author: HOLMES, Judge.

text:
    C. Paul GRAHAM v. UNIVERSITY CREDIT UNION.
    Civ. 2911.
    Court of Civil Appeals of Alabama.
    March 3, 1982.

      David A. Sullivan, Birmingham, for appellant.
    Jesse P. Evans, III, and Douglas L. Key, Birmingham, for appellee.
   HOLMES, Judge.

This is an appeal from the trial court’s order denying a motion to set aside a default judgment. The appellee has moved to dismiss the appeal. We deny the appellee’s motion and affirm the order of the trial court.

Appellant, C. Paul Graham, was allegedly a guarantor on a promissory note payable to the appellee, University Credit Union. The credit union commenced an action against Graham for $9,458.72 due upon the note when the primary debtor was adjudicated a bankrupt. Graham failed to appear or otherwise defend in this action.

A default judgment was entered against Graham and in favor of the credit union in March, 1980. Thereafter, Graham paid the judgment.

Eleven months after the rendition of the default judgment and subsequent to the payment of the judgment, Graham filed a counterclaim and a rule 60(b), A.R.C.P., motion to have the default judgment set aside. The trial court held a hearing on Graham’s motion and, on April 23,1981, an order was entered denying the rule 60(b) motion and dismissing Graham’s counterclaim.

On April 28, Graham filed a motion to reconsider the denial of the rule 60(b) motion. A motion to reconsider the denial of a rule 60(b) motion may clearly, if not otherwise, be made at any time prior to the running of the time for appeal. 7 Moore’s Federal Practice ¶ 60.28[3]. The trial court has the authority to entertain a motion to reconsider a motion requesting relief from default judgment. Havel v. Dawkins, 412 So.2d 800 (Ala.Civ.App. February 3, 1982). The time for appealing the motion to reconsider begins to run on the date the trial court enters the order denying said motion. Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (Ala.1977).

In the instant action, Graham filed his motion to reconsider only five days after his rule 60(b) motion was denied. The trial court heard arguments on the motion to reconsider and reviewed an affidavit offered by Graham in support of the motion. The trial court entered an order denying the motion to reconsider on June 19.

Graham filed his notice of appeal to this court on July 21, stating in pertinent part:

NOTICE OF APPEAL TO THE COURT OF CIVIL APPEALS
Notice is hereby given that C. Paul Graham Jr., M.D., appeal(s) to the above court from the (final judgment) wherein the trial court denied defendant’s motion to vacate default judgment and dismissing his counterclaim with prejudice, which was ordered by the court on April 23, 1981, and the court having considered said motion for reconsideration, along with the legally competent and material portions of the affidavit of Dr. C. Paul Graham, Jr., which was filed with the court on June 15, 1981, and the court having considered all of the foregoing, it is ordered and adjudged that said motion for reconsideration is hereby overruled and denied. (Emphasis supplied.)

APPELLEE’S MOTION TO DISMISS THE APPEAL

The appellee credit union contends that the notice of appeal specifies the April 23 order as the judgment from which Graham is now appealing. Consequently, the credit union claims, the appeal is untimely since it was filed more than forty-two days after the rendition of the April 23 order.

We disagree with the credit union’s contention. Though the above referenced notice of appeal is not a paragon of clarity, it is sufficient to invoke the jurisdiction of this court. A notice of appeal need only contain a simple statement indicating the judgment from which the appeal is being taken. Edmondson v. Blakely, 341 So.2d 481 (Ala.1976).

In the instant action, the time for taking an appeal from either the default judgment or the April 23 order denying the motion to set aside the default had expired long before the notice of appeal was filed on July 21. Therefore, the June 19 order denying the motion to reconsider the denial of the motion to set aside the default was the only order from which the appeal could have been taken. Cockrell v. World’s Finest Chocolate Co., supra.

Graham’s notice of appeal from the June 19 order was timely filed on July 21. Even though the notice of appeal is imprecise, it is sufficient to put the credit union on notice that Graham is appealing from the June 19 order denying his motion to reconsider. Harbin v. State, 397 So.2d 143 (Ala. Civ.App.), cert. denied, 397 So.2d 145 (Ala.1981). Therefore, for the reasons indicated, we decline to dismiss the appeal and will review the trial court’s order of June 19.

DENIAL OF THE MOTION TO RECONSIDER THE RULE 60(b)(4) MOTION

An appeal of an order denying a motion made pursuant to rule 60(b) presents for review the correctness of the order rather than the correctness of the final judgment which the movant seeks to have set aside. Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975).

At the outset we note the instant motion is a rule 60(b)(4) motion, to wit, a motion to set aside a void judgment. A reading of the motion and the brief of appellant clearly reveal this fact.

There is no discretion on the part of the trial court on a rule 60(b)(4) motion for relief. If the judgment is void, it must be set aside; if it is valid, it must stand. Therefore, the only question presented to us is whether the judgment is void. Wonder v. Southbound Records, Inc., 364 So.2d 1173 (Ala.1978).

Graham, through able counsel, contends the motion to reconsider should have been granted because the default judgment was void. He presents three grounds in support of his position:

I. The Credit Union did not file an affidavit as required by section 5-19-11, Code of Alabama (1975) (the Mini Code);

II. The trial court did not have the authority to enter a default judgment because there had been no prior entry of default pursuant to 55(a), A.R.C.P.; and

III. The Credit Union failed to file a written motion requesting a default in accordance with rule 7(b)(1), A.R.C.P.

I

Graham first contends the default judgment is void because certain jurisdictional requirements of the Alabama Mini Code were disregarded. Specifically, he contends the credit union failed to file an affidavit pursuant to section 5-19-11, and therefore the court was prohibited from entering a judgment.

The statute in question, section 5-19-11, provides:

No creditor under this chapter shall bring an action on any debt for collection, and no judgment by default or otherwise shall be entered until the creditor shall file an affidavit stating that
(1) There has not been a violation of the provisions of this chapter, and
(2) The debtor, if a resident of this state, on information and belief of creditor is a resident of the county in which the action is filed.
If such violation exists or if the debtor is not a resident of the county in which such action is filed, the action shall be abated.

The credit union does not deny that it failed to file an affidavit in compliance with the statute. However, the credit union contends that a judgment entered without the affidavit is not void but voidable. We agree. In Welch v. G. F. C. Credit Corp., 336 So.2d 1346, 1348 (Ala.Civ.App.1976), we stated:

However, Sec. 322 [now § 5-19-11] contains definite prohibitions against both creditor and court. The creditor is prohibited from bringing suit without filing the required affidavit. If he should disregard the prohibition, the court is prohibited from entering judgment thereon until such affidavit is filed. In effect, the penalty upon the creditor for suing without the affidavit is that the court may not enter judgment until it is filed. We consider the prohibition upon the court to be a limitation of its authority to exercise jurisdiction if not waived affirmatively. However, a judgment rendered without such affidavit, but with jurisdiction of the parties is not void but voidable. In this case, the filing of an answer may be considered as a waiver. (Emphasis supplied.)

The credit union contends that payment of the judgment by Graham constituted an affirmative waiver of the Mini Code affidavit.

Although Graham ultimately agreed to pay the judgment, it does not appear that this act alone necessarily is an affirmative waiver of the Mini Code affidavit. There can generally be no waiver without the intentional relinquishment of a known right. O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969). Payment on a judgment is a performance on a mandatory decree and thus is not necessarily a voluntary act. Bateh v. Brown, 289 Ala. 699, 271 So.2d 833 (1973), appeal after remand, 331 So.2d 671 (Ala.1976). Graham’s act of paying the judgment, then, in and of itself, in this instance where there is a paucity of facts surrounding the payment, was not of such a voluntary nature so as to constitute an affirmative waiver of the Mini Code affidavit.

However, it is undisputed that Graham, after being served with the complaint, chose not to appear or otherwise defend prior to the trial court’s entry of a default judgment. We see little distinction between Graham’s acts in this instance and the act of the defaulting party in Welch v. G. F. C. Credit Corp., supra. In Welch, the defaulting party’s filing of an answer constituted an affirmative waiver of the requisite Mini Code affidavit. In the instant case, Graham’s decision to “pay the judgment,” as indicated above, and his decision “not to appear or otherwise defend” was, to this court, an intentional relinquishment of his known right to attack the authority of the court to render a default judgment due to the credit union’s noncompliance with section 5-19-11.

Because the default judgment now before us was voidable, because of the facts as shown above, rather than void, the rule 60(b) motion to have the judgment set aside on the grounds that it was void was properly denied.

II

Graham next contends that the omission of an entry of default pursuant to rule 55(a) renders the trial court’s entry of a default judgment void.

There is no entry of default in the record before us. Rule 55 provides in pertinent part:

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
(b) Judgment. Judgment by default may be entered as follows:
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered (A) against an infant, or (B) against an incompetent person, unless represented in the action by a general guardian or other representative as provided in Rule 17(c) who has appeared therein.... If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury pursuant to the provisions of Rule 38.

Prior to obtaining a default judgment under rule 55(b)(2), there must be an entry of default as provided by rule 55(a). Wright & Miller, Federal Practice and Procedure § 2682. Entering default by the court or the clerk is the first action taken before entering a default judgment. Weaver v. Travel Inn, Inc., 350 So.2d 444 (Ala.1977).

We have found no case construing rule 55, A.R.C.P., or a similar rule from another jurisdiction, which has discussed the validity of a default judgment entered by the court as we have in this instance without a prior entry of default pursuant to rule 55(a). It does not appear, however, that failure to make an entry of default renders the subsequent judgment void.

The entry of default under rule 55(a) is largely a formal matter. Orange Theatre Corp. v. Rayherstz, 130 F.2d 185 (3d Cir. 1942). The omission of an entry of default is an irregularity which does not render the judgment void, although it may constitute grounds for reversing it. 49 C.J.S. Judgments § 206.

Clearly, the absence of an entry of default is procedurally incorrect. Weaver v. Travel Inn, Inc., supra. We have, however, found no authority which supports Graham’s contention that the omission of an entry of default renders the default judgment entered by the court void. Therefore, in the instant case, we find the trial court did not err in denying the rule 60(b) motion to set aside the default judgment.

Ill

Graham finally contends the credit union’s failure to file a written motion requesting a default judgment pursuant to rule 7(b)(1) rendered the judgment void.

Rule 7(b)(1) states:

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

The credit union concedes it did not file a written motion with the trial court. The credit union contends, however, it orally requested a default judgment and the trial court had all pertinent data which would entitle the credit union to a default judgment.

The credit union’s contentions are supported by the trial court’s order:

On motion of plaintiff, it being shown to the satisfaction of the court that defendant is neither an infant nor unrepresented incompetent person, judgment by default is hereby rendered in favor of the plaintiff and against the defendant in the sum of $9,458.72 and all costs.

There is no evidence before us to contradict the trial court’s statement that it was entering the judgment on the motion of the credit union. Appellant Graham, in brief, even indicates that the credit union orally requested a default judgment.

Rule 7(b)(1) expressly provides that a motion may be made orally “during a hearing.” Rule 7(b)(1). The North Carolina Court of Appeals has ruled that a written motion for an entry of default or an entry of a default judgment is not mandatory, though it is certainly better practice to file a written motion. Sawyer v. Cox, 36 N.C.App. 300, 244 S.E.2d 173, cert. denied, 295 N.C. 467, 246 S.E.2d 216 (1978).

We cannot hold, therefore, on the facts of the instant case coupled with the liberal construction of the Alabama Rules of Civil Procedure, that the credit union’s failure to file a written motion rendered the default judgment void.

We have carefully considered each of the three issues raised by Graham on appeal and cannot conclude, as indicated above, that the default judgment was void. Hence, the trial court did not err in denying Graham’s motion to reconsider the denial of the rule 60(b) motion.

For the foregoing reasons, this cause is due to be affirmed.

AFFIRMED. MOTION TO DISMISS APPEAL DENIED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . The credit union contends that Graham actually agreed to settle for less than the amount owed on the judgment, and that the payment of a lesser amount constitutes a waiver. There is no evidence in the record of the amount paid by Graham; rather, there is merely evidence that he did pay the judgment. This fact, payment, is revealed by Graham’s own affidavit.

      . Accord: Under old Alabama Equity Rule 32, T. 7, Code of Alabama 1940 (Recomp.1958) (now incorporated into rule 55 A.R.C.P.), an irregular or unauthorized decree pro confesso did not render it or the final decree void, although it might be reversed on appeal. Capps v. Norden, 261 Ala. 676, 75 So.2d 915 (1954).


source: Caselaw Access Project

author: SCRUGGS, Retired Circuit Judge.

license: Public Domain

text:
    Willie D. TYSON v. Eva Pritchett TYSON.
    Civ. 3052.
    Court of Civil Appeals of Alabama.
    March 3, 1982.

      Delores R. Boyd of Mandell & Boyd, Montgomery, for appellant.
    Rose Mary Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellee.
   SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The parties were married in 1947 in Lowndes County and their four children were born in 1947, 1950, 1952 and 1954. The husband was employed by the county in its road maintenance program. He quit that employment in either 1953 or 1954, promptly moved to Montgomery, lived with his sister for the next ten years, and obtained employment there. None of his family moved to Montgomery with him. He left all of their meager possessions, consisting almost exclusively of some furniture, with the wife. They had acquired nothing of substance. They were poor, just barely living. The wife did not work prior to this separation. Their rented house had no inside plumbing, a not unusual circumstance at that time and place.

After the husband had failed to provide for the support of the children for six months following the separation, the wife, through nonsupport proceedings, obtained a court order whereby he was directed to pay $7 per week for the children’s support. The husband and his sister testified that he paid $30 per month as such child support until the youngest child reached eighteen years, while the wife testified that he only paid child support for a total period of two years.

After their separation, he lived his life and the wife lived hers. Two years after he left, the wife gave birth to a child by a man other than the husband. Later, the husband fathered a child by his girl friend.

He is fifty-eight years of age, and is presently employed at a post office as a custodian, his estimated take-home pay being around $500 biweekly. He cannot read. He now lives with his girl friend, and the two of them have been jointly purchasing a home since 1979. He stated that he is paying $200 per month upon the purchase money mortgage. The mortgage debt of $38,-800 is payable at the rate of $384.51 per month. This is the only house that he has ever owned, his interest therein being a joint ownership with his girl friend. There was no inquiry into his living expenses.

After the husband moved to Montgomery, his family was on welfare. Two daughters and a grandchild presently reside with the wife. For taking care of her elderly mother who lives alone, the wife now draws $60 per month from the Department of Pensions and Security, and one of the daughters obtains assistance for her child. Both of those daughters work only part time and they contribute toward living expenses, which were not detailed.

The above summarizes all of the evidence. When both sides had rested, the trial court held that, although alimony had not been sought through the wife’s pleadings, the parties had litigated that matter without objection. In the subsequent judgment, which divorced the parties because of incompatibility of temperment, the trial court further ordered the husband to pay to the wife as periodic alimony the sum of $100 per month; hence this appeal.

The second sentence of rule 54(c), A.R. C.P., is as follows:

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

That principle is reiterated and reinforced by the following language from rule 15(b):

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

The evidence adequately allowed rules 54(c) and 15(b) to be applied by the trial court, which did not err in that respect.

The husband next contends that the trial court abused its discretion in awarding alimony and as to the amount thereof. Those were trial court discretionary matters, and its judgment is presumed to be factually correct upon appeal and cannot be changed by this court unless the judgment is unjust or palpably wrong if it was supported by legal evidence in the ore tenus trial. Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980); Cobb v. Cobb, 352 So.2d 1384 (Ala.Civ.App.1977); Nix v. Nix, 348 So.2d 802 (Ala.Civ.App.1977).

From the evidence, the trial court could have reasonably concluded that the husband quit his job and voluntarily abandoned his wife and children. His being forced to provide child support through the nonsupport proceedings would bolster such a finding. We have not been cited to, and by our lengthy independent research have not located, any case which expressly holds that a twenty-seven year separation, without spousal support, alone bars an award of alimony. The time of the separation and lack of assistance in the wife’s maintenance were facts which could be considered by the trial court, but they are not absolutely controlling factors, especially in this case in view of the valid finding which could have been made of her abandonment by the husband.

There was evidence that the wife was being supported through the allowance of $60 per month which she received for caring for her mother and through limited assistance from two daughters, neither of which had a full time job. The work history of the husband was established, his net income exceeding $1,000 per month. He testified that he paid $200 per month on the mortgage, there being no evidence as to how the balance of such monthly payments were made. His other expenses and liabilities were not established and no request was made to the trial court that the husband be permitted to present further or additional evidence on the alimony question when the trial court decided that alimony was an issue which had been tried in the case.

Periodic alimony of $100 per month certainly is not excessive. It constitutes less than one-tenth of the husband’s net monthly income. Her new monthly income will total $160 per month, $100 as alimony and $60 from D.P.S. “The issues presented by the proof were clearly related to alimony and support, though there .was no specific evidence of the requirements of the plaintiff nor the child for alimony and support. We find sufficient inferential evidence to support the award of the court.” Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (1975).

The trial court’s award of periodic alimony, and the amount thereof, are both adequately supported by the evidence. No palpable wrong is shown and there was no abuse of discretion. Accordingly, we must and do affirm.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    GENESCO EMPLOYEES’ CREDIT ASSOCIATION, a corporation v. David E. COBB.
    Civ. 2936.
    Court of Civil Appeals of Alabama.
    March 10, 1982.

      Gregory R. Jones of Humphrey & Smith, Huntsville, for appellant.
    Thomas G. Keith of Legal Services of North-Central Alabama, Inc., Huntsville, for appellee.
   BRADLEY, Judge.

This case involves the validity of a loan contract.

David E. Cobb was an employee of Gen-eseo at their shoe manufacturing plant in Huntsville, Alabama. As a Genesco employee he was eligible for membership in the company credit union, Genesco Employees’ Credit Association (hereinafter Association). This Association was incorporated in Tennessee, and had its sole place of business in Tennessee.

Cobb was employed by Genesco from 1966 until 1979. In 1973 he applied and was approved for a credit arrangement called a quick loan plan with the Association. He filled out the loan application in Alabama and this application was signed by the local personnel manager and Cobb’s supervisor. The application was then forwarded by mail to the Association in Nashville for approval.

After the loan was approved in Nashville, the money was forwarded back to the plant in Huntsville to be given to Cobb. The method for repayment of the loan was by payroll deduction. Since all Genesco checks' are issued from Nashville, the deductions for loan repayment were made in Nashville.

In 1979 Genesco closed its Huntsville plant. As a result, Cobb was unemployed, and his loan fell in default. The Association filed suit on June 30,1980 against Cobb and his wife claiming $536.82 plus interest. In December 1980 Cobb filed several defenses and a counterclaim.

The defendant contended that the loan was in violation of Alabama’s “mini-code,” Code 1975, § 5-19-1 to -31. Further, he contended that it was in violation of the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. (1976). Later Cobb amended his answer to allege that the Association was a foreign corporation and had not complied with Code 1975, § 40-14-1, which requires foreign corporations to qualify to do business in Alabama. Cobb alleged that this failure to qualify made the loan agreement unenforceable in Alabama.

In its final judgment, the trial court found that Alabama law applied, and that the Association’s claim was, therefore, unenforceable because of its failure to qualify to do business in Alabama. The Association appealed to this court on August 17, 1981.

The Association here contends that it is not doing business in Alabama, and that as a result its contract with Cobb is not void. Further, the Association argues that the contract was made in Tennessee, and therefore Tennessee law is applicable. We agree with these contentions and reverse the judgment.

Article XII, § 232, Ala.Const. (1901) provides:

No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association.

Section 40 — 14-1 of the 1975 Code requires a foreign corporation to qualify to do business in the state of Alabama. The penalty for failure to qualify is found in § 40-14-4, which provides in pertinent part:

All contracts made in this state by any foreign corporation which has not first complied with the provisions of sections 40-14-1 through 40-14-3 shall, at the option of the other party to the contract, be wholly void at the action of such foreign corporation ....

The above noted provisions of Alabama law are limited in their application to contracts made in Alabama. Thus, contracts made outside Alabama do not constitute doing business in the state. Lee v. Great Northern Nekoosa Corp., 465 F.2d 1132 (5th Cir. 1972); J. R. Watkins Co. v. Hamilton, 32 Ala.App. 361, 26 So.2d 207 (1946). However, if the contract is to be performed in Alabama, its performance would amount to doing business in Alabama. Citizens’ National Bank v. Bucheit, 14 Ala.App. 511, 71 So. 82 (1916); Lee v. Great Northern Nekoosa Corp., supra.

In the case at bar the application for the loan was completed in Alabama and forwarded to the Association’s office in Nashville, Tennessee where it was to be approved or disapproved. The application itself clearly provided that final disposition of the application would be made in Tennessee. Where a contract is subject to acceptance in a foreign state and was approved in that state, the completion of the agreement is deemed to be in that foreign state and it is to be construed according to that foreign state’s laws. W. T. Rawleigh Medical Co. v. Walker, 16 Ala.App. 232, 77 So. 70 (1917). The contract in the case at bar received final approval in the state of Tennessee. As a result, the contract was completed in Tennessee and is deemed to be a Tennessee contract.

Furthermore, we are unable to find that the contract was to be performed in Alabama. Loan payments were made in Tennessee by payroll deduction. Payment of Cobb’s wages was made by a check issued in Nashville, Tennessee. Loan payments were made by deducting the appropriate amount from Cobb’s check in Nashville before it was sent to him in Huntsville. Consequently, the loan payments having been made in Tennessee by payroll deduction in that state, the contract was performed in Tennessee.

Since the loan agreement was made in Tennessee and the agreement was performed in Tennessee, the Association’s contract with Cobb is not void and the Association is not prevented from seeking to recover on it in Alabama.

Since we find that the loan contract was made in Tennessee, the provisions of Alabama’s “mini-code,” §§ 5-19-1 to -31, are inapplicable. The validity of a contract is determined by the law of the state in which it was made. Furst & Thomas v. Sandlin, 208 Ala. 490, 94 So. 740 (1922). Where, however, the contract is to be performed at a place other than the place where it was made, the law of the place of performance governs. First National Life Insurance Co. v. Fidelity & Deposit Co., 525 F.2d 966 (5th Cir. 1976). The contract in this case was made in Tennessee, and it was performed in Tennessee. As a result, Alabama’s “mini-code” is inapplicable, and Tennessee law governs the transaction.

For the above reasons, the judgment of the trial court is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.


author: PER CURIAM.

text:
    Neil Wise WILLIAMS v. Brenda G. WILLIAMS.
    Civ. 2945.
    Court of Civil Appeals of Alabama.
    March 17, 1982.

      J. Gary Pate of Najjar, Najjar, Boyd & Pate, Birmingham, for appellant.
    Roderick Beddow, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellee.
   PER CURIAM.

This is a divorce case. The only issue on appeal is whether the attorney’s fee awarded to the wife’s attorney is so excessive as to constitute an abuse of discretion and palpable error on the part of the trial court.

No official transcript of the evidence taken ore tenus is available, and the case is offered for review upon a statement of evidence pursuant to Rule 10(e), A.R.A.P.

The cause arose under the following pertinent facts:

The parties herein were married for approximately seven years, and two sons were born of the marriage. The couple separated in February 1981, and the husband filed a complaint for divorce. The wife answered and counterclaimed for child custody, property division, alimony, attorney’s fees and temporary relief pendente lite. Although the grounds averred in both pleadings were incompatibility of temperament and irretrievable breakdown of marriage, the husband admittedly had committed adultery with various women. The evidence showed that the husband earned $48,-000 per year as a salesman and was a college graduate. The wife was a high school graduate and had not worked during the marriage. This was the husband’s second marriage, but the wife’s first.

The trial court awarded custody of the minor sons to the wife with specific visitation in the father. He was ordered to pay support of $200 per month per child, and to keep in force medical insurance for the children. Periodic alimony was set at $100 per month. The only real property involved— the residence — was awarded to the husband, but the wife was given use and possession of the home until the youngest child reaches nineteen or marries. The husband was made responsible for repairs and upkeep. The wife received the car she was driving, and was charged with paying the indebtedness thereon, as well as most of the household furniture and appliances. The husband was ordered to pay all other outstanding debts, court costs, and $8,000 for the wife’s attorney’s fee. During the hearing of testimony, the wife’s attorney was prepared to offer evidence as to attorney’s fees, but the trial court declined to hear it. Opposing counsel commented that he would be satisfied with an award of a reasonable fee.

Post-judgment motions as to attorney’s fees were denied. From the court’s award of attorney’s fees, the husband appeals. His contention is that the attorney’s fee is excessive and constitutes an abuse of discretion.

We realize that the amount of attorney’s fees to be awarded is a matter vested in the trial court’s discretion. However, that discretion is judicial, not arbitrary and is subject to review on appeal. Hewitt v. Hewitt, 285 Ala. 516, 234 So.2d 283 (1970). The factors to be considered in determining the attorney’s fee are numerous and were given great consideration and treatment by both parties in brief. See, Rosser v. Rosser, 355 So.2d 717 (Ala.Civ.App.1977), cert. denied, 355 So.2d 722 (Ala.1978); Burgess v. Burgess, 54 Ala.App. 396, 309 So.2d 107 (1974), cert. denied, 293 Ala. 748, 309 So.2d 111 (1975).

Our review is not on a complete transcript of evidence, but a 10(e) statement of evidence. However, we have before us the clerk’s record revealing the extent of pleadings and procedure. The statement of evidence and briefs also enumerate the pleadings filed by Mrs. Williams’ attorney and the court appearances made by her counsel. We have the undisputed evidence of the husband’s income and assets and the results of the efforts of the wife’s counsel. The cause for the breakdown of the marriage was admitted. We also have available to us our experience and knowledge of current awards in similar cases. In refusing evidence of matters affecting an award in this particular case, it appears that the trial judge had no more basis for judgment than does this court.

Our consideration brings the conclusion that the award of a fee of $8,000, without evidence in the record of circumstances unusual to this case, is so unreasonable as to constitute an abuse of discretion. It seems especially unreasonable when placed alongside the award of child support and alimony. The attorney fee is $2,000 greater than the sum of child support and alimony for an entire year. In the absence of record support for such an award, this court cannot approve it as a proper exercise of judicial discretion. We therefore reverse the judgment below as to such award and remand for taking of testimony as to a reasonable attorney fee to be awarded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Thomas A. EMFINGER v. Scarlett Crawford EMFINGER.
    Civ. 2984.
    Court of Civil Appeals of Alabama.
    March 17, 1982.
    G. Stephen Wiggins of Roberts, Davidson & Wiggins, Tuscaloosa, for appellant.
    James W. Harris, Tuscaloosa, for appel-lee.
   BRADLEY, Judge.

This is a divorce case.

The parties were married to each other on March 11,1972. Two children were born of the marriage, namely: Janell, age five, and Brandon, age three. The wife filed for divorce on March 5, 1981.

The husband in this case is a coal miner employed by Jim Walter Resources. He also does some work on the side as a mechanic. His minimum net monthly income is $1,300.00.

The wife is presently working as a secretary, with a net income of $650.00 a month. She has been attending college part time and is very close to graduation.

The parties jointly own a home in Tuscaloosa County which they purchased for $14,-000.00. There are presently two mortgages on the home. The first mortgage has a balance of $10,000.00 and the second mortgage has a balance of $7,000.00. The court determined that the parties had $6,000.00 equity in the house.

On March 25, 1981 the trial court entered a judgment pendente lite awarding custody of the minor children to the wife. On March 27, 1981 the trial court confirmed a report by the general master who was appointed to determine a reasonable amount of pendente lite support. The amount set was $175.00 per week as support of the minor children.

The divorce case was heard in two parts. The first part of the case was heard on May 19, 1981 concerning who was to be awarded custody of the children. On May 21, 1981 the court entered a partial final decree awarding custody of the children to the wife and reaffirming the support payments pendente lite.

The final decree was not entered until August 17, 1981 after a further hearing regarding child support and division of property. An appeal was taken to this court on September 15, 1981.

The final decree awarded permanent custody of the children to the wife. The husband was ordered to pay the wife $159.00 a week as child support and $1.00 a week as periodic alimony. The wife was given a one-half interest in the marital home. The title to the other one-half interest in the home was conveyed to the mother in trust for the children. The wife was ordered to make the mortgage payments on the house. The court also ordered that the house not be sold or mortgaged without prior approval of the court.

The husband raises two issues in this appeal. First he contends that the amount of child support awarded in this case is excessive and constitutes an abuse of discretion. Second he argues that the division of the marital home was inequitable.

The award of child support is within the sound discretion of the trial court and will not be reversed on appeal absent a showing of plain and palpable abuse of discretion. Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979). In the present ease we cannot find such an abuse of discretion as to require reversal.

The husband earns $1,300 a month as a coal miner. He also is able to work part time as a mechanic. Although the award of $159 a week as child support and $1.00 a week as alimony constitutes approximately one-half of the husband’s salary, we cannot say that this amount is so excessive as to constitute an abuse of discretion.

The husband also argues that the award of one-half of the house to the wife and the other half to the children constitutes reversible error. We cannot agree. The division of property in a divorce ease does not have to be equal but is to be equitable and graduated according to the nature of the case. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

The house was purchased for $14,-000.00. There is an outstanding balance of $10,000.00 on the first mortgage and a $7,000.00 balance on a second mortgage. The wife was ordered to pay these mortgages. The trial court found that the parties had approximately $3,000.00 each of equity in the property.

The award to the wife of her one-half interest in the property, especially in view of the evidence relating to fault on the part of the husband, is not inequitable. Moreover, the award to the mother for the children of the remaining one-half interest as additional child support or as an assurance that future child support payments will be made as ordered is also not inequitable. Consequently, based on the evidence in this case, we find no error in the division of property.

In response to the wife’s request for an attorney’s fee on appeal, we award $350.00 for such purpose.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Walter D. KILPATRICK v. Betty KILPATRICK.
    Civ. 3001.
    Court of Civil Appeals of Alabama.
    March 17, 1982.
    Daniel G. McDowell of Fine & McDowell, Russellville, for appellant.
    Kenneth B. Taylor, Jr. of Legal Services Corporation of Alabama, Florence, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The trial court after an ore ten us hearing divorced the parties, made a division of property and awarded the wife periodic alimony.

The husband, through able counsel, appeals, contending the trial court so abused its discretion in the division of property and the award of periodic alimony that reversal is required. We disagree and affirm.

Viewing the record with the attendant presumptions accorded the trial court’s action, the following is revealed: The parties had been married for more than twenty-five years. The husband was forty-five and the wife was forty-six when they were divorced. The husband is a machinist with a gross income of approximately $20,000 per year. The husband also earned approximately $2,000 from a part-time job during the year prior to the divorce. At the time of the divorce, the wife was working as a cashier and taking home approximately $100 per week.

The parties owned a home valued at $50,-000 to $60,000 which was encumbered with a $20,000 mortgage. There was evidence that the home needed approximately $7,000 in repairs. The parties owned a one acre tract adjacent to the airport valued at $1,000 to $1,500. The parties also owned a five acre tract near the home with an estimated value of $2,000 to $4,000 per acre. The husband kept a small tool shop on part of this five acre tract.

The parties owned three cars, two motorcycles, and a small truck. One car and one motorcycle were for the use of the parties’ minor son.

The evidence indicates the parties had been experiencing marital problems for several years. The husband admitted to a long term adulterous affair.

With these facts before it, the trial court entered a decree which provided as follows:

The husband was awarded custody of the parties’ sixteen year old son and the wife was awarded reasonable visitation rights.

The wife was awarded the house, the furniture and household items, and one car. She was to assume the indebtedness on the home.

The husband was awarded the remaining cars and motorcycles. The one acre tract of land near the airport was awarded to the husband. The husband was also awarded the shop, tools and one acre of the five acre tract. The remaining four acres of the five acre tract were to be sold with the proceeds to be divided between the parties, forty percent to the wife and sixty percent to the husband.

The husband was ordered to pay the wife $2,000 in a lump sum and was further ordered to pay the wife $60 per week as periodic alimony.

We initially note that a trial court is awarded wide discretion in awarding marital assets in divorce cases and such discretion is presumed correctly applied on appeal. Cox v. Cox, 395 So.2d 1027 (Ala.Civ.App.1981). A division of property need not be equal but must be equitable under the circumstances of each case. Weaver v. Weaver, 394 So.2d 378 (Ala.Civ.App.1980), cert. denied, 394 So.2d 380 (Ala.1981).

In the instant case, the wife received a car, some cash, and the marital home which was in need of repair and encumbered by a mortgage. The husband received all other vehicles, a portion of the land owned by the parties, and part of the proceeds from the sale of the remainder of the property.

Considering the length of the marriage, the relative earning capacity of the parties, and the evidence of the husband’s adultery, we cannot say the trial court abused its discretion in the division of property.

There is no mathematical formula to ascertain the propriety of the amount awarded as alimony. Phillips v. Phillips, 344 So.2d 786 (Ala.Civ.App.1977). The amount to be awarded as periodic alimony is based on the factors stated in Nolen v. Nolen, 398 So.2d 712 (Ala.Civ.App.1981). Applying these factors to the instant action, we note that the wife is middle-aged and earns a small income. The parties, as indicated above, had been married more than twenty-five years, and the husband’s adulterous conduct contributed to the marital breakdown. Upon these facts, we find the trial court did not abuse its discretion in ordering the husband to pay the wife $60 per week in periodic alimony.

Finding no error on the part of the trial court, this case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Joseph Winson CHANDLER, Sr. v. Johnny Ed MANNING and Faye Manning.
    Civ. 3064.
    Court of Civil Appeals of Alabama.
    March 17, 1982.
    Gregory Carr, Montgomery, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This is an appeal from the trial court’s denial of appellant’s petition for the return of legal custody of his minor child.

Appellant, Joseph W. Chandler, Sr., is the natural father of the minor child involved in this dispute. For reasons not made clear in the record, in April of 1981 the Circuit Court of Montgomery County, Juvenile Division, awarded temporary custody of appellant’s minor son to appellant’s sister and brother-in-law. No appeal was taken from that action. In August of that year appellant filed a petition in the circuit court seeking the return of legal custody of the child to himself and his new wife, alleging that certain changes in his circumstances justified such a return of custody. An ore tenus hearing on the petition was held on October 28, 1981. The court denied appellant’s petition and found that:

[Tjhere exists reason to believe that the home environment of Mr. and Mrs. Chandler is not stable enough to assure the suitable adjustment of Joe, Jr., should he be placed in such environment and further, that the child has so psychologically bonded himself to his aunt and uncle that another move in his life would be of severe emotional trauma.

The natural father appeals from that judgment.

The evidence adduced at trial, consisting of the testimony of the parties and relatives and of reports made by the Department of Pensions and Security (hereinafter Department) concerning appellant’s home life, indicates that the natural mother and father of the child were presumably divorced prior to the events involved herein. The father remarried in September of 1981. He runs his own refrigeration, heating and air conditioning business, and earns approximately $16,000.00 yearly. The Department report, dated September 22, 1981, and admitted without objection, indicates that appellant has had severe alcoholism problems in the past. Mrs. Manning, appellant’s sister and custodian of the child, testified that because of this problem the child had from time to time been sent to live with his grandparents or an aunt.

Appellant testified at trial that, contrary to the Department’s report, he had refrained from consuming any alcoholic beverages for a period of one year prior to this proceeding, and that he had been attending Alcoholics Anonymous meetings. The testimony of appellant’s father supported this contention.

Appellant’s new wife has three children from a prior marriage. For a period of time the Department held temporary custody of Mrs. Chandler’s two minor children. At the time of the Department’s report, Mrs. Chandler was undergoing mental health counselling. There is some mention in the report of a court proceeding in December 1981 which Mrs. Chandler was to attend for the purpose of assessing her ability to take care of her own children.

The evidence tends to show that the child has adjusted well to the environment of his aunt and uncle’s home, although there is some indication that the child has expressed a desire to live with his father. The Man-nings have expressed an interest in retaining custody of the child, and possibly adopting him.

Appellant contends that the trial court abused its discretion in refusing to grant his petition for return of custody of his son, and asserts as grounds for his contention the presumption in favor of parental custody as applied in such cases as Ex parte Berryhill, 410 So.2d 416 (Ala., 1982) and Pendergrass v. Watkins, 383 So.2d 851 (Ala.Civ.App.1980). We disagree with appellant’s contention and affirm the judgment of the trial court.

In situations of this kind, in which the natural parent seeks to regain custody of a minor child who by prior judicial decree has been temporarily placed with another, the natural parent has the burden of proving that a change in custody is necessary to promote the child’s best interest. Dunlap v. Jeffcoat, 352 So.2d 1380 (Ala.Civ.App.1977); Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977). Such a prior award of temporary custody to another rebuts any presumption which favors the natural parent. Willette v. Bannister, supra.

Each child custody case must be decided upon its own set of facts. The trial court’s judgment in cases of this kind will not be overturned on appeal unless it is plainly and palpably wrong. Kilgore v. Kilgore, 54 Ala.App. 336, 308 So.2d 249 (1975). The pertinent facts show that in September of 1981 the Department found that appellant was still suffering from the effects of his alcohol problems. At the same time, Mrs. Chandler was apparently having problems with the care of her own two minor children. The child himself appeared to be adjusting smoothly to the Mannings’ home. In light of this evidence we cannot say that appellant has met his burden of proving that a change in custody would be in the best interest of the child (at this time). Consequently, we do not find the trial court’s decision refusing appellant’s petition to be erroneous.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: BOYD, Justice. BOYD, Justice.

text:
    CITY OF TALLAHASSEE, Petitioner, v. Robert T. MANN, et al., Respondents.
    No. 59744.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied March 25, 1982.

      Frederick M. Bryant of Pennington, Wilkinson, Gary & Dunlap, Tallahassee and Bryan W. Henry of Henry, Buchanan, Mick & English, Tallahassee, for petitioner.
    Authur C. Canaday, Gen. Counsel and William S. Bilenky, Deputy Gen. Counsel, Florida Public Service Commission, Tallahassee, for respondents.
    F. E. Steinmeyer, III, County Atty. and 0. Earl Black, Jr., Asst. County Atty., Tallahassee, for amicus curiae.
   BOYD, Justice.

This cause is before the Court on petition of the City of Tallahassee for review of a non-final order of the Public Service Commission. This Court has the power to issue all writs necessary to the complete exercise of its jurisdiction. Art. V, § 3(b)(7), Fla.Const. The order the petitioner seeks to have reviewed is an order to show cause in a matter which, upon final action by the commission, would be reviewable in this Court. Art. V, § 3(b)(2), Fla. Const.; § 366.10, Fla.Stat. (Supp.1980). The essence of the city’s petition is that the commission has no jurisdiction of the subject matter. Accordingly, we treat it as a petition for a writ of prohibition. We conclude that the commission has subject-matter jurisdiction and therefore deny the petition.

On January 3, 1979, the Public Service Commission issued an order to all rural electric cooperatives and municipal electric utilities to submit rate tariff sheets so it could implement its jurisdiction under section 366.04(2), Florida Statutes (1977). After receiving the City of Tallahassee’s revised tariff sheet, the commission issued a comment letter requesting justification for the fifteen percent surcharge the city imposed upon customers located outside the city’s territorial limits. The city responded by letter, explaining its legal authority to impose the surcharge and questioning the commission’s subject-matter jurisdiction, On September 3, 1980, the commission issued an order to the city to show cause why the surcharge should not be eliminated.

The dispute here is over the meaning of “rate structure.” Section 366.-04(2)(b) clearly grants the commission jurisdiction “To prescribe a rate structure for all electric utilities.” The city urges us to construe “rate structure” so that it does not include surcharges, arguing that otherwise the commission would be allowed to exert its jurisdiction over municipal electric utilities’ rates. We agree that the commission does not have jurisdiction over a municipal electric utility’s rates. See Amerson v. Jacksonville Electric Authority, 362 So.2d 433 (Fla. 1st DCA 1978). However, there is a clear distinction between “rates” and “rate structure” though the two concepts are related. “Rates” refers to the dollar amount charged for a particular service or an established amount of consumption. Rate structure refers to the classification system used in justifying different rates. Cf. Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977) (evidence to support the commission’s decision to retain the basic structure was adequate even though there were a few unexplained reclassifications of customers).

The rates for service supplied by the city’s utility are set by the Tallahassee City Commission. That body is charged with the duty of setting reasonable rates. The Public Service Commission has no authority over those rates. If the rates are unreasonable, the ratepayers have recourse to the city commission. Only citizens of Tallahassee, however, have the power of the ballot over their city commissioners.

While the Public Service Commission has no jurisdiction to set rates for a municipal utility, it has authority over the “rate structure” of all electric utilities in the state. The city’s differential charges to customers within and without its corporate limits constitute a classification system and thus are a matter of “rate structure” subject to the jurisdiction of the Public Service Commission.

We therefore deny the petition for writ of prohibition and remand the cause to the Public Service Commission for further proceedings.

It is so ordered.

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

ENGLAND and McDONALD, JJ., dissent.

On Petition for Rehearing or Clarification

BOYD, Justice.

By motion of the petitioner we are asked to state that on remand the Public Service Commission will have the burden of establishing that the City’s system of differential charges is unreasonable. The City argues that its utility rates ordinance, like any other legislative act, is presumed valid and that the burden of proving otherwise is on those who challenge it, citing Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976) and City of Pompano Beach v. Oltman, 389 So.2d 283 (Fla. 4th DCA 1980). These decisions concerned challenges brought in circuit court by ratepayers of municipal utilities, and are therefore not applicable in this case. This is not a challenge to the City’s rate structure in a circuit court action. Rather, the Public Service Commission, which has statutory authority to prescribe a rate structure for all electric utilities, is giving the City an opportunity to explain why the Commission should not order that the City’s rate structure shall be uniform for residents and nonresidents of the City of Tallahassee.

The procedure to be used by the Commission is analogous to a ratemaking proceeding. Just as the Commission may prescribe rates for an investor-owned utility under section 366.05(1), Florida Statutes (1981), it may now also prescribe a rate structure for a municipal electric utility. If the Commission orders that the City’s rate structure be uniform, the question on review of that order will be whether the findings are based upon competent, substantial evidence, City of Plant City v. Hawkins, 375 So.2d 1072 (Fla.1979), and not whether the City’s imposition of a surcharge on nonresidents is reasonable or unreasonable. It will be the order of the Commission, if one is issued, that will be clothed with a presumption of validity. It will be the City’s burden, if aggrieved, to overcome that presumption by showing a departure from the essential requirements of law. Shevin v. Yarborough, 274 So.2d 505 (Fla.1973).

By issuing an order to show cause, the Commission is affording the City an opportunity to present evidence justifying its present rate structure and to prepare a record to rely upon in making a legal challenge to the Commission’s final action should the City be dissatisfied with it. Therefore it is proper for the City to have the burden of going forward with evidence in justification of its present practices.

Accordingly, we adhere to our decision denying the petition of a writ of prohibition, we deny the petition for rehearing, and we remand the cause to the Public Service Commission for further proceedings consistent with our opinion and this order.

It is so ordered.

ADKINS, OVERTON, ALDERMAN and EHRLICH, JJ., concur.

SUNDBERG, C.J. and McDONALD, J., dissent.

Not final until time expires to file rehearing motion and, if filed, determined.


text:
    Leslie R. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 56199.
    Supreme Court of Florida.
    Jan. 21, 1982.
    Rehearing Denied April 8, 1982.

      Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of first-degree murder, assault with intent to commit first-degree murder, and robbery, and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

FACTS

Appellant was tried, convicted, and sentenced after this Court reversed his earlier conviction on the same charges and remanded the case for a new trial. Jones v. State, 362 So.2d 1334 (Fla.1978). The same judge who had previously presided and sentenced appellant to death presided on remand.

The evidence showed that appellant entered a liquor store armed with a .32 caliber pistol. His accomplice Calvin Dugan entered carrying a .38 caliber pistol. Two store clerks, Peter Petros and Dorothy Hagg, were ordered to open their cash registers and then to lie down on the floor. They were then shot. Peter Petros died but Dorothy Hagg survived.

Dorothy Hagg testified that after being ordered to lie on the floor she heard two shots and then felt something pound her head. Although she did not see who fired the shots, she said she knew it was appellant because they came from the location where he was standing.

The medical evidence showed that Mr. Petros’ death was caused by a gunshot wound to the back of his head and that Dorothy Hagg was struck by two bullets, one in the arm and chest and the other in the back of the head. A firearms examiner testified that three recovered bullets were .32 caliber. One of the bullets was conclusively shown to have been fired from a pistol recovered from the home of appellant’s nephew, where appellant had been staying until the day of the robbery.

Calvin Dugan testified that he heard three shots after leaving the store and that appellant later told him he shot the victims because they recognized him. The state’s evidence also included a tape recorded confession in which appellant admitted that he did the shooting. At trial, appellant testified that he participated in the robbery but had entered a back room of the store when he heard three shots.

After the jury was selected and sworn, but before the commencement of the state’s case, one of the jurors turned to the victim’s daughter, Betty Petros, and asked, “Betty, what are you doing here?” Ms. Petros replied, “I’m a spectator, and I’m not allowed to speak to anyone.” The defendant observed this exchange and informed his attorney. Defense counsel brought the matter to the court’s attention, and an extensive inquiry was conducted. State and defense counsel were permitted to question both Ms. Petros and the juror. The defendant told the court he saw Ms. Petros speak to a second juror, but she maintained that she spoke only to one juror. The juror told the court she knew Ms. Petros only as Betty, that she was curious about her attendance at the trial, but that she believed she could still be a fair and impartial juror.

The testimony revealed that Ms. Petros and the juror who spoke to her had been school acquaintances ten years earlier but had had no contact whatsoever since that time. The court called several other witnesses to inquire whether anyone could corroborate the appellant’s claim that Ms. Pet-ros had exchanged words with a second juror. A bailiff and a person who had been a prospective juror both testified that they saw no such exchange.

Defense counsel moved for a mistrial on the grounds that a juror talked with the daughter of the deceased victim and that there was testimony that another juror also talked with her. The court denied the motion.

After the guilt phase of the trial culminated in a verdict of guilty on all three counts, but before the commencement of the sentencing phase, the defense moved to disqualify the judge from presiding at the sentencing portion of the trial. The ground of the motion was that since the judge had already once sentenced appellant to death, he was prejudiced in favor of a sentence of death. The judge denied the motion saying that his having followed the law in earlier sentencing appellant to death was no ground for a claim of prejudice.

ISSUES ON APPEAL OF THE JUDGMENT OF CONVICTION

Appellant contends that the trial court committed reversible error in its instructions to the jury, by engendering confusion on the issue of separate consideration of each count of the indictment. It was not clear from the instructions, says the appellant, that the jury could acquit on one or more but not all counts of the indictment and find the defendant guilty on others.

The defendant, however, did not object to these instructions. Florida Rule of Criminal Procedure 3.390(d) clearly states that “[n]o party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection.” Therefore, we decline to consider this issue on appeal.

Appellant contends that the trial court erred in refusing to declare a mistrial after learning that one of the jurors had talked to Betty Petros, daughter of the murder victim. We do not agree. The trial judge held an extensive inquiry into the circumstances of the exchange. He learned that the acquaintance between Ms. Petros and the juror was very distant and determined that the juror was still impartial. The communication between the juror and Ms. Petros did not directly relate to the matters being tried, and certainly did not prejudice the defendant’s right to a fair trial. Therefore the court was not obliged to declare a mistrial. United States v. Khoury, 539 F.2d 441 (5th Cir. 1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977); Johnson v. United States, 207 F.2d 314 (5th Cir. 1953), cert. denied, 347 U.S. 938, 74 S.Ct. 632, 98 L.Ed. 1087 (1954); Hendrix v. State, 136 Fla. 800, 187 So. 590 (1939). Nor did the acquaintance between the two persons, having been determined to be distant and superficial, require that a mistrial be declared. See Hartley v. State, 214 So.2d 489 (Fla. 1st DCA 1968). We find no abuse of discretion.

Appellant contends that the trial judge erred in refusing to disqualify himself from participation in the sentencing phase of the trial. Appellant filed his motion, based on the judge having previously sentenced him to death, at the beginning of the sentencing hearing, after the judge had presided over the guilt phase of the trial.

Florida Rule of Criminal Procedure 3.230(c) provides: “A motion to disqualify a judge shall be filed no less than 10 days before the time the case is called for trial unless good cause is shown for failure to so file within such time.” Appellant’s motion was untimely since no good cause was shown for not having filed it ten days before the trial. Sentencing in capital felony cases is based on facts established at the guilt phase of the trial as well as those brought out at the sentencing phase. § 921.141(3), Fla.Stat. (1977). It is therefore highly desirable that the same judge preside over both. The sentencing judge should be aware of all the relevant facts and circumstances. A motion to disqualify a judge on the ground of prejudice that may affect sentencing should be filed before commencement of the guilt phase of the trial so that a new judge, if one is to be designated, may preside over the trial from start to finish and participate in sentencing. Since the motion in this case was not based on anything that happened during the trial, there was no reason for it not to have been filed ten days before the trial began. Moreover, appellant’s motion merely stated conclusions and therefore lacked legal sufficiency. We therefore hold that the denial of the motion was not error.

Since we find no merit in any of appellant’s contentions that are properly before us, we affirm the convictions.

SENTENCE

Appellant contends that his sentence of death must be vacated because of improper comments of the prosecutor in his argument in the sentencing proceeding. Appellant argues that the prosecutor’s reference to the murder as one of the most serious and heinous crimes ever committed in the county was unsupported by evidence and inflamed the jury to appellant’s prejudice. Appellant is precluded from presenting this argument since he failed to object to the comments at trial. Gibson v. State, 351 So .2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978); State v. Jones, 204 So.2d 515 (Fla.1967).

Appellant contends that the trial judge erred at the penalty phase of the trial by not instructing the jury that the mitigating circumstances it could consider were not limited to those listed in section 921.141(6), Florida Statutes (1977). While such an instruction would be consistent with our case law, Songer v. State, 365 So.2d 696 (Fla.1978) (on rehearing), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), and would elucidate the Florida Standard Jury Instruction given in this case, its omission does not require resentencing. The judge instructed the jury that its recommendation should be based on all the evidence presented. At the penalty phase, appellant’s sister testified in his defense. No limitations were placed on the kinds of matters about which she was allowed to testify.

The judge’s instructions followed the statute in telling the jury that the aggravating circumstances were limited to those enumerated in the statute. In instructing on mitigating circumstances, the judge did not say that consideration was similarly limited. By these instructions the jury was properly apprised of its role and duty in recommending a sentence.

We come now to consideration of the propriety of the sentence of death. At trial, appellant admitted to participating in the robbery but denied participating in the shooting. As discussed previously, however, there was competent, substantial evidence upon which basis the judge and jury could conclude that appellant committed the murder with premeditation.

At the penalty phase of the trial, the state proved that appellant had previously been convicted of robbery in New Mexico and that he was on parole at the time of the murder. The judge found as aggravating circumstances that the capital felony was committed by a person under sentence of imprisonment, § 921.141(5)(a), Fla.Stat. (1977), that appellant had previously been convicted of a felony involving the use or threat of violence, id. § 921.141(5)(b), that the capital felony was committed during the course of a robbery, id. § 921.141(5)(d), that the capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws, id., § 921.141(5)(g), and that the capital felony was especially heinous, atrocious, or cruel. Id. § 921.141(5)(h). The judge found that there were no mitigating circumstances.

Under the established precedent interpreting the capital felony sentencing law, the finding that the appellant was under sentence of imprisonment when he committed the murder is supported by the evidence that he was on parole at that time. Straight v. State, 397 So.2d 903 (Fla.1981).

The finding that the appellant, at the time of the murder, had previously been convicted of a felony involving violence or the threat of violence is supported by the evidence of his conviction for robbery. The finding that the murder was committed in the course of a robbery was also proper based on the evidence. The finding that the capital felony was committed to disrupt government or law enforcement is supported by evidence showing, as the judge found, that the appellant shot the victims in order to eliminate them as witnesses against him for the crime of robbery.

The finding that the murder was especially heinous, atrocious, or cruel was supported by the evidence that appellant, ignoring the victim’s plea to be spared, shot him to death point-blank, in the style of an execution.

There are several aggravating circumstances, properly established by the evidence. There are no mitigating circumstances. The jury recommended death. Under these circumstances, death is the appropriate penalty.

The judgment and sentence are affirmed.

It is so ordered.

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


author: ADKINS, Justice.

text:
    Thomas William MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 58173.
    Supreme Court of Florida.
    Jan. 21, 1982.
    Rehearing Denied April 7, 1982.
    William R. Slaughter, II of Slaughter & Slaughter, Live Oak, and James K. Jenkins of Stroup, Goldstein, Jenkins & Pritzker, Atlanta, Ga., for appellant.

      Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of the Third Judicial Circuit, in and for Hamilton County which held constitutional section 570.15, Florida Statutes (Supp.1978). Appellant, Thomas William Martin, defendant below, filed his notice of appeal prior to the 1980 amendment of the jurisdiction of this Court. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Defendant and a companion, who was driving, were travelling northward on Interstate 75 in defendant’s van when they passed an agricultural inspection station without stopping. Agricultural Inspector E. M. Shope observed the van pass the station and, as a result of its failure to stop, pursued it and pulled it over to question the driver regarding its contents. After being told that the van contained several small bags of fruit, Mr. Shope requested permission to look inside the back section of the vehicle so that he might see the fruit himself. When the van’s side door was opened, the inspector saw the bags of fruit and, for the first time, the defendant, who was lying on a raised platform in the rearmost section of the compartment. After identifying defendant, the inspector, because he could not see the space under the raised platform, asked that the door at the back of the van be opened. He was told that the rear door would not open. Not being satisfied with the thoroughness of his search, Mr. Shope informed the occupants of the van that they had to return to the inspection station.

Upon arrival at the inspection station, defendant, at Mr. Shope’s request, again opened the side door so that the inspector could enter the van in order to search it more thoroughly. Removing the fruit, which had been re-stacked so that it covered the space under the raised platform, the inspector looked into the recessed area and saw several “brown bundles” which, upon being opened, were determined to contain cannabis. Defendant and his companion were then arrested and charged with possession of the marijuana.

After denial of his Motion to Dismiss and Suppress, defendant pleaded nolo conten-dere to the charge, reserving his right to appeal the denial of the motion. He was thereafter sentenced to four years imprisonment and ordered to pay a $5,000 fine. This appeal followed.

Defendant first argues that section 570.15 “is unconstitutional in that it arbitrarily distinguishes between passenger and recreational vehicles on the one hand, and all other vehicles on the other, with no rational basis related to the purported purpose of the statutory scheme — the regulation of agricultural products.” We specifically held otherwise in our opinion in Gluesenkamp v. State, 391 So.2d 192, 200 (Fla.1980):

Applying the conventional standard, we hold that the distinction drawn by section 570.15 between vehicles designed, maintained, or used for the carriage of property on the one hand and passenger vehicles on the other is reasonably related to the Department of Agriculture’s inspection functions and does not violate the equal protection clause of the United States Constitution or the equality guaranty of the Florida Constitution.

Defendant also contends that section 570.15 “is unconstitutional in that it fails to give sufficient notice as to which vehicles are covered by the statutory provisions for inspection, especially when applied to van-type vehicles ...” Again, as with defendant’s first argument, we held to the contrary in Gluesenkamp, when we stated:

We conclude that the offense defined in section 570.15(2) is not vaguely expressed by virtue of any indefiniteness of the term “truck.” Furthermore, ordinary persons of common intelligence can conclude from the statute that van-type vehicles that are designed, maintained, or used for the purpose of transporting goods rather than passengers are included in the meaning of the word “truck” as used in section 570.15(2).

Id. at 199.

Our opinion in Gluesenkamp is also relevant to the argument in defendant’s third point on appeal — that his van was excepted from the provisions of section 570.15 and so the detention and search complained of were illegal. Defendant notes that § 570.-15(l)(a) gives agricultural inspectors full access to “[m]otor vehicles, except private passenger automobiles with no trailer in tow, travel trailers, camping trailers, and motor homes as defined in s. 320.01(l)(b)” (emphasis added), and that § 570.15(2) makes it unlawful for a truck to pass an inspection station without stopping for inspection. He then contends that his van was customized in such a fashion that it clearly is a motorhome, as defined in § 320.01(l)(b) and thus was exempt from the provisions of §§ 570.15(l)(a)7 and 570.-15(2).

The appellants in Gluesenkamp similarly argued that their vans were not trucks within the meaning of Chapter 570. We disagreed, holding that their vehicles did come within the meaning of “truck”, observing:

Some vans are designed or maintained so as to have a cargo area to the rear of the front seats. Such vans, since they are designed specifically for transporting things rather than passengers, fall within the statutory definition of a truck. Other vans, however, do not have such a cargo area. Instead they are designed and maintained with several rows of seats for the sole purpose of carrying passengers, with the remaining space being designed to carry luggage or other personal effects of the passengers. Such vans are frequently used for bus, sightseeing, and shuttle service. And, of course, many of them are in use as ordinary, private, personal or family passenger vehicles. It is the design, maintenance, and actual use of a van-type vehicle that determine whether it is a truck. Vans designed to carry cargo are trucks and are required to stop at agricultural inspection stations. Vans designed as passenger vehicles are not.

Id. at 198.

In light of the above analysis, it was reasonable for the trial court to find that defendant’s van is a truck as that term is used in § 570.15. Although the rear compartment of said van evidently was not intended to be used for cargo carrying alone, it does not appear to have been designed solely to carry passengers and their effects either. The finding that the van fell within the definition of a truck cannot be reversed for having no basis in fact. The record indicates that the trial judge personally inspected defendant’s van prior to holding that it qualified as a truck, and his finding is not one for which we are free to substitute our own.

Finally, we consider defendant’s contention that the trial court erred in upholding the warrantless search of his vehicle on the basis of his alleged consent. He argues that the state failed to meet its burden of proving that consent was freely and voluntarily given, and that he did not give the agricultural inspector permission to look under the platform where the marijuana was located. Defendant cites several cases in which searches of vehicles carrying concealed marijuana were found to have been conducted without proper consent. See Bailey v. State, 319 So.2d 22 (Fla.1975); Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979); Rose v. State, 369 So.2d 447 (Fla. 1st DCA 1979); Gonterman v. State, 358 So.2d 595 (Fla. 1st DCA 1978); and Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976).

Despite, however, the arguments raised by defendant, the trial court found that the search complained of was conducted with defendant’s consent. There is sufficient evidence to support that finding. The record reflects that after he had seen part of the van, been unable to look under the platform, and ordered the van back to the inspection station, Mr. Shope asked defendant to open the door once more so that he could see how much more fruit the van contained. As appellee notes, at the time of said request, the only spot that had not been searched was the area under the platform, so defendant must have known that the inspector, in looking for more fruit, would search that area.

Defendant contends that in opening the door and giving the inspector access to the van’s interior, he was not consenting to a search of the area under the platform but instead to that area where the bags of fruit lay. However, as previously noted, the trial court found that defendant did consent to the search, and the voluntariness of such consent “is a question of fact to be determined from the totality of all the circumstances.” Denehy v. State, 400 So.2d 1216, 1217 (Fla.1980), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).

In Denehy, we also observed that “[s]ince there was no evidence of coercion such as prolonged detention or a threat to obtain a search warrant ... or repeated requests for consent, ... the trial judge . .. could properly conclude from the officer’s testimony that the appellants voluntarily consented to the search of the truck.” Id. at 1217 (citations omitted). The same is true in the case sub judice. No coercion is evidenced by the record; the disagreement seems based more upon a question of what parts of the van were expected to be searched. We think it clear that the trial judge could properly conclude that the inspector acted with defendant’s consent in searching the compartment in which the marijuana was found, and we decline to disturb his finding.

Having considered each of defendant’s points on appeal, and finding that none warrant reversal of the judgment and sentence imposed by the trial court, we affirm the same.

It is so ordered.

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


author: PER CURIAM. McDONALD, Justice, BOYD, Justice,

text:
    Luis Carlos ARANGO, Appellant, v. STATE of Florida, Appellee.
    No. 59678.
    Supreme Court of Florida.
    Jan. 21, 1982.
    Rehearing Denied April 8, 1982.

      Vincent J. Flynn of Flynn, Rubio & Tar-koff, Miami, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto and Joel D. Rosenblatt, Asst. Attys. Gen., Miami, for appellee.
   PER CURIAM.

Arango appeals his convictions of murder in the first degree and possession of a controlled substance and his sentence of death. He alleges that the trial court committed four errors. We find, however, that only three issues raise points that warrant discussion at any length. None of the issues raised require a reversal of the trial court’s judgment or sentence. Hence, we affirm appellant’s convictions and sentence.

In March of 1980, the Dade County police received a telephone call from the manager of a Miami apartment complex reporting a disturbance. Upon their arrival, the manager reported that subsequent to telephoning he had heard what he thought was the sound of glass breaking. The police went upstairs and knocked on appellant’s apartment door. A neighbor then motioned to them that some kind of activity was occurring at the other end of the apartment. Passing the front window, the officers observed cracked glass on the walkway and what appeared to be a bullet hole in the window. They knocked several times and, after receiving no response, entered through the unlocked kitchen door. Once inside, they found and detained appellant. A search of the bedroom was then conducted. On the bed lay the body of the deceased, who had an electrical cord wrapped around his neck, multiple lacerations on his face, and two gunshot wounds to his head. Cocaine, pistols, and $7,800 in cash, among other items, were seized from the premises.

The grand jury indicted appellant for first-degree murder and possession of a controlled substance. A motion to suppress evidence allegedly obtained illegally was filed and later denied, the trial judge having determined that the warrantless search was justified under the circumstances.

The jury found appellant guilty of both charges and recommended the death sentence. At the conclusion of the penalty phase of the proceeding, the trial judge found the existence of one aggravating and one mitigating circumstance and imposed the sentence of death.

Appellant first contends that the trial court erred in denying his motion to suppress evidence allegedly obtained by an illegal search and seizure. He relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which held that the fourth amendment provides protection against a warrantless entry into a person’s home for the purpose of making a routine felony arrest. However, the rule in Payton does not apply where there are exigent circumstances. As we have made clear in our decisions, the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry. This exception governs here.

As we recently held in Zeigler v. State, 402 So.2d 365 (Fla.1981), the police may enter a dwelling without a warrant if they have credible information that a person’s life may be in danger. In this case, the police acted under the reasonable belief that a person was either dead or dying inside appellant’s apartment. The telephone call and subsequent report from the manager, the cracked glass and bullet hole, and the neighbor’s indication of a commotion were sufficient indicia of an emergency situation. Accordingly, no warrant was required, and the motion to dismiss was properly denied.

Appellant next maintains that the instructions given to the jury impermissibly allocated the constitutionally prescribed burden of proof. At one point in the trial proceeding, the judge stated that if the jury found the existence of an aggravating circumstance, it had “the duty to determine whether or not sufficient mitigating circumstances exist to outweigh the aggravating circumstances.” This instruction, appellant argues, violates the due process clause as interpreted in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

In Mullaney the Supreme Court held that a Maine law requiring the defendant to negate the existence of malice aforethought in order to reduce his crime from homicide to manslaughter did not comport with due process. Such a rule, the Court wrote, is repugnant to the fourteenth amendment guarantee that the prosecution bear the burden of proving beyond a reasonable doubt every element of an offense. In Dixon we held that the aggravating circumstances of section 921.141(6), Florida Statutes (1973), were like elements of a capital felony in that the state must establish them.

In the present case, the jury instruction, if given alone, may have conflicted with the principles of law enunciated in Mullaney and Dixon. A careful reading of the transcript, however, reveals that the burden of proof never shifted. The jury was first told that the state must establish the existence of one or more aggravating circumstances before the death penalty could be imposed. Then they were instructed that such a sentence could only be given if the state showed the aggravating circumstances outweighed the mitigating circumstances. These standard jury instructions taken as a whole show that no reversible error was committed.

Appellant also argues that the trial court erred in imposing the death penalty. One aggravating circumstance was found applicable here: the homicide was considered “especially heinous, atrocious, or cruel.” § 921.141(5)(h), Fla.Stat. (1979). Appellant established in mitigation his total lack of prior criminal activity. § 921.-141(6)(a), Fla.Stat. (1979). He maintains that unless we are willing to recede from earlier capital cases construing this statute, his sentence of death is disproportionate punishment. Citing to Halliwell v. State, 323 So.2d 557 (Fla.1975), Swan v. State, 322 So.2d 485 (Fla.1975), and Taylor v. State, 294 So.2d 648 (Fla.1974), he claims that we are compelled to reduce his sentence from death to life imprisonment.

Looking at the facts present here, we see that the cases cited by appellant are clearly distinguishable. In the instant case, the trial judge found that appellant beat the victim with a blunt instrument many times about the head and body. Deep cuts were made on the face, causing severe hemorrhaging. The wire used in a TV remote control device was wrapped around the victim’s neck, choking him. A large towel stuffed into the victim’s mouth prevented his breathing. After beating and strangling him, appellant shot the victim twice in the head.

Hall ¡well, on the other hand, involved a love triangle in which the appellant mutilated the body of the deceased several hours after the murder was completed. We reduced Halliwell’s sentence from death to life imprisonment, holding that such conduct was not the kind contemplated by the legislature in providing for the consideration of aggravating circumstances. In the present case, the record shows that the beatings occurred prior to the murder, precisely the same factor we held in Halii well was “relevant in fixing the death penalty.” 323 So.2d at 561.

Swan is also different because there the trial judge overrode the jury’s recommendation of life imprisonment. As we have often stated, such a decision must be based on clear and convincing facts that the death penalty is appropriate. Tedder v. State, 322 So.2d 908 (Fla.1975). The state introduced no evidence showing why Swan should be electrocuted, and the record did not demonstrate facts sufficient to satisfy Tedder.

Taylor, like Swan, involved a trial judge’s rejection of a jury’s recommendation of a life sentence. We reversed the sentence of death, finding that a multiplicity of factors could have influenced the jury to be lenient, including the possibility that the appellant was not the “triggerman” in the murder for which he was charged. In the case before us the jury, in view of only one mitigating circumstance, recommended death. The trial judge, after considering the totality of circumstances and exercising his reasoned judgment, adopted the jury’s advisory sentence. x

As we said in Hargrave v. State, 366 So.2d 1, 5 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979), the death penalty statute does not contemplate “a mere tabulation of aggravating versus mitigating circumstances to arrive at a net sum.” Instead, it places upon the trial judge the task of weighing all these factors. We believe that the trial court properly performed this function.

For the reasons expressed, we affirm the convictions and sentence.

It is so ordered.

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

McDONALD, j., concurs in part and dissents in part with an opinion, in which BOYD, J., concurs.

McDONALD, Justice,

concurring in part/dissenting in part.

While I concur that there was no trial error, that there was sufficient evidence to sustain the conviction, and that it was the jury’s function to believe or disbelieve the defendant, I do not believe that this homicide justifies the death penalty. The trial judge predicates the imposition of the death penalty on the single aggravating factor that the crime was especially heinous, atrocious and cruel. The facts of this case do not support that finding, as we have defined it in State v. Dixon, 283 So.2d 1 (Fla.1973), beyond a reasonable doubt. Even if they did, that single aggravating factor should not, in this case, warrant the death penalty. The defendant, a Colombian, has no past criminal record, but was a user of drugs. The deceased, also a Colombian and a friend of the appellant, was a dealer in drugs from whom the defendant had previously purchased drugs. While there is a suspicion that the parties may have been involved in a drug transaction, no one knows why this homicide was committed. Nevertheless, the circumstances fall short of showing aggravating circumstances sufficient to impose the death penalty. I would reduce the sentence to life imprisonment.

BOYD, Justice,

concurs:

I concur in the majority opinion affirming guilt, but I concur with Justice McDonald’s opinion that life imprisonment and not death is the appropriate penalty.

      . Arango also contends that a prospective juror was improperly excused for cause. The record, however, clearly reveals that the venireman could not render an impartial decision as to appellant’s guilt. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

      . Jurisdiction vests under article V, section 3(b)(1) of the Florida Constitution, and section 921.141(4) of the Florida Statutes (1979).


text:
    THE FLORIDA BAR, Complainant, v. Vaughn C. BRENNAN, Respondent.
    No. 59738.
    Supreme Court of Florida.
    Jan. 28, 1982.
    Rehearing Denied April 8, 1982.
    Stanley A. Spring, Staff Counsel, Tallahassee, David G. McGunegle, Bar Counsel and John B. Root, Jr., Asst. Staff Counsel, Orlando, and Christy F. Harris, Chairman, Tenth Judicial Circuit Grievance Committee, Lakeland, of The Florida Bar, for complainant.
    B. Lee Elam, Brandon, for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on complaint of The Florida Bar and the report of a referee. Neither the respondent nor the bar has petitioned for review. We have jurisdiction. Art. V, § 15, Fla. Const.

The Florida Bar filed a three-count complaint against respondent. It alleged that in a first-degree murder trial respondent neglected his representation of the defendant by failing to sufficiently consult an expert psychiatric witness prior to trial and to develop this testimony at trial, failing to introduce medical records to support an insanity plea, failing to renew a motion for directed verdict at the close of the state’s evidence rebutting insanity, and failing to file anything beyond a notice of appeal of his client’s conviction and life sentence. Another attorney subsequently handled the appeal. The complaint further alleged that a check written to a client from respondent’s Attorney at Law account was returned for insufficient funds. The client got his money only after sending respondent a certified letter and complaining to the bar and the state attorney. The subject of the third allegation was a bar audit revealing that respondent was not preparing or maintaining required quarterly trust account reconciliations and that respondent’s general operating account was in overdraft status on several occasions.

The referee conducted a hearing and submitted his findings and recommendations to this Court. As to count I the referee found that respondent’s preparation of a defense was not so inadequate nor his handling of the appeal so neglectful as to warrant conviction for Canon 6 violations. He therefore recommended that respondent be found not guilty of violating Disciplinary Rules 6-101(A)(2) and (3). As to count II the referee found that issuing an insufficient-funds check and taking more than four months to pay his client constituted dereliction of respondent’s responsibilities as an attorney. He recommended that respondent be found guilty of violating Disciplinary Rules 1 — 102(A)(6) and 9-102(A) but not guilty of violating Disciplinary Rule 1-102(A)(4). As to count III the referee found that respondent’s overdrawn accounts could have been the result of bookkeeping errors, that his trust accounts were in order except for the quarterly reconciliations, that all insufficient-funds checks other than the one referred to in count II were promptly redeemed, and that respondent’s conduct did not involve moral turpitude. The referee’s recommendation was that respondent be found guilty of failing to file quarterly trust account reconciliations required by Integration Rule 11.02(4)(c). He recommended a finding of not guilty of violations of Disciplinary Rules 1-102(A)(4) and (6) and not guilty of the misconduct typified by The Florida Bar v. Davis, 361 So.2d 159 (Fla.1978).

Before recommending discipline the referee considered the fact that two years ago respondent was publicly reprimanded by this Court for revealing confidences or secrets of his client, using confidences or secrets of his client to the client’s detriment, handling litigation without adequate preparation, prejudicing his client during the course of the professional relationship, and asserting his personal views on the guilt or innocence of his client before a tribunal. The Fiorida Bar v. Brennan, 377 So.2d 1181 (Fla.1979). The referee also found it significant that in the instant proceedings respondent cooperated freely and extensively with the bar and the referee. The referee then recommended:

1. [Tjhat the respondent receive a public reprimand.
2. That respondent be placed on supervised probation for a period of one year, the conditions of which shall be:
(a) Payment of all costs assessed against him in this disciplinary proceeding.
(b) That during the probation period, he submit, upon request, his trust records for an audit by a staff auditor of The Florida Bar and the cost of such audit be taxable to the respondent.
(c) The filing by respondent with the Staff Counsel of The Florida Bar at three month intervals of:
(1) A statement that he has met the minimum trust accounting procedures of The Florida Bar and has made a reconciliation of his trust accounts balance quarterly.
(2) A statement that he has not issued any checks without sufficient funds in said account; and
(d) Failure to observe the conditions of the probation, or a finding of probable cause as to conduct of the respondent committed during the period of probation, shall terminate the probation. In such event, even though such finding of probable cause shall be made after the expiration of the period of probation the judgment shall be reconsidered and an appropriate judgment shall be entered. On termination of probation for failure to observe the conditions of probation or on a finding of probable cause for misconduct committed during the period of probation the attorney may be punished for contempt or suspended from the practice of law on petition by The Florida Bar and any such suspension shall continue until the respondent may be reinstated to the practice of law as provided elsewhere in these rules. Fla.Bar Integr.Rule Art. XI, Rule 11.10(1).

We adopt the findings and recommendations of the referee and order that respondent be disciplined as set forth above.

Costs in the amount of $1,955.54 are assessed against respondent.

It is so ordered.

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