text:
    Walter L. ALLEN, III v. Alice K. ALLEN.
    Civ. 2286.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    James Jerry Wood of Wood, Minor & Parnell, Montgomery, for appellant.
    N. T. Braswell, III of Rush ton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This appeal is concerned with the proper interpretation of a provision in a previous divorce decree.

Walter Allen and appellee, Alice K. Allen, were divorced on November 29, 1976. The decree required Dr. Allen to “pay the mortgage payments due on said mortgage and the note secured thereby until the said mortgage and note is paid in full.”

On June 15,1979 Dr. Allen petitioned the court to be relieved of the mortgage payments, or, in the alternative, to have the divorce decree provision relating to mortgage payments clarified. The court did not relieve Dr. Allen of the mortgage payments but it did interpret or construe the provision in question to mean that the mortgage payments due to be made included taxes and insurance, and it ordered the divorce decree enforced as written.

The evidence shows that Dr. Allen made the required mortgage payments, i. e. principal, interest, taxes and insurance, until December 1979, at which time he mailed the mortgagee notice that he would pay the principal and interest but not the taxes or insurance.

Mrs. Allen paid the arrearage and filed a petition requesting the court to interpret the divorce decree to mean that Dr. Allen is required to pay the insurance and taxes as part of the mortgage payment.

In its order of March 10, 1980 the circuit court held that the mortgage payments included the taxes and insurance as well as the principal and interest, and further ordered Dr. Allen to reimburse Mrs. Allen the funds she had paid on the delinquent mortgage payments. This appeal followed.

The dispositive issue is whether the term mortgage payments as used in the divorce decree includes taxes and insurance. We find that it does.

The mortgage agreement specifically provides:

1. Payment of Principal and Interest. Borrower shall promptly pay when due the principal of and interest on the indebtedness evidenced by the Note, prepayment and late charges as provided in the Note, and the principal of and interest on any Future Advances secured by this Mortgage.
2. Funds for Taxes and Insurance. Subject to Lender’s option under paragraphs 4 and 5 hereof, Borrower shall pay to Lender on the day monthly installments of principal and interest are payable under the Note, until the Note is paid in full, a sum (herein “Funds”) equal to one-twelfth of the yearly taxes and assessments which may attain priority over [this] Mortgage, and ground rents on the Property, if any, plus one-twelfth of yearly premium installments for hazard insurance, plus one-twelfth of yearly premium installments for mortgage insurance, if any, all as reasonably estimated initially and from time to time by Lender on the basis of assessments and bills and reasonable estimates thereof.

Clearly, the mortgage agreement requires the borrower to pay a pro rata amount of the taxes and insurance each month along with the principal and interest due.

The original divorce decree provided in part that:

Walter L. Allen, III shall continue to pay the mortgage payments due on said mortgage and the note secured thereby until the said mortgage and note is paid in full.

Judgments are to be construed like other written instruments, and, if there is any uncertainty, the court must construe them so as to express the intent of the parties. Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978).

We find, as did the trial court, that the parties intended that Dr. Allen was to include in the monthly mortgage payments a pro rata amount of the taxes and insurance. We hold such a finding to be reasonable in view of the provisions of the mortgage agreement and the fact that Dr. Allen paid the taxes and insurance as a part of the monthly mortgage payment for a number of years. Thus we conclude that the trial court properly interpreted paragraph two of the questioned divorce decree, and its judgment is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Hi Ray EVERS and Marjorie S. Evers, Ind. and d/b/a Ra-Mar Clinic v. LINK ENTERPRISES, INC. and STATE of Alabama v. LINK ENTERPRISES, INC.
    Civ. 2287, 2287-X.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.

      Charles A. Graddick, Atty. Gen. and Herbert I. Burson, Jr., Counsel, Dept, of Revenue and Asst. Atty. Gen. and John J. Breckenridge, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for State.
    Harry Cole and Gerald W. Hartley of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for Link Enterprises, Inc.
    J. Paul Lowery, John T. Kirk, Montgomery, for appellants Evers.
   WRIGHT, Presiding Judge.

This is an unusual case and one of first impression which requires this court’s consideration of Rule 42(a) of the Alabama Rules of Civil Procedure.

The matter began with an assessment of sales and use taxes by the State Department of Revenue against Link Enterprises, Inc. From final assessment, Link paid the assessment and appealed to the Circuit Court of Montgomery County. At about the same time, Link filed a declaratory judgment suit against H. Ray Evers, et al. (hereinafter referred to as Evers), seeking a declaration that in the event the tax assessments against Link were upheld by the circuit court, Evers was liable to Link for the amount of the assessment under the principle of unjust enrichment.

All of the assessment cases of Link were consolidated upon motion of the State. Link moved for consolidation of the assessment cases and its suit for declaratory judgment against Evers. The State vigorously opposed consolidation, contending that the appeal of a tax assessment was a purely statutory action to which only the State and the taxpayer could be parties. Reliance of the State was upon authority of cases of this court and our supreme court. Those cases are: State v. Aluminum Ore Co., 263 Ala. 422, 82 So.2d 800 (1955); Birmingham Vending Co. v. State, 251 Ala. 584, 38 So.2d 876 (1949); State v. Colonial Refrigerated Transportation, Inc., 48 Ala.App. 46, 261 So.2d 767 (1971), affirmed, 288 Ala. 433, 261 So.2d 772 (1971). The State then and now, in brief, identifies consolidation under Rule 42(a) with joinder or adding of parties or merger of cases. (Consolidation is not merger as we shall presently discuss.) In spite of the opposition, the court ordered consolidation for trial.

The eases were ultimately submitted to the trial court upon an agreed statement of facts subscribed to by all parties, together with the pleadings and exhibits.

So that what we say hereafter may be fully understood, we will describe the relationship of Link and Evers and explain the basis for the assessment against Link.

Link Enterprises, Inc. leased residential premises known as Hampton Hall to Evers. Evers was engaged in operating a health facility for treating patients. Hampton Hall was to be a residence for “guests” while they underwent tests or treatment in the adjoining or nearby facility. No medical treatment was to be provided on the premises of Hampton Hall. Evers was not licensed as a hospital, nursing home, sanatorium or as a retailer of personal property. Link and Evers subsequently on October 14, 1976, entered into a contract whereby for a price of $15 per day per patient, to be paid by Evers, Link would provide three meals for the “guests” of Evers. Evers would direct the content of the meals which might vary according to a prescribed diet for each “guest.”

The court entered a finding of fact that Evers was not operating a hospital or institution but was in fact selling meals to his “guests” at retail. However, the court also found that though Evers sold the meals at retail, Evers had no sales tax license and was thus not a licensed retailer. Applying our holding in State v. Advertiser Co., 337 So.2d 942 (Ala.Civ.App.1976), cert. denied, 337 So.2d 947 (Ala.1976), the court deemed itself compelled to hold Link liable for the sales tax on its sales to Evers because it sold for resale to an unlicensed retailer. (The principle of Advertiser is that § 40-23-1 Code of Alabama (1975) places a gross receipts tax on all sales of tangible personal property except wholesale sales. Wholesale sales are defined by the statute as sales of tangible personal property by wholesalers to licensed retail merchants for resale. If a wholesaler sells to a non-licensed retailer for resale, the sale is not a wholesale sale and is taxable as a retail sale.) The court therefore found Link liable to the State for the amount of the assessment.

The court further found that Evers had, in fact, sold the meals purchased from Link to his “guests” as ultimate consumers, and should have collected sales tax thereon. The court then found it unjust enrichment for Evers to escape the burden of collection and payment of sales tax upon his sales through his failure to procure a license as a retailer and thus cause Link to be assessed and have to pay instead. It therefore adjudged Evers liable to reimburse Link in the specific amount of the assessment together with interest.

The judgments against Link in the tax cases and against Evers in the declaratory suit, though contained in one instrument, were, in fact, separately ordered and adjudged.

Appeal from the entire order was taken by Evers. In other words, Evers complains of error in the judgment against Link in favor of the State and also of the judgment against Evers and in favor of Link. For some reason, the State, though having full judgment in its favor, chose to file what it terms a cross-appeal complaining of error in the granting of the consolidation, contending as we heretofore said that by consolidation, Evers was made a party to the tax case. We frankly are at a loss to understand why the State, a fully successful party with full payment of its assessment in its pocket, wishes to cross-appeal because of a purely procedural pre-trial order. Link replies to the issues presented by Evers, particularly the issue that the judgment in favor of Link and against Evers is erroneous as a matter of law.

Having as succinctly as possible laid out what has occurred, we now present our view and decision on this unusual case.

First, we do not decide whether consolidation of the tax cases with the suit by Link against Evers for trial was proper or improper. We do not consider that issue before us. The federal courts have said that consolidation is permitted as a matter of convenience and economy in cases which may have a common issue of fact or law, but it does not merge the suits into a single cause, or change the rights of the parties or make those who are parties in one suit parties in another. Wright and Miller, Federal Practice and Procedure, Civil, Vol. 9, § 2382. Evers was not a party to the appeal from the tax assessment by Link. Even if properly consolidated for trial because of a common issue, the case between Evers and Link was not merged with the tax appeals. Each case maintained its separate identity and parties. Thus, Evers could not appeal from the judgment against Link. Only parties to a judgment may appeal from it. • Evers’ appeal from the judgment against Link must therefore be dismissed.

The cross-appeal of the State, the successful party to the judgment, which cross-appeal is not based upon the inadequacy of the judgment, is without merit for absence of injury and will not be considered on appeal. Trammell v. Moses, 358 So.2d 748 (Ala.Civ.App.1978); DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973); Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966). It also follows that if the’ appeal of Evers in the case is without authority and must fall, the cross-appeal must fall with it. We hardly believe’the State wishes a reversal of its winning judgment in any event.

The appeal of Evers from the judgment against him in the Link v. Evers case is proper; however, it exceeds the jurisdictional limits of this court and is not an appeal from a matter arising from a ruling of a state agency. That appeal must be transferred ex mero motu under § 12-3-10, Code of Alabama (1975) from this court to the supreme court.

Therefore, it is the judgment of this court that the appeal of Evers from the judgment in the tax appeal cases be and is dismissed for want of standing. Thagard v. Brock, 282 Ala. 262, 210 So.2d 182 (1968). The cross-appeal of the State is also dismissed therewith. The appeal of Evers from the judgment against him in circuit court Case Cv-79-404-T is transferred to the supreme court for want of jurisdiction. Section 12-3-15, Code of Alabama (1975).

APPEAL DISMISSED in Cases Cv-79-125-T, Cv — 79-126-T and Cv-79-127-T.

APPEAL TRANSFERRED in Case Cv-79-404-T.

BRADLEY and HOLMES, JJ., concur.

      . Was there a common issue?


author: BOOKOUT, Judge.

text:
    Chester TICE, alias v. STATE.
    3 Div. 140.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied May 27, 1980.

      David G. Flack, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Second degree burglary and grand larceny; sentence: ten years imprisonment.

Around 1:00 p. m. on March 2, 1979, the appellant broke into and entered Apartment 101-A of the Vieux Carre’ apartment complex in Montgomery. Within minutes after his departure, he was apprehended and arrested by Montgomery Police Detectives W. T. Sheriff and J. L. Roy who had him under observation throughout the morning.

I

Counsel for the appellant filed a motion to suppress “evidence oral and tangible obtained directly or indirectly from Defendant.” Appellant contends that the trial court erred in denying that motion. Specifically, he asserts (1) that there was no probable cause to arrest him, consequently any evidence obtained as a result thereof was inadmissible, and (2) that his confession was involuntary and unintelligently made.

A

During a hearing on appellant’s motion to suppress, Montgomery Police Detective W. T. Sheriff testified that he and his partner, Detective J. L. Roy, observed the appellant throughout the morning on March 2. Detective Sheriff stated that the appellant was under observation because he was a suspect in various burglaries. After following the appellant from his home to various places, he observed the appellant leave his home around 12:30 or 1:00 p. m. and drive to the Vieux Carre’ apartments. He and his partner parked across the street and photographed the appellant’s actions. He saw the appellant exit his car, walk around an apartment building, return to his car, attach a utility belt with tools to his waist and enter the apartment building. Within three to four minutes, the appellant exited carrying a brown paper sack. After removing his utility belt and placing it and the sack in his car, the appellant drove away. The detectives immediately apprehended him. Their inspection of the paper sack revealed the contents to be a collection of various old coins.

The utility belt and tools (including a pipe wrench) and the door knob to the burglarized apartment were admitted into evidence without objection or by stipulation of appellant’s counsel. Likewise, a group of photographs illustrating appellant’s actions after he had exited from the apartment building were admitted into evidence without objection.

An officer may arrest without a warrant when “a felony has been committed and he has reasonable cause to believe that the person arrested committed it.” Section 15-10-3, Code of Ala.1975. The rule of reasonable or probable cause is a “practical, nontechnical conception.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):

“Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. . . .” (Citation omitted.)

In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed or was committing an offense. The officer’s good faith in making the arrest alone is not sufficient. Braxton v. State, Ala.Cr.App., 350 So.2d 753 (1977).

In the instant case Detective Sheriff suspected that the appellant had been involved in numerous unsolved burglaries. While mere suspicion or knowledge of an accused’s reputation alone are not enough to negate the warrant requirements of the Fourth Amendment, they are factors to be considered in determining whether probable cause existed for the arrest. Young v. State, Ala.Cr.App., 372 So.2d 409 (1979); Knight v. State, Ala.Cr.App., 346 So.2d 478, cert. denied, Ala., 346 So.2d 483 (1977). In Young the officers observed no conduct out of the ordinary which would lead a prudent person to believe a felony was being committed. In that case the officers acted only on the suspect’s reputation and upon their own suspicions. In the instant case the appellant’s conduct observed by the officers was substantially more incriminating than that observed in Young, supra.

Detective Sheriff knew the appellant did not reside at the Vieux Carre’ apartments. His observations of the appellant’s actions at the apartment complex revealed that the appellant first walked around the apartment building apparently “easing” it. Appellant returned to his car and placed the utility belt with tools around his waist, reentered the apartment building, and after a brief time exited carrying a brown paper sack with which he had not previously entered. He then got in his car and drove away. Based upon Detective Sheriff’s observation of appellant, he had facts and circumstances within his knowledge to lead him or any other prudent person to believe that the appellant had committed a burglary. The actions of the two officers here evidenced good police work. We find that appellant’s arrest was legal and that the evidence, procured as a result of such, was not rendered inadmissible on the basis of a lack of probable cause.

. B

Appellant next asserts that the trial court erred in denying his motion to suppress his confession on the ground that it was involuntarily and unintelligently given. Appellant contends that he was suffering from alcoholism and was intoxicated to such an extent that he could not voluntarily waive his Miranda rights!

Detective Sheriff testified that after the appellant was apprehended and arrested around 1:30 p. m. he was transported to police headquarters. There he read the appellant his Miranda rights. Around 2:15 p. m. the appellant read and then signed a waiver of rights form which also contained the Miranda warning. That form was introduced into evidence without objection. Detective Sheriff testified that no reward was offered or threat made to induce the appellant to make. a statement. He said that the appellant then made an inculpatory statement and signed it at 4:45 p. m.

Detective Sheriff stated that although he was aware that the appellant frequented bars he had no knowledge of his drinking habits. Neither did he see the appellant take a drink on March 2 although the appellant told him he had been drinking. He testified that no deal was made for the appellant to be released on bond and no promise of leniency was made if the appellant would aid in their investigation of numerous unsolved burglaries in exchange for his statement. ' The appellant did in fact help solve many of those burglaries, but his assistance in that matter was requested after the instant statement had been made and signed.

The appellant presented several witnesses who testified about alcoholism in general as well as his specific drinking habits and problems. His wife, Lela Tice, testified that he had not been regularly employed during the prior year. She said the appellant had a drinking problem and would normally begin drinking after she left home for work each morning. Mrs. Tice testified that around 2:30 p. m. on March 2 she was notified by her son of her husband’s arrest and, after getting off work around 4:00 p. m., went to see him at city hall. She spoke to Lieutenant T. J. McClain who told her that they were attempting to sober up the appellant, that they did not need him in jail, but needed him on the outside to help them. Mrs. Tice was later allowed to post bond for the appellant.

Clarence Cook, appellant’s probation officer, testified that it was within his discretion to allow a parole violator, as was the appellant, to be released on bond. He said no deal was arranged with him in exchange for the appellant’s release. He stated that on March 13 he arrested the appellant for violation of his parole. In a report dated March 12, Cook stated that the detectives involved in appellant’s case noted that the appellant had been drinking heavily, but was not “staggering drunk” and that the appellant committed the instant offense while under the influence of alcohol.

Lieutenant T. J. McClain testified that on March 2 he transported the appellant from the scene of the arrest to city hall. He stated that at that time he read appellant his Miranda rights. While Lieutenant McClain was not involved in the investigation of the case or the interrogation of the appellant which resulted in his making a statement, he did ask Clarence Cook not to arrest the appellant if he cooperated with the police, but rather to allow his wife to post bond. Lieutenant McClain testified that he made no deal with the appellant to arrange for bond in exchange for his statement. He stated that in his opinion the appellant was not intoxicated on March 2.

Dr. Norman D. Huggins, a practicing psychiatrist from Birmingham whose chosen field of expertise is in the area of alcohol and drug abuse, testified to the general symptoms and effects that excessive amounts of alcohol may have on certain individuals. Dr. Huggins stated that the degree of such effect would depend upon one’s cultural background, physical condition, past history of alcohol consumption, quantity of alcohol consumed, time in which it was consumed, and food consumption pri- or to, during or after the time of alcohol consumption. He testified that whether one could consciously waive his Miranda rights would depend upon his tolerance to alcohol — with one having a higher tolerance being more capable of functioning normally than one with a lower tolerance.

William Sabb, a local tavern owner, testified that the appellant frequented his establishment about five days a week remaining for various periods of time. He stated that the appellant on occasion drank excessively.

Detective Sheriff, in rebuttal, testified that on the date of the arrest the appellant was not staggering, did not have slurred speech, did not have bloodshot eyes, and did not appear to be intoxicated. The appellant did not testify in his own behalf at the hearing.

The voluntariness of an alleged confession is a question of law addressed to the trial court whose ruling, upon preliminary proof, will not be disturbed on appeal unless it appears to be contrary to the great weight of the evidence or is manifestly wrong. Garrison v. State, Ala.Cr.App., 372 So.2d 55 (1979). The degree of intoxication which would affect the voluntariness of a statement is a question of fact initially addressed to the trial court and, depending upon its ruling, then to the jury for its consideration. Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976); Winn v. State, 44 Ala.App. 271, 207 So.2d 138 (1968).

Intoxication, short of mania or such impairment of the will and mind as to make an individual unconscious of the meaning of his words, will not render a statement or confession inadmissible. Medders v. State, Ala.Cr.App., 342 So.2d 49 (1977); Scott, supra.

The appellant’s proof indicates only one situation wherein his intoxication at the time of the confession could be supported, that being the parole report of Clarence Cook dated March 12. That report indicates that the detectives in charge of the appellant’s case thought the appellant had been drinking heavily on the date of the offense, but was not staggering drunk. However, this in and of itself is insufficient testimony to establish the degree of intoxication necessary to render the appellant’s confession involuntary pursuant to the cases set out above. We therefore conclude that the trial court properly found the confession to be voluntarily and intelligently given.

II

Appellant contends that his confession should not have been admitted prior to establishing the corpus delicti of the offense charged.

Appellant was charged in a two count indictment alleging the crimes of second degree burglary and grand larceny. The jury’s verdict was general in nature convicting the appellant “as charged in the indictment.” It is the rule in Alabama that a general verdict of guilty on a two count indictment is valid where the evidence would sustain a verdict of guilty under either count and the sentence imposed is no greater than should have been imposed on any one of the counts. Kearley v. State, 56 Ala.App. 608, 324 So.2d 322 (1975). Both second degree burglary and grand larceny carry a penalty of not more than ten years imprisonment, as was imposed in the instant case. Sections 13-2-41 and 13-3-50, Code of Ala.1975.

Testimony elicited from Detective Sheriff during the State’s case in chief was the same as that previously recited during the hearing on the motion to suppress. The appellant’s confession was admitted over objection after Detective Sheriff described his observation and arrest of the appellant.

The traditional rule in Alabama is that a defendant’s confession may not be admitted into evidence until proof of the corpus delicti has been established by evidence independent of the confession. The corpus delicti need not be established solely by direct evidence as circumstantial evidence may suffice. Gamble, McElroy's Alabama Evidence, § 200.13 (3rd ed. 1977). Equally as established as the rule is an exception to it. That is, if a confession is inadmissible when offered because of failure of proof of the corpus delicti, the error is cured by subsequent proof of the corpus delicti. Cooley v. State, 233 Ala. 407, 171 So. 725 (1937); Floyd v. State, 82 Ala. 16, 2 So. 683 (1886). In Laffitte v. State, Ala.Cr. App., 370 So.2d 1108, cert. denied, Ala., 370 So.2d 1111 (1979), this court, citing Cooley, supra, stated:

“It makes no difference, as concerns reversible error, whether the corpus de-licti be proved before or after the admission of the confession so long as it is proved at sometime during the trial.

In Watters v. State, Ala.Cr.App., 369 So.2d 1262, 1271 (1978), reversed on other grounds, Ala., 369 So.2d 1272 (1979), we stated:

“. . . inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti.

In the instant case Detective Sheriffs testimony did not prima facie establish the corpus delicti of either offense charged in the indictment although it created a strong inference that an offense had occurred sufficiently strong to support probable cause for making the arrest. However, testimony subsequently elicited established both offenses conclusively. The State proved the apartment was broken into and that the coins in appellant’s possession came from the apartment. The pipe wrench found in appellant’s car was identified as having made the wrench marks on the broken door knob of the apartment. Likewise, appellant had no official connection with the apartment complex and had no one’s permission to enter the apartment. Consequently, if the confession was improperly admitted initially, later proof of the corpus delicti cured that error.

Ill

Appellant asserts that the court erred in allowing George C. Smith, Jr., the son of the owner, to testify as to the fair market value of the coins. He contends that only face value of the coins should have been established through this witness because the numismatic value of the coins could only be established by expert testimony. Smith testified that although he was not a coin collector, he had researched the fair market value of the coins through a magazine. He valued them at $200.

Section 12-21-114, Code of Ala.1975, states:

“Direct testimony as to the market value is in the nature of opinion evidence; one need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity for forming a correct opinion.”

The only predicate necessary for receipt of such testimony is that the witness has had an opportunity to form a correct opinion of the market value which is a question to be determined by the trial court. State v. Self, 293 Ala. 541, 307 So.2d 11 (1975). The trial court’s determination will not be reversed on appeal unless its ruling is shown to be clearly unjust. Thomas v. State, Ala. Cr.App., 338 So.2d 1045 (1976); Morris v. State, 25 Ala.App. 494, 149 So. 359 (1933). Our review of the record leads us to the conclusion that Smith had sufficient familiarity with the coins so as to state an opinion as to their fair market value. We therefore find no abuse of discretion in the trial court’s ruling.

IV

Appellant’s last assertion of error concerns the trial court’s refusal to give three requested jury instructions. The. requested instructions dealt with the jury’s consideration of voluntary or involuntary intoxication, the degree of intoxication and its effect on the appellant’s intent, and the law of insanity, respectively.

The requested charges in question contained many typographical errors, were grammatically incorrect, confusing, misleading, and were incorrect propositions of law. Moreover, the trial court correctly covered the subject of the requested charges in its oral charge. Section 12-16-13, Code of Ala.1975. We therefore find no error in the trial court’s refusal to give those requested instructions.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex Parte Chester TICE. (Re: Chester TICE, alias v. STATE of Alabama).
    79-698.
    Supreme Court of Alabama.
    Aug. 15, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, AL-MON and EMBRY, JJ., concur.


author: ADKINS, Justice. ENGLAND, C. J.,

text:
    Paul Edward MAGILL, Appellant, v. STATE of Florida, Appellee.
    No. 51699.
    Supreme Court of Florida.
    May 8, 1980.
    As Revised On Denial of Rehearing Sept. 8, 1980.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Michael H. Davidson, Charles A. Stampelos and Raymond L. Marky, Asst. Attys. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death.

The defendant, Magill, seventeen years of age at the time, robbed a small store, abducted the female attendant, raped her, and then killed her. An indictment was returned on January 6, 1977, and defendant was arraigned on January 17, 1977, at which time the public defender was appointed to represent the defendant. On February 1, 1977, the court ordered an examination of defendant to determine his competency to stand trial. On March 4, 1977, the defendant filed a motion for continuance on the ground that he had not yet received the reports of the appointed psychiatrists. The reports of the psychiatrists were filed on March 8 and March 14. The defendant filed a notice of intent to rely upon the defense of insanity on March 16; on the game day he filed another motion for continuance on the ground that he had been unable to take the deposition of the examining psychiatrists. The trial began on March 21, 1977.

Defendant says the trial court committed reversible error in denying the motions for continuance. The psychiatric evaluations were performed to determine defendant’s competency to stand trial. Those reports conclude the defendant was competent to stand trial and was sane at the time of the commission of the offense. The testimony of the psychiatrists would be inadmissible on the issue of guilt. In Campbell v. State, 227 So.2d 873 (Fla.1969), we held that the proffered testimony of a psychiatrist that the defendant, though able to distinguish between right and wrong, had a mental deficiency, and might not be able to conform his acts to the requirements of law, was not relevant to the question-of whether or not the defendant was legally insane under the McNaghten test. Such testimony was, therefore, inadmissible.

In criminal eases an application for a continuance is addressed to the sound judicial discretion of the trial court, and the denial of such a motion should not be reversed by an appellate court unless there has been a palpable abuse of this judicial discretion. This abuse of discretion must clearly and affirmatively appear in the record. Pittman v. State, 51 Fla. 94, 41 So. 385 (1906). There has been no showing of palpable abuse of discretion and we therefore refuse to say the trial court committed error.

Defendant next contends that during voir dire examination, the state attorney gave an erroneous explanation of the function and duties of the jury. This contention is without merit. The trial court instructed the jury as to their duties and functions, and these instructions were correct. Any misstatement by the state attorney during the voir dire examination was cured by appropriate instructions from the court.

During voir dire examination of the jury several unreported bench conferences were held. We do not approve unreported bench conferences, but under the record of this case, the defendant has failed to show reversible error.

Defendant says that the trial court committed error in excusing Juror Bonner for cause. In support of this contention defendant cites Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), where the principle is established that a prospective juror cannot be excused for cause in a capital case simply because the juror is opposed to the death penalty. However, Witherspoon also says the court may exclude a venireman whose objections to the death penalty interfere with his or her ability to follow the law in the case.

The record discloses that Juror Bonner would not vote for a conviction of first degree murder, regardless of the evidence, because of her objection to applying the death penalty to a defendant on the basis of age. It was apparent from the examination that she would be unable to follow the law because of her bias or prejudice towards inflicting the death penalty upon those under the age of twenty-one years. As Juror Bonner was properly excused, this contention of the defendant is also without merit.

During the sentencing phase of the proceedings, the defendant’s attorney attempted to limit the scope of direct examination of the defendant to a time frame prior to the robbery so as to show his understanding of emotional conflicts and reasons for the robbery. Defendant says that, over repeated objections, the prosecutor was permitted to cross-examine him on his thinking and acting out what occurred beyond the robbery. Actually the prosecutor attempted to stress the aggravating circumstances during his cross-examination of defendant in the sentencing phase. In State v. Dixon, 283 So.2d 1, 7 (Fla.1973), we said:

Another advantage to the defendant in a post-conviction proceeding, is his right to appear and argue for mitigation. The State can cross-examine the defendant on those matters which the defendant has raised, to get to the truth of the alleged mitigating factors, but cannot go beyond them in an attempt to force the defendant to prove aggravating circumstances for the State. A defendant is protected from self-incrimination through the Constitutions of Florida and of the United States. Fla.Const., art. I, § 9, F.S.A., and U.S.Const., Amend. V. In no event, is the defendant forced to testify. However, if he does, he is protected from cross-examination which seeks to go beyond the subject matter covered on his direct testimony and extend to matters concerning possible aggravating circumstances.

The defendant raised the matter of “Paul’s emotional turmoil and problems” for consideration as a mitigating circumstance. Defendant claims that the exposition of that topic was strictly limited to his mental state prior to the robbery and that, therefore, the state exceeded the proper bounds of cross-examination when the state explored defendant’s mental state in regard to the rape and murder of the victim. If the defendant opens the door as to his mental state prior to and during the commission of a crime, the state, during the sentencing procedure, is free to explore that area on cross-examination. Such cross-examination may be geared toward the mental attitude of defendant for a reasonable time after the commission of the crime.

Defendant complains because he was not allowed to answer the question, “How do you feel at this time, Paul, concerning the acts that you have done?” The state of mind of a murderer during or immediately after the commission of the crime may be legitimately examined for remorse. His state of mind three or four months later, when facing the death penalty, may or may not be relevant. In any event, the record shows many instances where defendant was allowed to bring out remorse as a mitigating factor. The error if any, in not allowing defendant to once again express remorse is harmless.

We next consider the propriety of the death sentence. The record clearly shows that defendant first robbed the victim and kidnapped her while in the process of fleeing the site of the robbery. He then took the victim to a wooded area and raped her. As they were returning to the car after the rape, the victim begged that she not be injured. Defendant realized that she would be able to identify him, so he shot her three times, “twice in the head and once in the chest.” Defendant reaffirmed the details of a confession while on the stand at trial, although he attempted to recant the portion of his confession where he stated that he had killed the victim to avoid identification. The jury obviously believed the confession and not the recantation. This is well within their province. Alvord v. State, 322 So.2d 533 (Fla.1975); Ford v. State, 251 So.2d 562 (Fla.3d DCA 1971); Wilson v. State, 208 So.2d 479 (Fla.3d DCA 1968). The record shows that the victim was shot in the head and fell to the ground, after which defendant deliberately shot her twice more, once in the head and once in the chest. The chest shot was at „such close range that it left powder burns. The record is clear that defendant had a cold, calculated design to effect the death of the helpless victim. This is evident from the number of times defendant shot the victim-with his .44 caliber pistol, the proximity of the muzzle of the pistol to the victim’s chest, and defendant’s statement to the police that he shot her to avoid identification and made sure that she was dead.

In Meeks v. State, 339 So.2d 186 (Fla.1976), the victim was killed to avoid identification. Meeks was only twenty-one years of age, Magill was nearly eighteen. Meeks robbed a convenience store immediately preceding the murder. Magill robbed a convenience store and raped the victim preceding the murder. The only significant factual difference between Meeks and the case before us is that in Meeks the defendant did not rape his victim before he murdered her. The death penalty was awarded in Meeks.

Defendant’s reliance upon Halliwell v. State, 323 So.2d 557 (Fla.1975), is not well placed. The defendant in Halii well was involved in a love triangle which culminated in defendant’s beating the husband to death after the husband had beat the wife. The motive was certainly different.

It is apparent that the trial judge used a reasoned judgment and, in the absence of sufficient mitigating circumstances, the death penalty was justified. The Court found that there were “no mitigating circumstances which outweigh the aforementioned aggravating circumstances.” However, the court did not specifically list the mitigating circumstances which he may or may not have considered. Even though the trial judge may have considered some mitigating circumstances, he is charged with the further responsibility of articulating them, so as to provide this Court with the opportunity of giving a meaningful review of the sentence of death. As stated in State v. Dixon, 283 So.2d at 8:

The fourth step required by Fla.Stat. § 921.141, F.S.A., is that the trial judge justifies his sentence of death in writing, to provide the opportunity for meaningful review by this Court. Discrimination or capriciousness eannot stand where reason is required, and this is an important element added for the protection of the convicted defendant. Not only is the sentence then open to judicial review and correction, but the trial judge is required to view the issue of life or death within the framework of roles provided by the statute.

A most important safeguard is the propounding of aggravating and mitigating circumstances, which are determinative of the sentence imposed. Under the circumstances, it is necessary for us to set aside the sentence of death and remand the case to the trial judge for the purpose of making proper findings of fact and then, imposing an appropriate sentence. It is, of course, unnecessary to impanel .another jury.

The judgment of conviction is affirmed. The sentence of death is vacated and the cause remanded to the trial judge for further proceedings consistent with this opinion.

It is so ordered.

BOYD, OVERTON and ALDERMAN, JJ., concur.

ENGLAND, C. J.,

concurs fully in the affirmation of Magill’s conviction but in result only as to the vacation of Magill’s sentence.


author: ALDERMAN, Justice. BOYD, Justice,

text:
    Frank Anthony ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 52929.
    Supreme Court of Florida.
    June 12, 1980.
    Rehearing Denied Sept. 12, 1980.

      Jack 0. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, and W. C. McLain, Sp. Asst. Public Defender, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   ALDERMAN, Justice.

Frank Anthony Ross was adjudged guilty of murder in the first degree and was sentenced to death. At the time he committed the offense, he lacked fifteen days being sixteen years of age. His conviction and sentence are before this Court on direct appeal pursuant to article V, section 3(b)(1), Florida Constitution. Ross also appeals his conviction of robbery.

He raises several points on appeal relating to his convictions which include whether the trial court erred in ruling that his confession was freely and voluntarily given; whether certain remarks made by the judge during instructions to the jury constitute reversible error; whether the trial court erred in denying a request by Ross for additional inquisition into his sanity; and whether the court erred in allowing the prosecutor on cross-examination to ask the psychologist, whom the defense had called as a witness, if Ross knew right from wrong. We find none of these arguments to be meritorious and therefore affirm the convictions. Several issues are also raised which relate to the sentencing phase of this case which are: whether the court erred in considering that the crime was committed during the course of a robbery and that it was committed for pecuniary gain as two separate aggravating circumstances, whether the court erred in finding that murder was committed to avoid lawful arrest, whether the court erred in not finding as a mitigating circumstance that Ross had no significant prior criminal activity, and whether the court improperly gave undue weight to the jury’s recommendation that the death penalty be imposed. We find that the trial court did give undue weight to the jury’s recommendation, and, for this reason, we remand the cause for resentenc-ing by the trial judge. We also advise the trial court not to “double up” by considering as two separate aggravating circumstances that the crime was committed during the course of a robbery and that it was committed for pecuniary gain.

Ross, along with a co-defendant, was charged with first-degree murder and robbery of a sixty-four-year-old woman. The victim had been stomped to death. Ross had gained entrance into the victim’s home under the pretext of wanting a drink of water. Prior to the time the victim was attacked, Ross had a knife concealed in his hand behind his back and told the victim, “I kill you.” After attacking the victim and ransacking the house for valuables, Ross again stomped the disabled woman and then pulled the telephone from the wall. The pathologist who performed the autopsy stated that the victim had sustained a severe beating to her head and face. He described her body as having several bruises and abrasions on the face, multiple fractures to the skull, facial bones and jaw, severe injury to the brain, and large areas of hemorrhaging between the scalp and skull. Death resulted from cerebral injuries. It is undisputed that Ross did the actual stomping. During interviews with the police at which his parents were present, Ross confessed to the murder and robbery. At trial, Ross testified in his own behalf and demonstrated how he had stomped the victim.

Prior to trial, the court, upon defense motion, ordered that Ross be examined by Dr. Jordan, a psychologist whose credentials are not questioned, to determine whether Ross was able to assist his counsel in the preparation of a defense of the crime for which he was charged. Dr. Jordan determined that Ross was competent and capable of assisting counsel in his defense. Ross subsequently requested further inquisition into his sanity and asked the court to appoint a physician or psychiatrist to conduct this inquiry. After hearing, the trial court denied this request. He also filed a motion to suppress his confession on the basis that he was incapable of making a voluntary waiver of his Miranda rights because of his age and low mental intelligence. After hearing at which Dr. Jordan testified that Ross had the ability to comprehend his Miranda rights, the trial court denied this motion.

Although conceding that he was repeatedly advised of his Miranda rights, that his parents were present during his questioning by police officers, and that the officers used no force, promises, or other coercion to obtain his statement, Ross contends that his confession was not freely and voluntarily given since his ability to understand his rights when read to him was questionable in light of his retarded intellectual capacity. He contends that his youth and immaturity, the stressful circumstances of the questioning, and the alleged ineffectiveness of parental advice vitiate the voluntariness of his confession. His overall intellectual functioning with an IQ of sixty-six was rated by Dr. Jordan as mildly retarded. His performance IQ was rated as eighty, which is the dull normal range, while his verbal IQ was fifty-five.

The State responds that Ross was advised of his rights seven or eight times from the time he was first taken into custody, that each time he stated he understood his rights, and that he indicated he did not need a lawyer and knew he did not have to say anything. The State points out that Dr. Jordan testified that Ross had the ability to understand Miranda warnings and submits that it met its burden of demonstrating by a preponderance of the evidence that Ross’s confession was voluntary. The State further argues that Ross confirmed his confession when he took the stand and testified on his own behalf.

From our review of the record, we conclude that the State met its burden of demonstrating by a preponderance of the evidence that Ross’s confession was freely and voluntarily given and that Ross knowingly and intelligently waived his right to remain silent and his right to counsel. Wilson v. State, 304 So.2d 119 (Fla.1974).

Mental weakness alone will not automatically render a confession involuntary and inadmissible. Rather, this is only a factor to be considered in determining the voluntariness of a confession. In Brown v. State, 245 So.2d 68 (Fla.1971), we stated:

It is well settled that a person is not necessarily incompetent as a witness because he is mentally weak, and a confession is not rendered inadmissible by a low emotional and mental stability on the part of the accused if he is nevertheless capable of understanding the meaning and effect of his confession.

245 So.2d at 72. Furthermore, this Court has recognized that youthful age, although a factor to be considered in determining the voluntariness of a statement, will not render inadmissible a confession which is shown to have been made voluntarily. State v. Francois, 197 So.2d 492 (Fla.1967).

Although Dr. Jordan determined that Ross was mildly retarded, he testified that if Ross were advised that he had the right to remain silent he would have the intellectual comprehension to understand that he had a right not to reveal any information regarding the alleged crime. Dr. Jordan also testified that if Ross were advised of his right to counsel he was able to comprehend that an attorney meant somebody to help him with the difficulty he was in. Jordan expressed the opinion that Ross would be capable of understanding his Miranda rights if they were merely read to him. He stated that, while intellectually limited, Ross evidenced an adequate grasp of basic facts and ways to deal with daily life and could distinguish between appropriate and inappropriate social behavior.

The trial court expressly determined that Ross’s statement was freely and voluntarily given, and this finding is supported by the testimony presented at the suppression hearing. Any contrary inferences which might be drawn from the evidence have been resolved by the trial court in favor of the State, and we will not substitute our judgment for that of the trial court.

We note that Ross confirmed his confession when he took the stand. He testified that he stomped the victim in the head several times and demonstrated to the jury how he had stomped her.

Ross also contends that the trial court, during the course of jury instructions, made improper comments expressing a belief in Ross’s guilt and, during the sentencing phase, improperly commented on the evidence. No objection to any of these allegedly improper comments was made by defense counsel.

In the absence of a contemporaneous objection, we will not reverse a conviction because an improper comment is made unless the comment is so prejudicial as to amount to “fundamental error.” Cf. Clark v. State, 363 So.2d 331 (Fla.1978). The trial court’s comments, alleged by Ross to be improper, do not constitute fundamental error. To the contrary, when viewed in the entire context in which the comments were made, these comments neither prejudiced Ross nor deprived him of a fair trial. Cf. Provence v. State, 337 So.2d 783 (Fla.1976).

Ross next argues that the trial court abused its discretion in not granting his request for appointment of a psychiatrist or physician to further evaluate his mental condition, in addition to the psychologist, Dr. Jordan, who had already been appointed to examine Ross and who had determined him competent to stand trial. He acknowledges that Florida decisions have held that it is not an abuse of discretion for the trial court to refuse to order further psychiatric examinations after the accused has been determined to be competent. See Cooper v. State, 336 So.2d 1133 (Fla.1976); Brown v. State, supra; and Olsen v. State, 338 So.2d 225 (Fla. 3d DCA 1976). He asserts, however, that these decisions are different because in the present case only one expert, a psychologist, was appointed to examine him, while in the cases cited two experts, one of whom was a psychiatrist, had conducted the initial mental examinations. He concedes that a psychologist is competent to testify as to a person’s mental condition, and he does not question Dr. Jordan’s qualifications. He contends, however, that further examination of his mental condition, to determine whether he might have an organic or neurological impairment which could not be detected by Dr. Jordan, was required under the circumstances.

The State replies that Ross did not present any evidence which demonstrated a need for further mental examination, that the psychologist who examined Ross was qualified to testify as to his mental condition, and that the trial court did not abuse its discretion.

Florida Rule of Criminal Procedure 3.210 provides that the court may appoint up to three disinterested, qualified experts to examine a defendant and to testify as to his mental condition. The court held a hearing on Ross’s motion for further inquisition into his sanity at which Dr. Jordan unequivocally stated that Ross was capable of assisting with his legal defense as well as understanding the nature of his crime. Dr. Jordan did say that there may be organic causes for Ross’s low intellectual capacity, but he further stated that no additional tests were necessary. When asked the question of whether a determination that Ross had organic brain damage would alter his opinion that Ross was capable of assisting counsel and that Ross knew right from wrong, Dr. Jordan unhesitatingly responded in the negative.

The Louisiana decision of State v. Bennett, 345 So.2d 1129 (La.1977), relied on by Ross as authority for his argument on this point, is distinguishable in that in Bennett the court found from the examining physicians’ own admissions that their conclusions were uncertain without further clinical evaluation of the defendant. In the present case, Dr. Jordan was not uncertain of his results and did not feel that any further testing was necessary in order to make a determination that Ross knew right from wrong and was able to assist his counsel in his defense. We conclude that the trial court did not abuse its discretion when it denied Ross’s motion for further psychiatric or neurological examination.

Ross also claims that the trial court erred in permitting the prosecutor, at trial, on cross-examination, to ask Dr. Jordan whether Ross knew right from wrong since the issue of his sanity had not been raised on direct examination. The State answers, and we agree, that this question was within the scope of direct examination since the testimony elicited by this question explained the psychologist’s direct testimony and clarified to the jury that when the witness testified that Ross’s mental IQ was less than average, this did not mean that his intellect was so weak that he did not know right from wrong. As we said in Coco v. State, 62 So.2d 892, 895 (Fla.1953), quoting with approval the following passage from 58 Am.Jur., Witnesses § 632, at 352 (1948):

[W]hen the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts which constitute a unity, or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief by the witness on cross-examination.

See also Coxwell v. State, 361 So.2d 148 (Fla.1978).

In addition to reviewing the record in light of the alleged errors asserted by Ross, which we find to be without merit, we have also, pursuant to Fla.App. Rule 6.16, reviewed the evidence to determine whether the interests of justice require a new trial, and we conclude that a new trial is not required. Accordingly, we affirm the convictions.

We now consider Ross’s challenge to the imposition of the death penalty. The trial court delineated the aggravating circumstances to be that the murder occurred during the perpetration of robbery, that it was committed to avoid lawful arrest, that it was committed for pecuniary gain, and that it was especially heinous, atrocious, and cruel. The trial court found the following mitigating circumstances: Ross’s age and his limited intellectual capacity.

Ross attacks his sentence upon several grounds. We find no merit to his contentions that the trial court erred in finding that the homicide was committed to avoid lawful arrest and that the trial court erred in not finding as a mitigating circumstance no significant history of prior criminal activity.

We do find, however, that the trial court erred in finding as two separate aggravating circumstances that the murder was committed during a robbery and that the murder was committed for pecuniary gain. See Provence v. State, 337 So.2d 783 (Fla.1976). This factor alone would not necessarily have required reversal of the death sentence. Hargrave v. State, 366 So.2d 1 (Fla.1978).

It appears, however, that the trial court gave undue weight to the jury’s recommendation of death and did not make an independent judgment of whether or not the death penalty should be imposed. This error requires that the sentence be vacated and that the cause be remanded to the trial court for reconsideration of the sentence. Citing this Court’s decisions in Tedder v. State, 322 So.2d 908 (Fla.1975), and Thompson v. State, 328 So.2d 1 (Fla.1976), which held that the trial court should give great weight and serious consideration to a jury’s recommendation of life, the trial court reasoned that it was bound by the jury’s recommendation of death. As appears from its “Findings of Aggravating and Mitigating Circumstances” the trial court felt compelled to impose the death penalty in this case because the jury had recommended death to be the appropriate penalty. It expressly stated, “[T]his Court finds no compelling reason to override the recommendation of the jury. Therefore, the advisory sentence of the jury should be followed.” Ross correctly points out that the third step in Florida’s statutory scheme requires the reasoned judgment of the trial judge to be interposed between the emotions of the jurors and a death sentence. Section 921.141(3), Florida Statutes (1975), provides:

(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.—Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

We interpreted this section in State v. Dixon, 283 So.2d 1 (Fla.1973), and said:

The third step added to the process of prosecution for capital crimes is that the trial judge actually determines the sentence to be imposed—guided by, but not bound by, the findings of the jury. To a layman, no capital crime might appear to be less than heinous, but a trial judge with experience in the facts of criminality possesses the requisite knowledge to balance the facts of the case against the standard criminal activity which can only be developed by involvement with the trials of numerous defendants. Thus the inflamed emotions of jurors can no longer sentence a man to die; the sentence is viewed in the light of judicial experience.

283 So.2d at 8.

Although this Court in Tedder v. State, supra, and Thompson v. State, supra, stated that the jury recommendation under our trifurcated death penalty statute should be given great weight and serious consideration, this does not mean that if the jury recommends the death penalty, the trial court must impose the death penalty. The trial court must still exercise its reasoned judgment in deciding whether the death penalty should be imposed. The standard for our review of death sentences where the jury has recommended life was enunciated in Tedder v. State, supra, as follows:

In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.

322 So.2d at 910. In LeDuc v. State, 365 So.2d 149 (Fla.1978), this Court considered the standard of review of a death sentence where the jury recommends death and stated:

The primary standard for our review of death sentences is that the recommended sentence of a jury should not be disturbed if all relevant data was considered, unless there appear strong reasons to believe that reasonable persons could not agree with the recommendation. On the record placed before the jury in this case, a recommended sentence of death was certainly reasonable. Indeed, the only data on which a life recommendation could have been made would have had to be grounded on the nonevidentiary recommendation of the prosecutor and the emotional plea of defense counsel.

Id. at 151. Since it appears that the trial court did not make an independent judgment whether the death sentence should be imposed, we remand to the trial court to reconsider its sentence in light of this opinion.

Accordingly, we affirm the convictions. The case is remanded, however, for the sole purpose of allowing the trial court to reconsider the imposition of the sentence of death in accordance with section 921.141 and consistent with this decision and with Provence v. State, supra, which prohibits the trial court from considering as two separate aggravating circumstances that the murder was committed during a robbery and that the murder was committed for pecuniary gain.

It is so ordered.

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

ADKINS, J., concurs in the conviction and would uphold the sentence of death. The judge exercised reasoned judgment in imposing a death sentence.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion to the extent that it affirms the appellant’s convictions of first-degree murder and robbery. However, I dissent from that portion of the majority opinion which remands the case to the trial court for reconsideration of sentence, because I believe that on the record before us the law requires that we direct the Imposition of a sentence of life imprisonment without eligibility for parole for twenty-five years.

As the majority opinion correctly points out, the trial court erred in considering the fact that the murder was committed in connection with robbery and that it was committed for pecuniary gain as two separate aggravating circumstances. Provence v. State, 337 So.2d 783 (Fla.1976). Furthermore, the evidence did not warrant a finding that the murder was committed to escape arrest or detection by eliminating the victim as a witness. “Proof of the requisite intent to avoid arrest and detection must be very strong” where a witness other than law enforcement personnel is murdered. Riley v. State, 366 So.2d 19 (Fla.1978). In this case there is some doubt as to the motivation for the killing.

The appellant was sixteen years of age and mentally retarded at the time of the crime. His prior criminal activity consists of petty offenses. Under the standards of our capital felony sentencing law, the mitigating factors outweigh the aggravating factors. Death is not an appropriate penalty. The sentence of death should be vacated and a sentence of life imprisonment without eligibility for parole for twenty-five years should be imposed.

      . Although not challenging the constitutionality of section 921.141, Florida Statutes (1975), Florida’s Death Penalty Statute, in his brief, Ross has filed notice of supplemental authority citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), wherein the Supreme Court of the United States held that Ohio’s death penalty statute, restricting the sentencing judge’s consideration to the statutory list of mitigating factors, violates the eighth and fourteenth amendments to the United States Constitution. In Songer v. State, 365 So.2d 696 (Fla.1978), this Court addressed the question of whether Florida’s death penalty statute is unconstitutional in light of Lockett. We concluded that, unlike the Ohio statute found invalid in Lockett, Florida’s death penalty statute does not violate the eighth and fourteenth amendments to the United States Constitution since it does not limit the trial judge to consideration of only the statutorily enumerated mitigating circumstances.


author: NESBITT, Judge.

text:
    Marsha L. TAPLIN, Appellant, v. Jack B. TAPLIN, Appellee.
    No. 79-2318.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Rehearing Denied Sept. 3, 1980.
    Cypen & Nevins and Stephen H. Cypen, Miami Beach, for appellant.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Appellant-wife brings this interlocutory appeal challenging a postjudgment order concerning attorneys’ fees on the grounds that: (1) the amount of fees awarded was inadequate; and (2) counsel fees were improperly assessed against her portion of an escrow fund rather than against her husband.

The marriage between the parties had been previously dissolved and all property rights settled by written stipulation. One clause thereof, which is in dispute in the present controversy, provides:

The Husband agrees to pay the Wife’s attorneys, Cypen & Nevins, a reasonable fee for services rendered in their representation of the Wife. Each party presently has an interest in the sum of $6,429.40 currently being held in escrow by the Wife’s attorneys. Said amount shall be paid to the Wife’s attorneys toward their fees and costs. The Wife’s attorneys believe that the Husband’s share is an insufficient amount to be paid by the Husband and they may apply to the Circuit Court for additional fees from the Husband. The Husband, in no way, agrees to be responsible for such additional fees unless so ordered by the Court.

The wife’s counsel applied the sum of $6,429.40 toward their fee and applied to the court for additional fees. At the hearing, the presentation of expert testimony was waived and wife’s counsel testified that a minimum of 125 to 150 hours had been spent in counseling and representing the wife over a three-year period and argued to the court that a $15,000 fee was reasonable. The husband’s counsel successfully argued before the trial court that the amount of attorneys’ fees had been settled by the above contractual provision. The trial court then entered an order determining the wife’s counsel fees to be $6,429.40.

In the wife’s first point on appeal, she contends the total amount of the fee awarded was inadequate. We hold that it was within the sound discretion of the trial court to determine the amount of attorneys’ fees, Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976), and, absent an abuse of that discretion, an appellate court will not substitute its judgment for that of the trial court in making such an award, Goldberg v. Goldberg, 327 So.2d 828 (Fla. 3d DCA 1976).

Secondly, the wife contends that the trial court erred in failing to assess the attorneys’ fees against the husband. Initially, the funds escrowed with the wife’s counsel were in the approximate sum of $15,000. This amount originated from the proceeds of the sale of jointly held assets. During the parties’ separation and negotiations that followed, the husband made withdrawals, with the wife’s consent, from his portion of the escrow fund. At the time the order appealed from was entered, the husband’s interest in the escrow account was in the sum of $1,476.70 and the wife’s remaining interest was $4,952.70. The wife contends that by the trial court’s order it has, in effect, required the husband to pay $1,476.70 rather than the entire amount of the fee. In the order appealed from, the trial court made no finding or ruling upon this issue and consequently it will not be addressed by this court. Chipola Nurseries, Inc. v. Div. of Admin. Dept. of Transp., 335 So.2d 617 (Fla. 1st DCA 1976); Security Mutual Casualty Company v. Bleemer, 327 So.2d 885 (Fla. 3d DCA 1976).

Accordingly, the order determining the amount of attorneys’ fees is affirmed without prejudice for the wife to seek an order in the trial court charging the fees against the husband.

Affirmed.


author: PER CURIAM.

text:
    Daniel EPSTEIN, Appellant, v. Marion T. EPSTEIN, Appellee.
    Nos. 79-1394, 79-1484 and 79-1609.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 8, 1980.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, William Sullivan, Coral Gables, for appellant.
    Rash, Katzen & Kay and H. Stephen Rash, South Miami, for appellee.

      Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment of marriage dissolution under review is affirmed and the post-judgment order taxing costs and attorneys fees, also under review, is reversed upon a holding that: (a) the award of the subject installments due the husband through the sale of the Dairy Queen franchise and the award of the husband’s one-half interest in the marital home, although admittedly on the high side, are nonetheless supported by substantial competent evidence in this record as sustainable lump sum alimony awards to the wife which we have no authority to set aside; Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); (b) the award of attorneys fees and costs is not supported by substantial competent evidence as on this record the wife is in a significantly superior financial position, when compared to the husband, to pay her attorneys fees and costs given the highly favorable financial result she has achieved by the final judgment herein. Hill v. Hill, 376 So.2d 472 (Fla. 4th DCA 1979); Bucci v. Bucci, 350 So.2d 786 (Fla. 3d DCA 1977).

Affirmed in part; reversed in part.


author: DANIEL S. PEARSON, Judge.

text:
    Luis Facundo BACARDI, Appellant, v. Adriana C. BACARDI, Appellee.
    No. 80-733.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 4, 1980.

      Roger D. Haagenson, Ft. Lauderdale, for appellant.
    Nard S. Helman, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In August 1979, the parties entered into a Property Settlement Agreement which provided, in pertinent part:

“It is further agreed and understood between the parties that the Wife shall become responsible for any and all mortgage payments, taxes, insurance payments, assessments, or debts of any kind on said residence at the time of the dissolution of marriage. In the event the Wife fails to make payment of same, then the Husband shall make payment in her behalf and deduct said sum from the alimony he may be required to pay under this Agreement. That this payment by the Husband is voluntary on his part and shall be at his option. Husband shall continue to be obligated to pay all the obligations of the parties, until the time of a dissolution of marriage.” (emphasis supplied).

Shortly thereafter, Adriana filed a petition for dissolution and, in December, a motion asking the court to find Luis in contempt for failing to live up to his agreement to “pay all the obligations of the parties, until the time of a dissolution of marriage.” Adriana contended that this clause of the agreement required the husband to pay all expenses of her support and maintenance to the time of dissolution; Luis contended that his agreement to pay “obligations of the parties” meant that he was to pay only joint undertakings or liabilities, such as mortgage payments, taxes and the like. The trial court ordered Luis to pay all of Adriana’s living expenses incurred from the time of the agreement to date, the sum of 126,45o.

As is often the case, both parties argue that the contested language of the agreement is clear — Adriana says it clearly entitles her to all of her expenses and Luis says it clearly does not. In support of her position Adriana points out that the agreement contains no other interim support or alimony provision and that the intention of the parties that support and maintenance be covered by this clause is evident. Luis responds that if the parties meant expenses, that is what they would have said; and that the entire paragraph referring, as it does, to “mortgage payments, taxes, insurance payments, assessments, or debts of any kind on said residence” obviously illustrates what is meant by “obligations.”

We are unable to agree with the trial court that the agreement between the parties clearly and unambiguously entitled the wife to recover all of her expenses from the time of the agreement to the time of the dissolution of the marriage. It may be that that is what the parties intended, but we cannot discern that intent from the language used. See Sosnowitz v. Sosnowitz, 342 So.2d 524 (Fla. 3d DCA 1977). Nor does a reading of the entire agreement clarify what the parties meant when they said that the husband shall pay all the obligations of the parties. See Davis v. Davis, 301 So.2d 154 (Fla. 3d DCA 1974).

Provisions of a property settlement agreement are interpreted by courts like any other contract. Underwood v. Underwood, 64 So.2d 281 (Fla. 1953); Sosnowitz v. Sosnowitz, supra; Davis v. Davis, supra. When a contract is ambiguous and the parties suggest different interpretations, the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties. Griffin Builders Supply, Inc. v. Jones, 384 So.2d 265 (Fla. 2d DCA 1980); MacKenzie v. Avis Rent-A-Car Systems, 369 So.2d 647 (Fla. 3d DCA 1979). No such evidence was heard by the general master or trial court in the present case. Instead, the order appealed from was necessarily based upon a conclusion that the language of the agreement required the husband to pay all expenses of the wife to the time of dissolution. While that conclusion may prove to be correct, it cannot arise from the ambiguous language of the agreement. Accordingly, we reverse and remand with instructions to the trial court to conduct an evidentiary hearing to determine what the parties intended when they agreed that the “husband shall continue to be obligated to pay all the obligations of the parties until the time of the dissolution of the marriage.”

The wife’s motion for attorneys’ fees for services rendered on this appeal is hereby remanded to the lower court for determination and assessment at the conclusion of the further proceedings required by this opinion. See Fla.R.App.P. 9.400(b); Anderson v. Anderson, 180 So.2d 360, 363 (Fla. 3d DCA 1965).

Reversed and remanded.

      . The court simply approved a report of a general master to whom it had referred the matter. The general master recommended that each and every expense incurred by the wife from September 24, 1979, through February 26, 1980, be paid by the husband. He categorized the expenses as being related to the “upkeep and maintenance of the house and the Petitioner [Adriana].”

      . The husband could make an equally plausible argument that having agreed, in a separate clause, to pay $2,000 per month alimony after dissolution, he did not undertake to give Adriana carte blanche to incur expenses beyond that in the interim.

      . The proposition that where a contract is ambiguously worded, the construction placed on the language by the trial court is presumed correct, Clark v. Clark, 79 So.2d 426 (Fla. 1955), is applicable only where the trial court has received and evaluated evidence bearing upon the intent of the parties. The trial court’s conclusion in the present case that the agreement is unambiguous is a legal conclusion and is not entitled to a presumption of correctness. In re Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978). See also Adams v. Adams, 385 So.2d 688 (Fla. 3d DCA 1980).

      . In light of our disposition of the case, we do not reach the parties’ second issue concerning whether contempt proceedings are applicable to the husband’s failure to pay these moneys to the wife. If the clause in dispute is later shown to be one providing for alimony, as distinguished from a contractual obligation to convey property, then contempt could lie to enforce it. Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979); Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968).


author: SHARP, Judge. UPCHURCH, Judge,

text:
    BOWL AMERICA FLORIDA, INC., a Florida Corporation, and Proprietors’ Insurance Company, a Foreign Insurance Corporation, Petitioners, v. Richard L. SCHMIDT, and Nancy Schmidt, his wife, Respondents.
    No. 79-439.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.

      Jeff B. Clark, Orlando, and Marcia K. Lippincott, Sanford, for petitioners.
    Patrick A. Raley, Winter Park, for respondents.
   SHARP, Judge.

The defendants, Bowl America Florida, Inc., and Proprietors’ Insurance Company, filed a Petition for common law certiorari with this Court to review an order entered by the trial court denying the defendants’ Motion to Dismiss for Failure to Prosecute. We deny the Petition because this Court does not have jurisdiction to review this kind of interlocutory order under the new Appellate Rules.

Rule 9.030(b)(2), Florida Rules of Appellate Procedure allows review of “non-final orders of lower tribunals other than as prescribed by Rule 9.130 . . .”. But the types of cases reviewable are limited. There must clearly be a “departure from the essential requirements of [the] law.” Thibadeau v. Santini Bros., 315 So.2d 550, 551 (Fla. 4th DCA 1975). The petitioners urge that the expense of proceeding to trial and raising the correctness of the trial court’s order on appeal justifies this Court’s acceptance of certiorari jurisdiction. These grounds are not sufficient to justify certio-rari review. Whiteside v. Johnson, 351 So.2d 759 (Fla. 2d DCA 1977); Neale v. Redins Corp., 320 So.2d 840 (Fla. 4th DCA 1975).

Under Rule 4.2 of the now superseded Florida Rules of Appellate Procedure, numerous cases reached the District Courts of Appeal concerning the refusal of lower courts to dismiss cases for failure to prosecute. See Greyhound Corporation v. Estevez, 360 So.2d 41 (Fla. 3d DCA. 1978); Lake Crescent Dev. Corp. v. Flowers, 355 So.2d 867 (Fla. 1st DCA 1978). In 1968 Rule 4.2 of the Florida Appellate Rules was amended to expressly include among the appeala-ble interlocutory orders “orders granting or denying dismissal for lack of prosecution.” In Re Florida Appellate Rules, 211 So.2d 198, 199, (Fla.1968).

Rule 9.130 of the new Florida Rules of Appellate Procedure states that interlocutory appeals shall be limited to those categories specifically listed in the Rule. Significantly, orders of the kind sought to be reviewed in this case were dropped. This significant omission would be rendered meaningless if we were to accept routinely the review of such orders by certiorari. We decline jurisdiction and deny the petition. See Suez Company v. Hodgins, 137 So.2d 231 (Fla. 3d DCA 1962).

Petition for writ of common law certiora-ri is DENIED.

DAUKSCH, C. J., concurs.

UPCHURCH, J., dissenting with opinion.

UPCHURCH, Judge,

dissents.

Appellate courts have discouraged litigants in their attempts to secure this writ of common law certiorari and have narrowly applied the test from Dairyland Insurance Co. v. McKenzie, 251 So.2d 887 (Fla. 1st DCA 1971), to determine whether the writ should be granted.

Cases state that a liberal application of that test would increase judicial labor or be used by contentious litigants to delay resolution of cases. I agree that it is best to limit parties to post trial remedies if adequate. See Santini Brothers, Inc., v. Gro ver, 338 So.2d 79 (Fla. 4th DCA 1976); Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Lynch v. City of Deerfield Beach, 369 So.2d 1042 (Fla. 4th DCA 1979); Esler v. Gabinet, 369 So.2d 93 (Fla. 4th DCA 1979).

I concur with the majority opinion that the amendment of Florida Rule of Appellate Procedure, Rule 4.2, now superseded by Rule 9.130, limits interlocutory appeals to those categories specifically listed in the rule as amended. However, the elimination of review of orders denying motions to dismiss for lack of prosecution from that rule is significant only to the extent that such orders are no longer reviewable by interlocutory appeal. Such orders may now only be reviewed, at the discretion of this court, by writ of common law certiorari. Previously, such orders apparently could be reviewed either by interlocutory appeal or certiorari. Eastern Elevator, Inc. v. Page, 250 So.2d 326 (Fla. 4th DCA 1971). There was never an intent by amendment of the rule to abolish the writ.

In the case before us, the applicable facts were:

On July 28, 1978, the court furnished respondents with a notice to attorneys and parties that petitioner’s attorney was acting as campaign manager for the trial judge, and directed any who were concerned about possible bias to file affidavits to that effect and the judge would recuse himself.
On August 28, 1978, respondents filed an affidavit.
On September 6, 1978, the last undisputed affirmative action took place, a motion for compulsory physical examination.
On September 25, 1978, an order reassigning another judge was entered.
On September 10, 1979, the motion to dismiss was filed.

Therefore, if the September 6, 1978 motion is the last action, more than one year elapsed. If September 25, 1978 controls, the year had eighteen days to run.

A single question was presented to the trial court: Was an order assigning another judge “affirmative action”?

No cases have been cited which directly answer this question. A notice of substitution of counsel and an order thereon is not sufficient to prevent dismissal. Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1950), St. Anne Airways Corp. v. Larontonda, 308 So.2d 129 (Fla. 3d DCA 1975), and Industrial Trucks of Florida, Inc. v. Gonzales, 351 So.2d 744 (Fla. 3d DCA 1977). In the case before us, the reassignment of the judge was instituted by the court rather than either party; therefore, the reasons are even more compelling than in those cases cited to hold that the entry of the order did not constitute progress.

If we are truly concerned with judicial labor and inconvenience, as well as delay and expense to litigants in our reasons for limiting the writ to the most urgent circumstances, we should grant certiorari in this instance.

In my opinion, the trial court’s failure to dismiss was a departure from the essential requirements of law. To say petitioner has an adequate remedy because he can raise the same point on appeal after a trial is small consolation to the trial court, which has no shortage of cases to try, to the parties who must pay for this exercise, or to the taxpayer who underwrites much of the cost of litigation, or to this court which will assuredly have to consider the same question at a future date unless petitioner prevails at trial. My conclusion would be different if there was a possibility the question could be resolved by the trial, or if answering the question at this time would be of insignificant benefit to all concerned. The question can only be answered at the appellate level and will only wait to destroy, not only any recovery by Plaintiff, but the labor and expense of all involved.

To determine whether we should grant certiorari, two questions should be answered:

1. Was there a departure from the essential requirements of law?
2. Would the dismissal, if granted, be dispositive of the suit?

If these questions can both be answered affirmatively, the writ should be granted. In the case before us, those questions can be answered affirmatively, and, I would grant the writ.

Therefore, I respectfully dissent.

      . 1977 Advisory Committee and Court’s Commentary: This rule replaces former Rule 4.2 and substantially alters current practice. This rule applies to review of all non-final orders, except those entered in criminal cases, and those specifically governed by Rules 9.100 and 9.110.
      The Advisory Committee was aware that the common law writ of certiorari is available at any time and did not intend to abolish that writ. However, since that writ provides a remedy only where the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm, it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief. See Taylor v. Board of Public Instruction of Duval County, 131 So.2d 504 (Fla. 1st DCA 1961).


author: HERSEY, Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Keith ASHLEY and Hyacinth Ashley, his wife, Paulette Ashley, a minor by and through her parents and next friends, Appellees.
    No. 79-2045.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied Sept. 12, 1980.
    Jerrold K. Phillips of Brooks & Callahan, Tallahassee, for appellant.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg and Stephen G. Fischer, Miami, for appellees.
   HERSEY, Judge.

This is an appeal from a non-final order denying a motion to dismiss for improper venue. We reverse on the authority of State of Florida Department of Transportation v. Bromante, 365 So.2d 388 (Fla.4th DCA 1978). The common law rule that venue in civil actions brought against the state or one of its agencies properly lies in the county where the state or agency maintains its principal headquarters has consistently been followed in Florida. Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). An exception in the case of contract actions was legislatively created. § 377.19 Fla.Stat. (1979). No such exception exists for causes of action sounding in tort. We have previously expressed our views as to the wisdom of this rule and the policy reasons that support it. Game & Fresh Water Fish Commission v. Carlile, 341 So.2d 1015 (Fla.4th DCA 1977).

Accordingly, we reverse the order appealed from and remand this cause with directions to transfer the case to Leon County as it pertains to appellant or, at the option of the plaintiffs, to dismiss appellant from the cause without prejudice to plaintiffs’ right to bring an independent action against appellant in Leon County.

REVERSED AND REMANDED WITH DIRECTIONS.

DOWNEY and ANSTEAD, JJ., concur.


text:
    The TRAVELERS INDEMNITY COMPANY, Appellant, v. Vincent F. NORTON, Appellee.
    No. 79-1995.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied Sept. 11, 1980.
    Alfred D. Bieley, Miami, for appellant.
    Underwood, Gillis, Karcher, Reinert & Valle and Anthony Reinert, Miami, for ap-pellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977) and United Services Automobile Association v. Holland, 283 So.2d 381 (Fla. 1st DCA 1973).


author: BASKIN, Judge.

text:
    BAYSHORE COOPERATIVE, INC., Appellant, v. Martha L. RUSSCOL, Appellee.
    No. 79-2220.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied Sept. 10, 1980.
    Bretan & Marks and Howard R. Hirsch, Miami, for appellant.

      Simon, Schindler & Tripp, Miami, and Judith A. Bass, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   BASKIN, Judge.

We affirm the decision of the trial court granting a final summary judgment and mandatory injunction enjoining appellant, Bayshore Cooperative, Inc., from assessing carrying charges for common expenses in a manner other than the proportionate assessment provided for in the cooperative documents, particularly the occupancy agreement.

The Occupancy Agreement provides for monthly charges “equal to one-twelfth of the Member’s proportionate share of the sum required by the Corporation, as estimated by its Board of Directors” and provides that “[n]o Member shall be charged with more than his proportionate shares. .” The cooperative documents may not be changed without amendment to the bylaws. See Pepe v. Whispering Sands Condominium Association, Inc., 351 So.2d 755 (Fla.2d DCA 1977) and Thiess v. Island House Association, Inc., 311 So.2d 142 (Fla.2d DCA 1975). Thus, the directors may change the total amount required to be paid, but they may not increase the size of the proportionate share to make all shares equal. See § 719.107(2), Fla.Stat. (1977).

Affirmed.

      . Section 719.107(2), Florida Statutes (1977), provides:
      Funds for the payment of common expenses shall be collected by assessments against unit owners in the proportions or percentages of sharing common expenses provided in the cooperative documents.


text:
    Murray SILVERN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2243.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied Sept. 4, 1980.
    Ainslee R. Ferdie, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   BASKIN, Judge.

We approve the denial by the trial court of defendant’s motion to dismiss and motion to suppress upon a finding that the officer’s observation of a gun holster protruding . from beneath the driver’s seat of the car, in plain view, led to the inadvertent discovery of the firearm upon which the charge was based. State v. Ashby, 245 So.2d 225 (Fla. 1971); State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979). We find no merit in defendant’s other points on appeal.

The judgment and sentence are affirmed.