. Mrs. Green stated that she initially gave that version of the incident because she feared harm to herself and to her son who was still at the appellant’s residence.

Calhoun Deputy Sheriff Larry Amerson testified that upon arriving at the hospital with his partner, Deputy Sheriff Kirby, around 12:50 p. m. they talked to Mrs. Green. Deputy Amerson stated that he took some photographs of the child and then, with Deputy Kirby, talked to the appellant.

On voir dire examination, Deputy Amer-son stated that at the hospital Deputy Kirby read the appellant his Miranda rights and asked him to go downtown and make a statement. Amerson said this was done because the appellant had been present at the scene of the incident. At their office the appellant was again advised of his rights. The appellant signed a waiver of rights form and then made a statement which, while not incriminating, placed him with the child in the bathroom. After the proper voluntariness predicate was laid, the statement was admitted into evidence.

Appellant’s sister, Kathy Harrison, testified that around 11:00 a. m. on November 27 she was awakened by the crying of the child. She stated that she heard water running and the appellant telling the child to be quiet. Miss Harrison stated that after the appellant left the bathroom she entered and found the child standing in the bathtub shaking. She stated that the child got out of the tub and sat on the floor. Miss Harrison saw that the child’s feet had been burned as they were red and peeling. She then called to the appellant that the child was out of the bathtub and returned to her bedroom.

Dr. Louis Sellers testified that on November 27 he treated the child for burns. He stated that on that evening Mrs. Green changed her original account of the incident and he (pursuant to Code § 26-14-3) directed the nurses to contact the law enforcement authorities.

The State rested its case, and the appellant’s motion to exclude the State’s evidence was properly overruled.

The appellant testified in his own behalf and disputed Mrs. Green’s account of the incident. He testified that Mrs. Green, not he, was giving the child a bath. He stated that he was in the living room with Mrs. Green when his sister called from the bathroom. The appellant stated that he took the blame for the incident because Mrs. Green did not want her children to be taken from her. He testified that his statement taken by Deputy Kirby was based upon his assuming the responsibility for Mrs. Green and was false.

The only issue raised on appeal concerns itself with the omission in the indictment of the specific act or means by which the child was abused. Appellant contends that such an allegation is substantive in nature and that its omission requires reversal of this cause.

Omitting the formal parts, the indictment reads:

“Willie Claude Harrison, also known as William Claude Harrison, whose true name is to the Grand jury otherwise unknown, a person who had the temporary care, custody or responsibility for the supervision of Kristy Lynn Reaves, a child under the age of eighteen (18) years, willfully abused and willfully maltreated said child while said child was in his temporary care, custody or under his control.

Section 26-15-3, Code of Ala.1975 (Supp. 1979), states:

“A responsible person, as defined in section 26-15-2, who shall torture, willfully abuse, cruelly beat or otherwise willfully maltreat any child under the age of 18 years shall, on conviction, be punished by imprisonment in the penitentiary for not less than one year nor more than 10 years.”

If there is no indictment form for an offense set out in Code § 15-8-150, then an indictment which closely parallels the language of the statute creating the offense is generally valid. Worrell v. State, Ala.Cr.App., 357 So.2d 373, cert. denied, Ala., 357 So.2d 378 (1978); Manson v. State, Ala.Cr.App., 349 So.2d 67, cert. denied, Ala., 349 So.2d 86 (1977); Code § 15-8-23.

Pursuant to Code § 15-8-25, an indictment must state the facts constituting the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended. An indictment must likewise apprise the accused not only of the nature of the offense, but also of the particular act or means by which it was committed. Chambers v. State, Ala.Cr.App., 364 So.2d 416, cert. denied, Ala., 364 So.2d 420 (1978). See also: Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977). However, an averment of the means, although one of substance and not of form, is not a constituent or essential element of the offense. The omission of such would render an indictment merely voidable rather than void. Consequently, such a deficiency must be timely and specifically raised by demurrer. Gaines v. State, 146 Ala. 16, 41 So. 865 (1906); Whitt v. State, Ala.Cr.App., 370 So.2d 730, reversed on other grounds, Ala., 370 So.2d 736 (1978); Jeter v. State, Ala.Cr.App., 339 So.2d 91, cert. denied, Ala., 339 So.2d 95 (1976).

In the instant case, the record reveals that the appellant was arraigned on April 30, 1979, and entered a plea of not guilty. It was not until June 22, 1979, that the appellant filed a demurrer to the indictment which, on June 23, was “overruled and dismissed as being filed too late (after Plea to indictment).” In Stringer v. State, Ala.Cr.App., 372 So.2d 378, 380, cert. denied, Ala., 372 So.2d 384 (1979), we stated:

“Ordinarily one waives any irregularities in the indictment by appearing and pleading in the trial court, and a plea to the merits is considered as an admission of a valid indictment. Johnson v. State, 49 Ala.App. 389, 272 So.2d 597 (1973); Elliott v. State, 39 Ala.App. 314, 98 So.2d 618 (1957). ...”

We therefore find no error on the part of the trial court in overruling the appellant’s untimely demurrer.

AFFIRMED.

All the Judges concur.


author: PER CURIAM. PER CURIAM.

text:
    Charles Dwight MESSER, Appellant, v. STATE of Florida, Appellee.
    No. 49780.
    Supreme Court of Florida.
    Nov. 8, 1979.
    On Rehearing June 5, 1980.
    Theodore E. Mack, Asst. Rublic Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The decision and opinion rendered by the Court on April 26, 1979, are withdrawn.

This case was previously before the Court on appeal. Art. V, § 3(b)(1), Fla.Const. The sentence of death was vacated and the case remanded for a second sentencing trial. Messer v. State, 330 So.2d 137 (Fla.1976). The second sentencing proceeding resulted in a sentence of death and this appeal followed.

Subsequently, following the decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), this Court issued an order on June 16, 1977, requiring the trial judge to state whether he imposed the death sentence in consideration of any information not known to the appellant and to furnish this Court with any presentence investigation reports and other reports which were before him for consideration in imposing sentence.

On September 26, 1977, the trial judge filed a response stating that at sentencing he had before him a presentence investigation report and that it contained no information not known to the appellant at the time of sentencing. The response did not state whether a copy of the report was furnished to the appellant, nor was it accompanied by a copy of the report when filed with this Court.

Previously, on March 30, 1977, this Court had ordered the Parole and Probation Commission to furnish a copy of the presentence investigation report. The Commission’s response of April 5,1977 stated that it had no record of a presentence investigation conducted on the appellant.

A communication from the Clerk of the Circuit Court for Santa Rosa County, dated October 11, 1977, states that all reports before the court at sentencing were transmitted to this Court with the record on appeal. It specifically states that there was no presentence investigation ordered.

The appellant has moved that we require clarification of the trial judge’s response to our Gardner order. In light of the above-recited facts, we have decided that a clarification is necessary.

The trial court is directed to hold a hearing to determine whether the sentence of death was imposed in consideration of any information not disclosed to appellant or any reports not furnished to him prior to sentencing. The court will report its findings to this Court within sixty days of receipt of this order.

It is so ordered.

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

On Rehearing

PER CURIAM.

The Court having considered the trial judge’s response to our November 8, 1979, order directing a hearing on the question of a possible violation of the rule of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and the appellant’s motions in reference thereto, it is hereby concluded and adjudged that:

A hearing held to determine whether a sentence of death was imposed in consideration of any information not disclosed to the defendant is a critical stage of the criminal proceedings, at which the defendant is entitled to be represented by counsel.

Therefore, the trial court erred in concluding that there was no need for the appellant to have legal representation at the hearing.

When this Court, during the penden-cy of an appeal from a judgment imposing a sentence of death, orders a hearing on the issue of whether the sentence was imposed in consideration of any information not disclosed to the appellant, such hearing is a part of the appellate process and it is proper for appointed appellate counsel to represent the appellant at such hearing.

The trial court shall hold a further hearing to determine whether the sentence of death was imposed in consideration of any information not disclosed to the appellant or any reports not furnished to him prior to sentencing, and the Public Defender of the Second Judicial Circuit is hereby directed to represent the appellant at the hearing.

It is so ordered.

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


author: ADKINS, Justice.

text:
    INTERNATIONAL PAPER CO., Petitioner, v. Oscar McKINNEY, Respondent.
    No. 55995.
    Supreme Court of Florida.
    May 29, 1980.

      Lynn C. Higby and C. Richard Watson of Isler, Higby, Brown, Smoak & Watson, Panama City, for petitioner.
    Russell R. Stewart and J. Donelson Jones, Panama City, for respondent.
   ADKINS, Justice.

By petition for a writ of certiorari, International Paper Co. (hereinafter referred to as employer), has asked us to quash an order of the Industrial Relations Commission awarding attorneys’ fees. We have jurisdiction. Art. V. § 3(b)(3), Fla.Const.; § 440.27(1), Fla.Stat. (1977).

The basic question before the court is whether or not an employer, having initially denied compensation for temporary total benefits, is bound to pay an attorney’s fee on all subsequent benefits awarded to claimant, even when the subsequent benefits are paid voluntarily and timely.

In awarding attorneys’ fees, the judge of industrial claims relied upon Ford v. Cunningham-Limp Co., 203 So.2d 326 (Fla.1967). In Ford, the claimant sustained a compen-sable accident on August 12, 1959. The employer voluntarily paid temporary total and permanent partial benefits until January 20, 1965. On February 19, 1965, claimant filed a claim requesting resumption of temporary total disability and further benefits. An order was entered on May 12, 1965, finding that the claimant had not reached maximum medical improvement and that temporary total compensation was due. In October of 1965 the employer voluntarily began paying permanent total compensation. The claimant’s attorney filed a claim for additional attorneys’ fees based on the increased benefits. The judge of industrial claims awarded him additional fees stating that “the increased benefits were at least in part the direct result of the efforts of the claimant’s attorney.” Upon review, the commission reversed; this Court affirmed the order of the judge of industrial claims. In its opinion the Court said:

[T]he evidence supports the conclusion and finding of the deputy commissioner that the substantially increased award, although volunteered and consented to by the employer-carrier, was at least in part the direct result of the efforts and professional acumen of the claimant’s attorneys who had sustained the claimant’s right of recovery in the earlier hearing, and it was therefore error for the Full Commission to disturb the award made by the deputy commissioner, (emp. in original).

203 So.2d at 327.

In the case sub judice the claimant filed a claim on March 1,1972, seeking “temporary total, remedial treatment, attorneys’ fees and any and all other entitlements claimant may be entitled to under chapter 440, Florida Statutes.” A hearing was held on April 14,1972, at which time the claimant did not assert a claim for any permanent total benefits. In fact, the judge of industrial claims found that the claimant was seeking “temporary total, payment of outstanding medical bills, reimbursement of transportation costs, continued medical treatment, attorneys’ fees and costs.” The employer was ordered to pay temporary total disability and outstanding medical bills, to furnish additional medical treatment and was awarded attorneys’ fees and costs. The employer paid all benefits as ordered.

On June 6, 1975, the employer was notified that the claimant had reached maximum medical improvement. On June 23, 1975, the employer accepted the claimant as permanently and totally disabled, backdating the benefits to June 4, 1975. Benefits have been paid to claimant without interruption from June 6,1975, and no claim has been made for additional payments.

The employer initially contested the claim for temporary total compensation, but after the judge of industrial claims ordered temporary total to be paid, the employer voluntarily paid permanent total compensation as soon as permanent total could have been paid. The claimant’s attorney did not perform any additional services for the claimant after the initial hearing on the claim for temporary total benefits.

The sum of $1,300.00 was awarded initially. Subsequently the attorney filed a claim for attorneys’ fees and an order awarding additional attorney’s fees was entered on December 24, 1977. Upon appeal, this award was affirmed by the Industrial Relations Commission. This petition for writ of certiorari resulted.

Stated simply, the factual situation is as follows: An employer initially controverts a claim. The claim is allowed as to temporary disability and the claimant’s attorney is awarded a fee. The employer pays the temporary disability as ordered. When the claimant reaches maximum medical improvement, the employer voluntarily pays permanent disability within the twenty-one-day time limit. The claimant’s attorney seeks an additional fee based on the permanent benefits obtained. The judge of industrial claims ruled that the attorney was entitled to a fee. We disagree.

Our Court recently vacated a similar attorneys’ fees in United States Steel Corp. v. Green, 353 So.2d 86 (Fla.1977). In Green the employee suffered a job-related injury and filed a claim for temporary total or permanent partial disability benefits and “ ‘all other benefits available under the Workmens Compensation Act.” ’ 353 So.2d at 87. At the hearing, the employer contested the claim and the judge of industrial claims found the claimant had not reached maximim medical improvement. He awarded temporary total benefits and a fee of $1,200.00. On review, the Industrial Relations Commission affirmed the claimant’s entitlement to benefits, but concluded that he had reached maximum medical improvement. The case was remanded to the judge of industrial claims to fix the date of maximum medical improvement. On remand the judge of industrial claims fixed the date when the claimant had reached maximum medical improvement, ruled that the claimant was permanently and totally disabled, and awarded the claimant’s attorney a fee of $13,000.00. On certiorari this court vacated the award, stating that the employer never had notice that permanent disability was being sought since the claim did not specifically seek it. The application which claimed “all other benefits available under the Workmen’s Compensation Act” did not put the employer on notice-. The Court reasoned that “all other benefits” were incidental benefits under the act and were of lesser dignity than costs and did not give notice of a permanent total claim. The opinion states:

. [I]f either of Green’s assertions were engrafted into the workmen’s compensation law, every proceeding would require an employer to prepare and present a defense against a claim of permanent total disability, no matter how minor or temporary the injury giving rise to the claim. Moreover, employers could never agree to lesser awards or the need for temporary benefits at a first hearing, lest they later find themselves saddled with liability for permanent total disability benefits against which they had never defended.
Regarding the increase of attorney’s fees from $1,200 to $13,000, it is undisputed that Green’s counsel performed no uncompensated services between the time of the judge’s initial order awarding temporary total disability benefits and the subsequent award of permanent total disability benefits. Obviously the only basis on which the judge could have enlarged the award was by reference to the increase in benefits to the claimant from the new award for permanent total disability. U.S. Steel concedes that higher fees might be appropriately awarded where greater benefits are obtained for a claimant, but it suggests that an increase of these proportions is wholly unjustified. Again, we are compelled to agree with the company’s position.
We have previously condemned the practice of computing fee awards as a percentage of the ultimate benefits awarded to the claimant. An attorney’s fee is, after all, supposed to represent compensation for services rendered, and although the Code of Professional Responsibility recognizes that “results obtained” may be taken into account, it was capricious to find that identical services might be worth $1,200 or $13,000 depending upon the mathematics of a workmen’s compensation award. In setting a proper fee on remand, and in future cases, the judges and the Commission will want to scrutinize testimony and affidavits relating to attorney’s fees more carefully, to avoid the imbalance between services and results which is so patent here.

353 So.2d at 88-89. (Footnotes omitted).

In the case sub judice claimant made no specific claim for permanent total disability. Notice to the employer by the boilerplate “any and all entitlements” is not sufficient notice of a claim for permanent total disability. The employer voluntarily began payment of permanent total compensation within twenty-one days of receiving notice the claimant had reached maximum medical improvement. At the time of the initial hearing on liability for temporary total benefits, the claimant had not reached maximum medical improvement and could not have received permanent total benefits. While the employer contested the initial liability for temporary total compensation, it did not contest the permanent total award. An employer’s contest of a claim at the beginning of a case does not lock the employer into paying attorneys’ fees on all subsequent benefits paid if the employer voluntarily and timely pays the additional benefits.

The employer was never given adequate notice that permanent total benefits were being claimed, for the “shotgun” claim is insufficient notice of permanent total claim. Also claimant’s attorney performed no additional services for the claimant after the initial hearing.

United States Steel Corp. v. Green, supra, requires that the order of the judge of industrial claims be reversed. Insofar as it conflicts with this decision, we recede from Ford v. Cuningham-Limp Co., supra, and follow the reasoning of United States Steel Corp. v. Green, supra.

The order affirming the award of attorneys' fees is quashed and the cause is remanded to the First District Court of Appeal with instructions to further remand same to the judge of industrial claims for the purpose of entering an order denying an award of additional attorneys’ fees.

It is so ordered.

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


author: BOYD, Justice.

text:
    TELEPROMPTER CORPORATION et al., Petitioners, v. Paula F. HAWKINS et al., Respondents.
    No. 56291.
    Supreme Court of Florida.
    May 29, 1980.

      The Law Offices of Hogan & Hartson, Washington, D. C., and William A. Gillen, Edward M. Waller, Jr., and David C. Shobe of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Teleprompter Corp.
    George Maxwell, III, of Rossetter & Maxwell, Melbourne, for American Television and Communications Corp.
    Prentice P. Pruitt, Barrett G. Johnson and Norman H. Horton, Jr., Tallahassee, for Florida Public Service Commission.
    C. Roger Vinson of Beggs & Lane, Pensacola, for Gulf Power Company, intervenor.
    W. Robert Fokes of Mahoney, Hadlow & Adams, Tallahassee, for Florida Cable Television Ass’n, amicus curiae.
    Lee L. Willis and James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Tampa Elec. Co., amicus curiae.
   BOYD, Justice.

This cause is before us to review an order by the Public Service Commission certifying that it has authority to regulate “pole attachment” agreements. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Pole attachment agreements are lease agreements between utilities and cable television companies which authorize the latter to use the excess space on utility poles for the purpose of providing their customers cable television service. Because the utilities have superior bargaining position by virtue of their ownership and control over utility poles along with the accompanying easements, Congress granted the Federal Communications Commission (FCC) the authority to regulate these agreements except where such matters are regulated by the state. Each such state needed to certify that:

(A) it regulates such rates, terms, and conditions; and
(B) in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of cable television services, as well as the interests of the consumers of the utility services.

Communications Act Amendments of 1978, Pub.L.No. 95-234, (47 U.S.C. § 224(c)(2)).

In response to this impending federal regulation, the commission sent notice of certification to the FCC. Subsequently, the commission gave notice and called for briefs from interested parties, following which it entered an order declaring that it has the authority to regulate pole attachment agreements. The petitioners claim that the commission does not have authority to regulate the agreements or consider the interests of cable television subscribers. We agree.

Several years ago the commission held that it could not require utilities to enter into pole attachment agreements. Southern Bell Tel. & Tel Co., 65 PUR 3d 117 (Fla.Pub.Serv.Comm’n.1966). In doing so it reasoned:

In 1913, when the Florida legislature enacted a comprehensive plan for the regulation of telephone and telegraph companies in this state, and conferred upon the commission authority to administer the act and to prescribe rules and regulations appropriate to the exercise of the powers conferred therein, the science of television transmission and the business of operating community antenna television systems were not in existence. The 1913 Florida legislature, therefore, could not have envisioned — much less have intended to regulate and control — the television transmission facilities and services with which we are concerned. This is exactly the same kind of situation described by the supreme court of Florida in practically identical language in its opinion in the case of Radio Teleph. Communications v. Southeastern Teleph. Co. (Fla.1964) 57 PUR 3d 136, 170 So.2d 577, when it held that this commission did not have jurisdiction over radio communication service, notwithstanding the interconnection of such radio service with a regulated utility’s telephone landline. As the court pointed out in that case, the legislature of Florida has never conferred upon this commission any general authority to regulate “public utilities.” Traditionally, each time a public service of this state is made subject to the regulatory power of the commission, the legislature has enacted a comprehensive plan of regulation and control and then conferred upon the commission the authority to administer such plan. This has never been done in so far as television transmission and community antenna television systems are concerned. Community antenna television systems have never been defined as “public utilities” by the legislature, nor is there anything in this record which would justify the conclusion that such systems are vested with a public interest; in actual fact, they may be of such character as to justify public regulation and control. That, however, is a matter for determination by the state legislature. We must conclude on the basis of the record before us, and the present status of the laws of this state, that the Florida Public Service Commission has no jurisdiction or authority over the operations of community antenna television systems and the rates they charge, or the service they provide to their customers.

Id. at 119-20. See also, Twin Cities Cable Co. v. Southeastern Tel. Co., 200 So.2d 857 (Fla. 1st DCA 1967).

Since that decision there has been no relevant change in the commission’s statutory grant of jurisdiction. Therefore the reasoning in that decision is still relevant. No reason was given for asserting jurisdiction other than to preempt the FCC from regulating pole attachment agreements. Although we share the concern about federal intervention in an area the state may be better equipped to handle, such concern is not enough to extend the Public Service Commission’s jurisdiction. Only the legislature can do that.

We therefore quash the commission’s order.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


author: McDonald, justice.

text:
    Dawn ROLLINS, Petitioner, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Respondent.
    No. 58405.
    Supreme Court of Florida.
    May 30, 1980.

      A. B. Freed and Jerold Feuer, Miami, and Fletcher N. Baldwin, Gainesville, for petitioner.
    George W. Chesrow of Walton, Lantaff, Schroeder & Carson, Miami, for respondent.
    Steven P. Kronenberg of Pyszka, Kessler & Adams, Joseph H. Lowe and Claudia B. Greenberg of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for Hartford Acc. and Indem. Co., amici curiae.
    Mary Ann Stiles, Tallahassee, for Associated Industries of Florida, amici curiae.

      Michael J. Rudicell and Dan F. Turnbull, Jr., Tallahassee, for State of Florida Dept, of Labor and Employment Sec., amici curiae.
    Joseph C. Jacobs, Thomas M. Ervin, Jr. and Robert King High, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for American Ins. Ass’n, amici curiae.
   McDonald, justice.

In a certified question, the First District Court of Appeal requested that this Court decide whether the legislature can assign review of all orders of workers’ compensation deputy commissioners and former judges of industrial claims to the First District Court of Appeal irrespective of where the compensation hearing was held. We have jurisdiction, and we hold that it can.

Dawn Rollins, residing in Dade County and employed there by Southern Bell, suffered an injury deemed compensable, after hearing, by a JIC’s order. The hearing was held and the order was issued in Dade County. The Industrial Relations Commission affirmed the order on February 6, 1979, and on July 31, 1979 the JIC adjudicated Rollins permanently and totally disabled. Southern Bell appealed this ruling to the IRC. On October 1, 1979 the IRC, pursuant to section 440.271, Florida Statutes, transferred the case to the First District Court of Appeal.

Rollins moved to dismiss the appeal, alleging a lack of jurisdiction in that court and specifically charging the unconstitutionality of the statute which authorizes the First District Court of Appeal to hear all such cases. In an oral ruling from the bench, the sitting three-judge panel denied the motion and upheld the statute.

As her principal attack on the statute’s constitutionality, Rollins claims that article V, section 4 of the Florida Constitution describes a scheme of district court jurisdiction whereby each district court may review orders arising only in its respective territory. She claims, therefore, that there must be some geographical nexus between her case and the reviewing court. She states that, because Dade County was the situs of her injury, residency, employment, and compensation hearings, the only proper district court to hear the appeal is the Third District Court of Appeal.

Without deciding whether the constitution requires such a nexus, we dispose of petitioner’s argument by recognizing that there is a geographical relationship in the present case. The workers’ compensation system is a legislatively created mechanism which supplants employees’ common law causes of action against employers for injuries occurring during the course of employment. In implementing the system, the legislature removed the mechanics of compensation for such injuries from the court system and placed it in the executive branch and the Department of Labor and Employment Security (department), which is headquartered in Tallahassee. Consequently, since the enactment of the workers’ compensation statute, a worker no longer has a cause of action which would arise in the place of injury. He now has an administrative remedy administered and supervised by the department in Tallahassee. If one insists, as does petitioner, on using the inapplicable language of the common law, we would say that the “cause of action” in a workers’ compensation case “arises” in the department and, therefore, in Tallahassee. The First District Court of Appeal, therefore, is a permissible choice among the district courts to hear such appeals.

While a hearing, if required, in a workers’ compensation case must be held in the county in which the injury occurred, that location is by legislative decision and not by constitutional mandate. We can assume, then, that the legislature could require all such hearings to be in Tallahassee. The grace shown by the legislature in decentralizing hearings, however, does not preclude that body from deciding not to decentralize appeals from such hearings.

The legislative assignment of these appeals could not stand in the face of a specific assignment of these appeals by the constitution. The constitution, however, is silent as to workers’ compensation cases. We do not construe section 4(b)(2) of article Y to require that all district courts of appeal participate in the review of a particular administrative agency’s action where there is a rational nexus between that action and a particular appellate district. We can find no constitutional impediment to the assignment of workers’ compensation appeals to the First District Court of Appeal.

We find no merit to petitioner’s other arguments. Section 440.271 is not a prohibited special law under article III, section 11, nor does it violate the procedural requirements of article V, section 9. The right to vote for retention or removal of the appellate judges in one’s district is not abrogated, and the statute bears a rational relation to a legitimate objective; it does not violate equal protection.

We note petitioner’s concern that, by our holding, the legislature could set up a system of specialized courts. This decision does not go that far. The Court merely recognizes the nature of the workers’ compensation system with its supervision in Tallahassee and notes its special relationship to the First District Court of Appeal. Whether the legislature could have assigned these appeals to any other district court remains to be answered another day.

The certified question is answered in the affirmative and this case is remanded to the District Court of Appeal, First District, for further proceedings.

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

      . The certified question is:
      Whether section 46(1), chapter 79-40, Laws of Florida, providing for review of worker compensation orders of Judges of Industrial Claims and Deputy Commissioners by the First District Court of Appeal, effective 1 October 1979, is constitutional?

        Southern Bell Tel. & Tel. Co. v. Rollins, 1980 Fla.L.W. 163 (Fla. 1st DCA 1979) (order).

      . Art. V, § 3(b)(3), Fla.Const. (1976).

      . This section reads as follows:
      Appeal of order of deputy commissioner— After September 30, 1979, review of any order of a deputy commissioner entered pursuant to this chapter, shall be by appeal to the District Court of Appeal, First District. On October 1, 1979, all appeals pending before the Industrial Relations Commission shall be transferred to the District Court of Appeal, First District, and the court shall act on such appeals.

      . Southern Bell Tel. & Tel. Co. v. Rollins, 1980 Fla.L.W. 257 (Fla. 1st DCA Dec. 12, 1979); 1980 Fla.L.W. 163 (Fla. 1st DCA Dec. 13, 1979) (order); 1980 Fla.L.W. 209 (Fla. 1st DCA Jan. 23, 1980) (memorandum of R. Smith, J.).

      . Dade County (which is in the eleventh judicial circuit) is in the Third Appellate District. § 35.04, Fla.Stat.

      . § 440.25(3)(b), Fla.Stat. This subsection provides for hearing outside the county in which the injury occurred upon agreement of the parties and authorization of deputy commissioner in the county of injury.

      . Art. V, § 10, Fla.Const.


author: ORFINGER, Judge. ORFINGER, Judge.

text:
    R. W. KING CONSTRUCTION COMPANY, INC., and United States Fidelity and Guaranty Company, Appellants, v. CITY OF MELBOURNE, etc., Appellee.
    No. 78-2010/T4-208.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    On Rehearing May 28, 1980.
    Rehearing Denied June 5, 1980.
    Thomas E. Thoburn, Cocoa Beach, for appellants.
    Elting L. Storms of Storms, Pappas & Krasny, P. A., Melbourne, for appellee.
   ORFINGER, Judge.

Defendants R. W. King Construction Company, as contractor, and United States Fidelity and Guaranty Company, as surety, appeal a final judgment for $49,131.94 entered in favor of plaintiff, City of Melbourne, based on a jury verdict, plus an award of $21,700 as attorney’s fees. They contend that the jury verdict was in error and clearly demonstrates a misapprehension of the evidence; that the trial court erred in awarding attorney’s fees contrary to Sec. 627.756, Florida Statutes (1975) and further erred in including therein an award for extraordinary fees.

At the conclusion of the evidence, defendants requested a special verdict form by which the jury would determine whether defendants had breached two separate change orders and, if so, apportion the damages to each. The jury found a breach of contract as to each change order and awarded damages on each breach. Defendants contend that the jury misapprehended the evidence in making its award, but the trial judge found no impropriety in the verdict and neither do we. As found by the trial judge, the change orders in question are part of a single contract and the jury had a right to apportion the damages between the change orders, so long as the total award was supported by substantial, competent evidence and did not affect the substantial rights of the parties. Cf. Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1978).

The contention as to attorney’s fees warrants further discussion. By stipulation of the parties the extent of the legal services was submitted by affidavit and the value determined by the court. Appellant contends first, that the court erred in not limiting the award of fees to twelve and one-half per cent of the judgment in accordance with Section 627.756(2), Florida Statutes (1973), and next, that there is no basis in the award of $4,000 for “extraordinary services.” The contractual agreement between the parties was that the contractor and its surety would indemnify and save the City harmless of and from “ . all costs, expenses and damages, including litigation costs and attorney’s fees arising out of or in connection with . . . ” any default by the contractor. We construe the contractual obligation to be one for the payment of reasonable attorney’s fees and we hold that the parties are free to contract for reasonable attorney fees rather than statutory attorney fees. Joseph v. Houdaille-Duval-Wright Company, 213 So.2d 3 (Fla. 3d DCA 1968).

This holding does not resolve the question of the propriety of the award of fees for extraordinary services. The affidavit submitted by appellee’s counsel outlined in detail the services rendered and the time spent, but no attempt was made to point out the distinction between ordinary and extraordinary services. Neither was any other evidence presented to the court addressing that subject. In awarding attorney’s fees, a court can make an award for specific extraordinary services, but to justify such award there should be evidence presented showing the nature and extent of services considered to be extraordinary and the value thereof, and the court should make a finding as to the nature of such extraordinary services and their value. No such showing was made here, nor did the court in its order distinguish between the ordinary and extraordinary services. In re: Lieber’s Estate, 103 So.2d 192 (Fla.1958); In re: Estate of Lunga, 298 So.2d 420 (Fla. 3d DCA 1974).

The final judgment is affirmed as to the award of damages to appellee and as to the award of attorney’s fees totalling $17,700, but is reversed as to the allowance of $4,000 for extraordinary services.

AFFIRMED in part and REVERSED in part.

COBB and SHARP, JJ., concur.

ON REHEARING GRANTED

ORFINGER, Judge.

Appellee suggests that our reversal of the award of $4,000 for extraordinary attorney’s fees was based upon the erroneous premise, as stated in the original opinion, that no evidence other than the affidavit of appellee’s attorney was submitted to the trial court. We did make that statement in the original opinion and we overlooked the order entered by the trial court which states that the court has considered the affidavit and the “. . . testimony of the expert witnesses in regard to a reasonable attorney’s fee presented by plaintiff and defendants . . . ”

It is made to appear that the testimony taken before the court was not reported, so no transcript of it appears in the record on appeal. Since evidence was presented to the trial judge and since his findings based on disputed evidence come to us with a presumption of correctness, when no transcript of the proceedings pertaining to the disputed issue is present in the record, the appellate court must presume that the trial court ruled correctly. McClosky v. Martin, 56 So.2d 916 (Fla. 1952); Hall v. Bass, 309 So.2d 250 (Fla. 4th DCA 1975).

We therefore recede from that portion of our original decision which reversed the award of $4,000 for extraordinary attorney’s fees, and we affirm the judgement below in its entirety.

AFFIRMED.

COBB and SHARP, JJ., concur.

      . § 627.756(2): “Section 627.428 (attorney fee) shall also apply as to suits brought by owners against a surety insurer under payment or performance bonds written by the insurer under the laws of Florida to indemnify such owners against the pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiffs attorney shall not be more than twelve and one-half per cent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation


author: COBB, Judge. COBB, Judge.

text:
    In the Interest of P. S., R. S. and R. S., minor children, Appellant, v. STATE of Florida, Appellee.
    No. 79-423/T4-422.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    After Remand June 18, 1980.
    James R. Auffant, Legal Aid Society of the Orange County Bar Association, Inc., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Max Rudmann, West Palm Beach, and Michael Barnette, Daytona Beach, Asst. Attys. Gen., for appellee.
   COBB, Judge.

The natural mother appeals an order permanently committing her children to the Department of Health and Rehabilitative Services for the purpose of subsequent adoption. Section 39.41(l)(d), Florida Statutes (1979), authorizes a trial court to permanently commit a child to the department for subsequent adoption if the court finds that the parent has abandoned, abused, or neglected the child; and finds that it is manifestly to the best interest of the child to do so. According to the Florida Juvenile Justice Act:

“Abandoned” means a situation in which a parent who, while being able, makes no provision for the child’s support and makes no effort to communicate with the child for a period of 6 months or longer. If a parent’s efforts to support and communicate with the child during such a 6-month period are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.
§ 39.01(1), Fla.Stat. (1979) (emphasis added).

In its findings of fact and conclusions of law, the trial court apparently construed the statutory definition of abandonment to also take into consideration the case of a parent who is unable to provide for the child’s support or effectively communicate with the child, when the court stated:

The court then finds, based on these facts, that there has been within the meaning of the statutory definition just read an abandonment or neglect, involuntary though it might be on the part of Mrs. Dunn, (emphasis added;.

We read the qualifying phrase “while being able” to exclude a situation of involuntary abandonment. It is not clear whether the trial judge found an abandonment as defined in the statute. Accordingly, we relinquish jurisdiction to the trial court for sixty days with directions to make a specific finding of whether there was or was not abandonment, abuse, or neglect within the contemplation of the statute. Due to the ambiguity in the trial court’s finding, we do not decide at this time whether there is sufficient evidence to support a finding of abandonment as defined in the statute.

ORFINGER and SHARP, JJ., concur.

AFTER REMAND

COBB, Judge.

By opinion filed April 23,1980, this Court relinquished jurisdiction to the trial court with directions to make a specific finding of whether there was abandonment, abuse, or neglect within the contemplation of section 39.01(1), Florida Statutes (1979). In response, the trial court has filed herein an amended order with findings of fact.

The amended order, unlike the original order entered in this cause, comports with the statutory definition of “abandonment,” and the trial court’s evidentiary finding in this regard is supported by the record. The trial court’s amended order is therefore

AFFIRMED.

ORFINGER and SHARP, JJ., concur.


text:
    Ernie SGRIGNUOILI, Trustee, Appellant, v. Maurice BARAKAT, Appellee.
    No. 79-1483.
    District Court of Appeal of Florida, Third District.
    May 6, 1980.
    Rehearing Denied July 2, 1980.

      Krongold & Bass and Paul H. Bass, Coral Gables, for appellant.
    Layne & Brill and Michael Marder, Miami, for appellee.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Ernie Sgrignuoli, who was the plaintiff below in a specific performance action involving the sale of land, appeals an order of the trial court granting the defendant Maurice Barakat’s motion for judgment on the pleadings. The decretal portion of the order under review states: “ORDERED AND ADJUDGED that Defendant’s Motion for Judgment on the Pleadings be hereby granted.”

We have recently held, based on a long line of authority, that an order “which merely grants a motion — and does not go further and actually dismiss the complaint, the cause, or a party, or enter judgment for the movant — is nothing more than an interlocutory one which cannot provide the foundation for a claim of res judicata.” Donnell v. Industrial Fire & Casualty Co., 378 So.2d 1344, 1346 (Fla. 3d DCA 1980) and cases collected. The order in the instant case merely grants a motion for judgment on the pleadings, but does not dismiss the complaint, the cause, or a party, or enter judgment for the movant. As such, it is an interlocutory, rather than a final order.

Our review of Fla.R.App.P. 9.130 reveals that an order granting a motion for judgment on the pleadings is not one of the non-final, interlocutory orders which are reviewable by appeal in this court. See Art. V, § 4(b)(1), Fla.Const. Accordingly, we sua sponte dismiss the instant appeal for lack of jurisdiction.

Appeal dismissed.


author: DAUKSCH, Chief Judge.

text:
    MARINE MIDLAND BANK CENTRAL, a New York Corporation, Appellant, v. Arthur J. COTE and Elizabeth R. Cote, and Harvey C. Altes, Appellees.
    No. NN-77/T1-53.
    District Court of Appeal of Florida, Fifth District.
    May 14, 1980.
    Rehearing Denied June 19, 1980.

      David A. Burt of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., Daytona Beach, for appellant.
    Joseph T. Garlovsky, Daytona Beach, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from an order awarding attorney’s fees in an indemnity contract case. The question on appeal is whether the trial court exceeded its authority to act in the case after a mandate was issued in a prior appeal. We hold that the trial court went beyond the limits allowed by the mandate and thus we reverse the order awarding attorney’s fees.

This matter began as a suit alleging wrongful repossession of a motor vehicle by a bank and its agent, the repossessor. Apparently, Cote owed Marine Bank for an automobile and defaulted in payments, so the bank hired Altes to go and get the car. Altes got the car and Cote sued the bank and Altes for trespass. Cote won a verdict against the bank and Altes and the trial court entered judgment for $2,500.00 compensatory and $2,500.00 punitive damages. Judgment was also entered for Altes in his cross-claim against the bank. That cross-claim action was based upon the allegation that the bank had agreed to hold harmless or indemnify Altes in any action arising out of his services in taking possession of the automobile. The judgment for Altes against the bank was for $5,000.00 —the exact amount of the judgment for Cote in the trespass action. There was a claim for attorney’s fees for Altes against the bank in the cross claim but no judgment other than the $5,000.00. Altes and the bank appealed the Cote judgment and it was reversed but Altes did not appeal his judgment against the bank, which judgment failed to award him attorney’s fees.

After the mandate was issued in the appealed case, the trial court entered an “Amended Order and Final Judgment” awarding attorney’s fees from the bank to Altes. This is the appealed order here. When a case is appealed and the appellate court acts by issuing its mandate, the trial court must follow the dictate of the mandate and should not stray from it. The parties have the right to appeal any matter by which they may be aggrieved and their failure to do so acts as an acceptance of the propriety of the matter. If no appeal is taken on one point but the case is appealed on another point, then the first point becomes “law of the case" and upon a reversal that law of the case remains as correct and cannot be revisited. Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976).

Here the appellee, Altes, failed to appeal the judgment in the cross-claim which did not award him attorney’s fees against the bank and under the general dictates of Airvac, he is foreclosed from bringing up the matter for reconsideration; because he failed to speak up in the first appeal, he must forever hold his peace. See Wingold v. Horowitz, 382 So.2d 377 (Fla. 3d DCA 1980).

The amended order awarding attorney’s fees to Altes from Marine Bank is reversed. In all other respects, the Amended Order and Final Judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

COBB and UPCHURCH, JJ., concur.

      . Marine Midland Bank-Central v. Cote, 351 So.2d 750 (Fla. 1st DCA 1977).


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Michael PUCKETT, Appellee.
    No. 79-2026.
    District Court of Appeal of Florida, Second District.
    May 16, 1980.
    Rehearing Denied June 19, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Myron J. Mensh, St. Petersburg, for ap-pellee.
   HOBSON, Acting Chief Judge.

The State of Florida appeals from an order granting Michael Puckett’s motion to dismiss with prejudice.

On August 2, 1979, Puckett, a seventeen-year-old, was taken into custody for the burglary of a dwelling. He was held in detention at the juvenile facilities from August 2, 1979 until August 23, 1979, at which time he was released pursuant to an order of the court. On September 28, 1979, an information was filed charging Puckett with burglary of a dwelling. On October 17, 1979, Puckett filed a motion to dismiss with prejudice on the ground that the information was not timely filed. The motion was granted, and the State appealed.

Puckett’s motion to dismiss was based on Sections 39.04(2)(e) and 39.05(6), Florida Statutes (1979). Section 39.04(2)(e) allows the state attorney to file a petition for dependency, a petition for delinquency or, in certain cases, when the child is 16 or 17 years old, an information. Section 39.05(6) provides that a petition alleging delinquency will be dismissed with prejudice if not filed within 45 days from the date that the complaint was referred to the intake office of the Department of Health and Rehabilitative Services. Puckett contends that Section 39.05(6) existed prior to the amendment of Section 39.04(2)(e), permitting in-formations to be filed against 16 or 17 year-old juveniles. He submits that the use of the word “petition” alleging delinquency in Section 39.05(6) must, subsequent to the amendment in 1978, include informations. We disagree.

An examination of the history of Sections 39.04 and 39.05 reveals that both statutes were amended by Chapter 78 — 414, Laws of Florida. Section 39.04(2)(e)(4) was amended to allow the State’s attorney to file an information when in his judgment and discretion the public interest requires that adult sanctions be imposed on a 16 or 17 year-old juvenile. Section 39.05(6) was amended to allow the State 45 days, rather than the previous 30 days, from the date the complaint was referred to the intake office to file a petition alleging delinquency. This section provides that if the petition is not filed within 45 days it will be dismissed with prejudice.

Section 39.05 is entitled “Petition” and subsection 6, by its terms, applies only to a petition. We believe that had the legislature intended that Section 39.05(6) apply to the filing of an information, it would have so amended subsection (6). Since Section 39.05(6) expressly states that it applies to a petition, it should not be read to apply to an information.

Accordingly, the order granting Puckett’s motion to dismiss with prejudice is reversed, and the case is remanded to the trial court with directions to reinstate the information.

REVERSED and REMANDED.

BOARDMAN and RYDER, JJ., concur.