author: BOWEN, Judge.

text:
    Lana NORTHINGTON v. STATE
    6 Div. 488.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.

      Joel L. Sogol, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain of McLain & Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of her five month old daughter. Sentence was life imprisonment.

The indictment contained two counts. Count 2 charged that the defendant intentionally killed Dana Northington by suffocation. The jury found the defendant guilty of Count 1 which charged that the defendant •

“did recklessly engage in conduct which manifested extreme indifference to human life and created grave risk of death to the person of Dana Northington, and the said conduct did hereby cause the death of Dana Northington, by withholding food and medical attention from the said Dana Northington . . . . ”

Under Alabama Code 1975, Section 13A— 6-2(a)(2) (Amended 1977), a person commits the crime of murder if:

“Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.”

Essentially, this section is a restatement of Alabama law which defined murder in the first degree to include every homicide “perpetrated by any act greatly dangerous to the lives of others and evincing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life.” Alabama Code 1975, Section 13-1-70. The commentary to Section 13A-6 — 2 makes this clear.

“Section 13A — 6-2(a)(2) also retains as murder the recklessly engaging in conduct which creates a grave risk of death under circumstances ‘manifesting extreme indifference to human life’, which is different from a positive intent to kill, and which essentially restates existing law. Section 13 — 1—70.”

The new statute, 13A — 6—2(a)(2), removes the requirement that more than one person be endangered by the reckless conduct of the accused. Compare the phrase “any act greatly dangerous to the lives of others” with “conduct which creates a grave risk of death to a person other than himself.” (Emphasis added) However, the statute still requires conduct which manifests an extreme indifference to human life and not to a particular person only.

At the close of the State’s evidence defense counsel requested the trial judge to exclude Count 1 of the indictment from the consideration of the jury. The defendant argued that he could not be convicted of a count charging “universal malice” where the criminal acts of the accused were directed solely at the deceased and where the method of death alleged in the indictment (starvation) required a specific intent.

Reckless homicide manifesting extreme indifference to human life (13A — 6—2(a)(2)) must be distinguished from purposeful or knowing murder (13A-6-2(a)(1)). See American Law Institute, Model Penal Code and Commentaries, Part II, Section 210.2 (1980). Under whatever name, the doctrine of universal malice, depraved heart murder, or reckless homicide manifesting extreme indifference to human life is intended to embrace those cases where a person has no deliberate intent to kill or injure any particular individual. Napier v. State, 357 So.2d 1001, 1007 (Ala.Cr.App.1977), reversed on other grounds, 357 So.2d 1011 (Ala.1978). “The element of ‘extreme indifference to human life’, by definition, does not address itself to the life of the victim, but to human life generally.” People By And Through Russel v. District Court For Fourth Judicial District, 185 Colo. 78, 521 P.2d 1254, 1256 (1974).

This issue was thoroughly explained in State v. Berge, 25 Wash.App. 433, 607 P.2d 1247 (1980).

“The predecessor to RCW 9A.32.030(l)(b) was RCW 9.48.030(2), which made the killing of a human being ‘(b)y an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without a premeditated design to effect the death of any individual’ murder in the first degree. Where an act causing a person’s death was specifically aimed at and inflicted upon a particular person and none other, the perpetrator could not properly be convicted of first degree murder under this section of RCW 9.48.030. State v. Mitchell, 29 Wash.2d 468, 188 P.2d 88 (1947).
“The court in Mitchell relied heavily upon the case of Darry v. People, 10 N.Y. 120 (1854), which contained three opinions arriving at the same result and a dissent. While Darry emphasizes the language ‘dangerous to others’, the second opinion of the New York court is also extensively and favorably quoted in Mitchell and focuses upon the language ‘evincing a depraved mind, regardless of human life’ which is similar to ‘manifesting an extreme indifference to human life’ contained in RCW 9A.32.030(1)(b). That opinion states in relevant part:
“ ‘The act must evince a depraved mind, regardless of human life. These words are exactly descriptive of general malice, and cannot be fairly applied to any affection of the mind having for its object a particular individual. They define general recklessness, and are not pertinent to describe cruelty to an individual. The act by which the death is effected must evince a disregard to human life. Now, a brutal assault upon an individual may evince animosity and hate towards that person, and a cruel and revengeful disposition, but it could not properly be said to be evidence of a recklessness and disregard of human life generally.’
“(Some italics ours) State v. Mitchell, supra; 29 Wash.2d at 477, 188 P.2d at 93 (quoting Darry v. People, supra).
“Although the new statute, RCW 9A.32.-030(l)(b), removes the requirement that more than one person be endangered, see Comment, WPIC 26.05, 11 Wash.Prac., its purpose remains the same. As we read the homicide statutes, the legislature intended that one who kills with the intent to cause the death of a particular individual be charged with murder in the first degree, pursuant to RCW 9A.32.030(l)(a), or murder in the second degree, as defined in the instruction given by the trial court. As other statutory provisions cover acts directed at a particular individual or individuals, we shall assume that the legislature intended RCW 9A.32.-030(l)(b) to provide for those situations indicating a recklessness and extreme indifference to human life generally. The record reveals that Berge’s violent attack was specifically directed at a particular victim. Therefore, he should have been charged and tried pursuant to RCW 9A.32.030(l)(a), not RCW 9A.32.030(l)(b), and consequently a new trial must be granted. State v. Mitchell, supra.”

607 P.2d at 1249-50.

The evidence in this case, even when viewed in the light most favorable to the prosecution, reveals that the defendant’s acts and omissions were specifically directed at a particular victim and no other.

The State presented no evidence that the defendant engaged in conduct “under circumstances manifesting extreme indifference to human life” for, while the defendant’s conduct did indeed evidence an extreme indifference to the life of her child, there was nothing to show that the conduct displayed an extreme indifference to human life generally. Although the defendant’s conduct created a grave risk of death to another and thereby caused the death of that person, the acts of the defendant were aimed at the particular victim and no other. Not only did the defendant’s conduct create a grave risk of death to only her daughter and no other, but the defendant’s actions (or inactions) were directed specifically against the young infant. F. Wharton, The Law of Homicide (3rd ed. 1907) at Section 129. This evidence does not support a conviction of murder as charged under Section 13A-6-2(a)(2). The function of this section is to embrace those homicides caused by such acts as driving an automobile in a grossly wanton manner, shooting a firearm into a crowd or moving train, and throwing a timber from a roof onto a crowded street. Napier, 357 So.2d at 1007.

In order that a person who withholds food or medical attention from another to whom a legal duty is owed may be found guilty of murder it is necessary to show that the conduct of the accused was willful or done with malicious intent. Albright v. State, 50 Ala.App. 480, 280 So.2d 186, cert. denied, 291 Ala. 771, 280 So.2d 191 (1973). See also Anno. 61 A.L.R.3d 1207 (1975); Anno. 100 A.L.R.2d 483 (1965). In Bliley v. State, 42 Ala.App. 261, 262, 160 So.2d 507 (1964), the court held:

“To prove murder by starvation, under the established cases, the prosecution must prove to the required degree that with malice aforethought the person charged (1) is under a duty to feed, (2) has control of the food, and (3) denies food to the deceased.”

The jury’s verdict found the defendant guilty as charged in Count 1 of the indictment. Our review of the record convinces us that the evidence was insufficient to sustain the conviction of reckless homicide manifesting extreme indifference to human life. A long and diligent search has revealed no ease where an accused was either indicted or convicted for murder by the denial of food or medical attention under an indictment involving universal malice or reckless homicide manifesting indifference to human life.

Because of the revolting and heartsicken-ing details of this case, this Court is extremely reluctant to reverse the conviction of the defendant. Yet, because our system is one of law and not of men, we have no other choice. The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte State of Alabama. (In re Lana NORTHINGTON v. STATE of Alabama).
    81-210.
    Supreme Court of Alabama.
    May 7, 1982.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain of McLain & Hampton, Sp. Asst. Attys. Gen., for petitioner.
    Joel L. Sogol, Tuscaloosa, for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, EMBRY and ADAMS, JJ., concur.

MADDOX and BEATTY, JJ., dissent.

SHORES, J., not sitting.


text:
    Wardell RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 49666.
    Supreme Court of Florida.
    April 1, 1982.
    Rehearing Denied June 7, 1982.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb and Elliot H. Scherker, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr. and David P. Gauldin, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Warded Riley appeals his sentence of death which was imposed after remand by this Court for reconsideration of imposition of the death sentence. Finding no reversible error, we affirm the sentence of death.

For the purpose of robbing his place of employment, Riley and another entered the business establishment of Riley’s employers and shot three persons, killing two of them. The third survived and testified to Riley’s participation in the crimes. At the sentencing hearing, neither the State nor the defense presented any additional evidence than what had already been presented to the jury and received in evidence. Rather, the prosecutor argued the existence of certain aggravating factors while the defense argued the existence of mitigating factors and the barbarism of imposing the death sentence. No objection was made by defense counsel to the State’s argument. The jury recommended that Riley receive a sentence of death for one of the murders and a sentence of life for the other murder. Finding six aggravating factors and one mitigating, the trial court sentenced Riley in accordance with the jury’s recommendations. It additionally imposed a fifteen-year sentence for felonious assault of the third person who was shot but who did not die.

On appeal, we affirmed the convictions as well as Riley’s life and fifteen-year sentences, but we vacated the death sentence and remanded for resentencing by the trial judge because he had erroneously considered two nonstatutory aggravating circumstances (no showing of remorse and the length of premeditation), because he had erroneously determined that the murder was heinous and cruel, and because he had improperly doubled up the aggravating circumstances of for pecuniary gain and during the course of a robbery. We held that the latter circumstances should be treated as one aggravating circumstance and that the court properly found as an aggravating circumstance that the murder was committed to eliminate a witness and thereby avoid lawful arrest. Riley v. State, 366 So.2d 19 (Fla.1978).

Upon remand and after an additional sentencing hearing, the trial judge again imposed the sentence of death. He found as aggravating circumstances that (1) the murder was committed while Riley was engaged in the commission of a robbery and was committed for pecuniary gain and (2) the murder was committed to avoid or prevent a lawful arrest. In mitigation, he found that Riley had no significant history of prior criminal activity.

Riley challenges his death sentence on three bases. First, he argues that the jury’s recommendation which is entitled to great weight was tainted by its consideration of improper aggravating circumstances. His argument is premised on the fact that the prosecutor in the sentencing phase of the trial urged the jury to find several delineated aggravating circumstances, some of which were nonstatutory. No objection was made by defense counsel to these remarks by the prosecuting attorney during the first sentencing hearing, however. Furthermore, Riley failed to make this argument to this Court in his first appeal. When we remanded for reconsideration of the sentence by the trial judge, Riley again failed to make this argument in his petition for rehearing. During the resentencing procedure, Riley never argued to the trial court that the jury’s recommendation may have been tainted. Riley cannot now raise this point on appeal.

Moreover, even if this issue was properly before us, we would find that Riley has failed to demonstrate that the jury’s recommendation was tainted. There is no question that the jury was properly instructed at the sentencing hearing, and just because the jury was urged by the prosecutor to find certain aggravating circumstances does not establish that the jury’s recommendation was tainted. The record does not reveal that the jury based its recommendation on improper considerations.

We reject Riley’s contention that the trial judge failed to consider certain evidence introduced by Riley during the resentencing proceeding to demonstrate nonstatutory mitigating factors. The trial judge expressly stated that he considered all the testimony and evidence presented. Furthermore, there is no indication from the record that he limited his consideration of mitigating factors to only those which are statutorily enumerated. Because he failed to find the mitigating factors which Riley urged does not mean that he did not consider the evidence. It lies within his province to decide whether a particular mitigating circumstance in sentencing is proven and the weight to be given it. Smith v. State, 407 So.2d 894 (Fla.1981); Lucas v. State, 376 So.2d 1149 (Fla.1979). Here, we find no error in his decision.

Finally, we find no merit to Riley’s argument that to impose a sentence of death upon him would violate the eighth and fourteenth amendments of the federal constitution. This argument is premised for the most part on his preceding arguments and on the additional ground that a crucial factor in mitigation here is the possibility of his innocence.

Having reviewed the entire record, we find that the trial judge properly imposed the sentence of death, and we affirm.

It is so ordered.

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

BOYD, J., dissents: I would reduce penalty to life imprisonment.


author: ALDERMAN, Justice.

text:
    Bobby Marion FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 60809.
    Supreme Court of Florida.
    April 15, 1982.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., Miami, for appel-lee.
   ALDERMAN, Justice.

Bobby Marion Francis appeals his conviction for first-degree murder and his sentence of death'. Finding that he was denied due process of law by the selection of the jury outside his presence and that this resulted in prejudicial error, we reverse his conviction and remand for a new trial.

Francis was convicted of first-degree murder in 1976. He appealed his conviction and sentence of death to this Court, and we relinquished jurisdiction to the trial court by order entered June 20, 1978, so that Francis could file a Florida Rule of Criminal Procedure 3.850 motion on the ground of ineffective assistance of trial counsel. The trial court agreed with Francis’ claim and, on June 11, 1979, granted his motion and ordered a new trial. After denial of his motion for change of venue, the case was retried in Monroe County in August 1979, and Francis was again convicted of first-degree murder and sentenced to death.

Francis was convicted of murdering Titus Walters whose body was found in a bathtub in a Key West home. Walters’ hands were bound, and his mouth was taped. He had been shot twice in the head and had been fatally shot in the chest. Powder burns on his body indicated that he had been shot at close range. Several eyewitnesses present during the incident testified that Francis had fired the shots after the victim had pleaded for his life.

Francis argues that his conviction should be reversed and that he should be given a new trial because the selection of the jury during his absence denied him his constitutional right to be present at all stages of the trial.

The voir dire examination of prospective jurors began on August 14 and continued through August 15, 1979. Francis was present during the examination of prospective jurors, but at the commencement of the afternoon session on August 15, defense counsel asked permission for Francis to go to the restroom. Without consulting Francis, defense counsel then, when asked by the court whether he waived Francis’ presence for the purposes of jury selection, answered that he did. No peremptory challenges had yet been exercised by either side at this time. The jury selection then proceeded in the courtroom outside Francis’ presence. After the names of three jurors had been read, the judge, counsel for both sides, and the court reporter retired to the jury room to continue the selection process. This was done at the request of counsel because they were crowded around the bench. By this time Francis had returned to the courtroom but was left sitting in the courtroom when the judge and counsel went into the jury room. After the jury was selected, the judge, counsel for both sides, and the court reporter returned to the courtroom, and the jury was sworn. No inquiry of Francis was made by the court as to whether he ratified the jury which was selected in his absence.

During the hearing on his motion for new trial before the trial court, Francis objected to this selection of the jury outside his presence. At 'this hearing, he testified that he wanted to be present during the jury selection process but that he was told by his counsel that he would not be permitted to accompany the judge, counsel, and court reporter into the jury room. He further stated that he had not consented to his counsel’s waiver of his right to be present.

Francis asserts that the exercise of peremptory challenges is an essential part of a trial and was particularly significant here where many of the potential jurors had expressed knowledge of his case and where a number of these prospective jurors actually knew that he had been convicted and sentenced to death previously for the same charge that they might be called upon to consider. He contends that he was not voluntarily absent from the selection process and that because this was a capital case, his counsel’s waiver was not binding on him since he neither consented to this waiver beforehand nor acquiesced to it afterward. In fact, he maintains, a defendant cannot waive his right to be present in a capital case.

Francis has the constitutional right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). See also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Florida Rule of Criminal Procedure 3.180(a)(4) recognizes the challenging of jurors as one of the essential stages of a criminal trial where a defendant’s presence is mandated. This rule expressly provides:

(a) Presence of Defendant. In all prosecutions for crime the defendant shall be present:
(4) At the beginning of the trial during the examination, challenging, impanell-ing, and swearing of the jury;

This rule contains a proviso though which relates to a defendant’s voluntarily absenting himself from the courtroom. Subsection (b) of this rule states:

(b) Defendant Absenting Himself. If the defendant is present at the beginning of the trial and shall thereafter, during the progress of said trial or before the verdict of the jury shall have been returned into court, voluntarily absent himself from the presence of the court without leave of court, or is removed from the presence of the court because of his disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of said case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.

We have held that in a noncapital case where a defendant voluntarily absents himself during his trial, his absence will not be permitted to interrupt the proceedings. This is so because the presence requirement is for his protection, and therefore he can waive it if he chooses voluntarily to absent himself. State v. Melendez, 244 So.2d 137 (Fla.1971): In Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), the Supreme Court of the United States said that the rule in noncapital cases is that if after trial has begun in his presence, defendant voluntarily absents himself this does not nullify what has been done nor does it prevent the completion of the trial. In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Supreme Court held that a defendant had lost his right to be present in the courtroom by engaging in conduct so noisy, disorderly, and disruptive that it made it exceedingly difficult or wholly impossible to carry on a trial. Underlying this conclusion is the premise that a defendant cannot take advantage of his own misconduct to vitiate a trial. Henry v. State, 94 Fla. 783, 114 So. 523 (1927).

Because of the factual circumstances underlying Francis’ claim, we find it unnecessary in this opinion to distinguish between capital and noncapital cases, and we need not answer the questions of whether a trial may proceed in a capital case where defendant voluntarily absents himself from the courtroom or whether a defendant may otherwise waive his right to be present in a capital case.

Francis was absent during a crucial stage of his trial and his absence was not voluntary. He had been excused by the court momentarily to go to the restroom. After he had returned to the courtroom, his counsel, the prosecutor, the judge, and the court reporter retired to the jury room to exercise Francis’ and the State’s peremptory challenges. His counsel had told him he could not go with them into the jury room. His counsel had not obtained his express consent to challenge peremptorily the jury in his absence.

In State v. Melendez, which involved a trial for a noncapital offense, we addressed counsel’s waiver of defendant’s presence during the jury selection process and said that where a defendant has counsel, constructive knowledge of the proceedings may be imputed to defendant but that this doctrine only applied to those cases in which, upon defendant’s reappearance at his trial, he acquiesces or ratifies the action taken by his counsel during his absence. In Melendez, we explained that upon Melendez’s reappearance, the trial judge carefully questioned him as to his knowledge and understanding of his right to be present, and he freely ratified the actions of his counsel in selecting the jury.

Francis was not questioned as to his understanding of his right to be present during his counsel’s exercise of his peremptory challenges. The record does not affirmatively demonstrate that Francis knowingly waived this right or that he acquiesced in his counsel’s actions after counsel and judge returned to the courtroom upon selecting a jury. His silence, when his counsel and others retired to the jury room or when they returned after the selection process, did not constitute a waiver of his right. The State has failed to show that Francis made a knowing and intelligent waiver of his right to be present. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Since we find that the court erred in proceeding with the jury selection process in Francis’ absence, we also consider whether this error is harmless. We are not satisfied beyond a reasonable doubt that this error in the particular factual context of this case is harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967). The exercise of peremptory challenges has been held to be essential to the fairness of a trial by jury and has been described as one of the most important rights secured to a defendant. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). It is an arbitrary and capricious right which must be exercised freely to accomplish its purpose. It permits rejection for real or imagined partiality and is often exercised on the basis of sudden impressions and unaccountable prejudices based only on the bare looks and gestures of another or upon a juror’s habits and associations. It is sometimes exercised on grounds normally thought irrelevant to legal proceedings or official action, such as the race, religion, nationality, occupation or affiliations of people summoned for jury duty. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In the present case, we are unable to assess the extent of prejudice, if any, Francis sustained by not being present to consult with his counsel during the time his peremptory challenges were exercised. Accordingly, we conclude that his involuntary absence without waiver by consent or subsequent ratification was reversible error and that Francis is entitled to a new trial.

Francis also challenges his conviction on the basis that the trial court erred in denying his motion tó suppress evidence taken from his home and his motion to suppress certain statements made by him. We find no merit to these contentions and find that the evidence taken from his home and his statements are properly admissible evidence.

Francis further contends that the trial court erred in not granting his motion for change of venue. He alleges that prejudicial pretrial publicity pervaded the community in which he was tried and that widespread publicity of his previous conviction and sentence of death in that community for this same murder made it impossible for him to select a fair and impartial jury. Since we reverse and remand for a new trial based upon Francis’ absence during a portion of the jury selection process, it is not necessary that we resolve this change of venue issue. We are concerned, however, about the jurors’ knowledge through pretrial publicity of Francis’ prior conviction and sentence of death. The danger that members of any new jury will know about his two prior convictions and sentences of death for this same murder will be even greater if this case is again retried in Monroe County. The trial court should consider this fact if, upon remand, Francis renews his motion for change of venue.

We also do not reach the merits of Francis’ challenges to his sentence of death.

Accordingly, we reverse his conviction and remand for a new trial.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.

      . The trial court described the procedure that was utilized to select the jury as follows:
      [W]e’ll start with the first named individual. I’ll ask the State if the State accepts. You’ll either accept or reject. If you accept, then the defense will have an opportunity to accept or reject. We continue to go down the line giving the State the opportunity first, then the defense until 1 get to twelve, at which time I’ll ask the State if you accept the panel. At that time you may backstrike any that you wish to up to the total limit of peremptory challenges. And then we will continue on until we get twelve again until they are finally accepted by the State, at which time I’ll turn over to the defense and they may accept or backstrike as they choose until you both used up either your ten or we have our panel of twelve; okay? There will be one strike per side per alternate; I anticipate two. One strike per alternate. You got two alternates; you got two strikes.
      We neither approve nor disapprove this procedure but merely note that it is not a procedure extensively utilized in this State.

      . We note, however, that in our early case of Lowman v. State, 80 Fla. 18, 85 So. 166 (1920), this Court addressed defendants’ claims for new trial on the basis that at different times they were voluntarily absent from the courtroom during their capital trials for a few minutes. Acknowledging the defendants’ constitutional right and statutory right to be present, this Court said that defendants’ momentary absences from the courtroom were voluntary, and there is nothing to indicate that any harm could have resulted to defendants by their voluntary absences. But see Lovett v. State, 29 Fla. 356, 11 So. 172 (1892).
      We note also the following statement in Mulvey v. State, 41 So.2d 156, 158 (Fla.1949):
      It is settled that a statute such as is here involved is for the benefit of the defendant and may be waived by him, especially where the offense charged is less than capital.... We express no opinion as to whether its provisions may be waived in a capital case, for we have no such question before us.


author: PER CURIAM. BOYD, Justice,

text:
    Doris T. WOODS and Government Employees Insurance Company, Petitioners, v. Donald WITHROW, Darnell Withrow, and Cavalier Insurance Company, Respondents.
    No. 59664.
    Supreme Court of Florida.
    April 29, 1982.

      Ronald L. Harrop of Gurney, Gurney & Handley, Orlando, for petitioners.
    A. Craig Cameron of Cameron, Marriott, Walsh & Hodges, Orlando, for respondents.
   PER CURIAM.

This cause is before the Court to review the case of Withrow v. Woods, 386 So.2d 607 (Fla. 5th DCA 1980). The district court certified that its decision was in direct conflict with 3—M Electric Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

Vicki Woods, a minor, was a passenger in an automobile being operated by her mother Doris Woods when the car collided with another vehicle being operated by Darnell Withrow. Vicki Woods was injured and sued Darnell Withrow for damages based on his negligence. Also named as defendants were Donald Withrow, the owner of the automobile Darnell Withrow was driving, and Cavalier Insurance Company. The negligence action was instituted by Doris Woods on behalf of her daughter. The defendants filed a counterclaim against Doris Woods and her insurer, alleging that Mrs. Woods negligently contributed to the collision that caused her daughter’s injuries, and sought contribution.

During the course of the litigation, the Withrows’ insurer offered the maximum amount of their liability coverage in settlement of Vicki’s claim. Vicki accepted the offer of settlement and executed a release in favor of the defendants. The release did not mention her mother or anyone in privity with her. Doris Woods and her insurer then moved for summary judgment on the defendants’ claim for contribution, relying on subsection 768.31(2)(d), Florida Statutes (1979).

Contribution among tortfeasors is governed by section 768.31, Florida Statutes (1979), which codifies Florida’s version of the Uniform Contribution Among Tort-feasors Act. Subsection (2) states the conditions governing the right of contribution among tortfeasors. Subsection 768.31(2)(d) provides:

A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.

The trial judge agreed that,'since the settlement and release had not extinguished the liability of Mrs. Woods as a joint tortfea-sor, the defendants were not entitled to contribution and entered judgment denying contribution.

On appeal the district court reversed the summary judgment. It held that there was a right to contribution against a parent as a joint tortfeasor, and that in light of the family immunity’s bar on direct actions between child and parent the requirements of subsection 768.31(2)(d) had been satisfied.

In her appeal to this Court, Mrs. Woods raises two issues for our consideration. The first is whether there is a right of contribution against a joint tortfeasor who is the parent of the injured minor. The second is whether a tortfeasor who fails to comply with the provisions of subsection 768-31(2)(d) may obtain contribution against the parent of the injured minor.

We answered the first question in Joseph v. Quest, 414 So.2d 1063 (Fla.1982). In Quest we allowed contribution, but only to the extent of the parent’s available liability insurance coverage. If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then contribution will not be allowed.

The second issue deals with the district court’s decision reversing the ruling of the trial court that contribution would not be allowed because the settlement and release did not meet the statutory requirement of subsection 768.31(2)(d). In order to properly answer this we must examine the language of that subsection in the context of the entire uniform act and the policies it was intended to achieve.

Subsection (2) of the act establishes the “right to contribution.” Paragraph (a) provides that it is not necessary that the action against all or any of the jointly or severally liable tortfeasors proceed to judgment. Paragraph (b) indicates that the factor giving rise to the right to contribution is payment in excess of a tortfeasor’s “pro rata share of the common liability.”

Paragraph (d), the provision at issue, provides that a tortfeasor who settles with the plaintiff is only entitled to contribution if the settlement also releases the tortfeasor from whom contribution is sought. In the case of two joint tortfeasors, then, the right of a settling tortfeasor to contribution from the other would depend on whether the injured plaintiff has accepted the settlement as a complete satisfaction and has given a complete release.

The policy of the Act is to encourage rather than discourage settlements. The tortfeasor who settles removes himself entirely from the case so far as contribution is concerned if he is able and chooses to buy his peace for less than the entire liability. If he discharges the entire obligation it is only fair to give him contribution from those whose liability he has discharged. Since the settlement must be reasonable it follows that the question of total liability to the injured party may be litigated in the contribution action.

Unif. Contribution Among. Tortfeasors Act § 1(d), Commissioners’ Comment (1955 Revision), 12 U.L.A. 65 (Master Ed.1975).

Subsection (3) contains provisions on how the “pro rata shares of tortfeasors in the entire liability” are determined:

(a) Their relative degrees of fault shall be the basis for allocation of liability.
(b) If equity requires, the collective liability of some as a group shall constitute a single share.
(c) Principles of equity applicable to contribution generally shall apply.

Paragraph (a) varies from the uniform act. In the uniform act, paragraph (a) reads: “their relative degrees of fault shall not be considered.” Under the uniform act, “pro-rata shares” means the entire liability is allocated evenly among the tortfeasors, except where equitable principles call for some variance from that formula by virtue of paragraph (b) or (c). When Florida first adopted the uniform act, it adopted the official version of paragraph (a). Ch. 75-108, § 1, Laws of Fla.

In Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), the Supreme Court of Florida decided to abolish the doctrine against contribution among joint tortfeasors, since the rule seemed inappropriate in the light of the Court’s abolition of the defense of contributory negligence in favor of comparative negligence in Hoffman v. Jones, 280 So.2d 431 (Fla.1973). The majority opinion in Lincenberg indicates that the Court was inclined to authorize judicially a right to contribution among tortfeasors based on allocation of degrees of fault, without abrogating the right of a nonnegligent plaintiff to secure judgment for the full amount of his damages from any one or more of the jointly and severally liable tortfeasors. During the pendency of the certiorari proceedings in Lincenberg, however, the legislature enacted the uniform act in its original, official form, and the Court held that the legislative prohibition on considering the relative degrees of fault of the tort-feasors controlled. The following year, the legislature amended paragraph (a) to provide for consideration of relative degrees of fault. Ch. 76-186, § 1, Laws of Fla. Therefore, Florida now follows a consistent policy of apportioning liability among all the contributing tortfeasors, except where paragraph (b) or (c) requires some equitable adjustment. See Unif. Contribution Among Tortfeasors Act, § 2; Commissioner’s Comment (1955 Revision), 12 U.L.A. 87 — 88 (Master Ed.1975); Note, Contribution Act Construed — Should Joint and Several Liability Have Been Considered First!, 30 U. Miami L.Rev. 747 (1976).

Subsection 768.31(4) provides that the right of contribution may be enforced either by separate action or in the same action as the initial claim when two or more defendants are adjudged liable. Subsection (4) also places time limitations on the enforcement of the right to contribution. Paragraphs (4)(e) and (f) provide:

(e) The recovery of a judgment for an injury or wrongful death against one tortfeasor does not of itself discharge the other tortfeasors from liability for the injury or wrongful death unless the judgment is satisfied. The satisfaction of the judgment does not impair any right of contribution.
(f) The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.

Subsection (5) of the act provides:

(5) RELEASE OR COVENANT NOT TO SUE. — When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and,
(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.

We are especially concerned with the relationship between subsection (5) and paragraph (2)(d). Under subsection (5)(a), when Vicki Woods accepted the settlement offer of the defendants and released them, such release would not have discharged her mother’s liability, if her mother had any liability in tort to Vicki. See Ard v. Ard, 414 So.2d 1066 (Fla.1982). Under subsection 5(b) the defendants, by offering a settlement and obtaining a release given in good faith, assured that they would be completely discharged from all liability not only to Vicki but also for contribution to any other tortfeasor. Although paragraph (5)(b) permits a plaintiff “to release one tortfeasor from his fair share of liability” and is subject to criticism for susceptibility to favoritism or collusion, this potential problem is outweighed by the benefits.

It seems more important not to discourage settlements than to make an attempt of doubtful effectiveness to prevent discrimination by plaintiffs, or collusion in the suit. Accordingly the subsection provides that the release in good faith discharges the tortfeasor outright from liability for contribution. This is consistent with Section 1(d) above, [(2)(d) in Florida’s version] which provides that the settling tortfeasor has himself no right of contribution against another unless he has assumed the full responsibility to the claimant.

Unif. Contribution Among Tortfeasors Act, § 4(b), Commissioners’ Comment (1955 Revision), 12 U.L.A. 99-100 (Master Ed. 1975). Thus the requirement in subsection (2)(d) of the Florida statute that a settling tort-feasor, to have a right of contribution, must have “extinguiished” the liability of the other tortfeasor can be seen in the light of subsection (5) to express the intent that a settling tortfeasor, to get contribution, must have extinguished the “full responsibility to the claimant.” A tortfeasor who settles without extinguishing the entire liability, and whose payment later turns out to be less than his fair share, is not subject to actions for contributions to others. § 768.-31(5)(b), Fla.Stat. (1979). A tortfeasor who settles without extinguishing the liability of another tortfeasor, and whose payment later turns out to be more than his fair share, has no right of contribution against the other. Id.; § 768.31(2)(d), Fla.Stat. (1979). In buying his peace, such a settling tort-feasor merely misjudged the value of the claim. Best Sanitary Disposal Co. v. Little Food Town, Inc., 339 So.2d 222 (Fla. 2d DCA 1976); Comment, The Case For Comparative Contribution in Florida, 30 U. Miami L.Rev. 713, 737 (1976).

In the present case the defendants bought their peace for $10,000, the amount of liability insurance coverage. Under Joseph v. Quest, 414 So.2d 1063 (Fla.1982), if Mrs. Woods were without liability insurance coverage, then there would be no right to contribution. On the other hand, if Mrs. Woods were protected by liability insurance, since the release granted respondents did not relieve her liability, she would not be liable for contribution under subsection 768.31(2)(d).

We therefore hold that there is no right of contribution against Mrs. Woods in this case. The trial court was correct in so holding. The decision of the district court is quashed, and this case is remanded with directions that the judgment of the circuit court be affirmed.

It is so ordered.

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

ALDERMAN, J., concurs in result only.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

In Shor v. Paoli, 353 So.2d 825 (Fla.1977), this Court held that under the Uniform Contribution Among Tortfeasors Act, section 768.31, Florida Statutes (1979), a tort-feasor could seek contribution from another person whose negligence had contributed to the plaintiff’s injuries, even though the other person was immune from a direct action by virtue of a family relationship (marriage) with the plaintiff. Shor v. Paoli should either be applied to this case, limited to its narrow facts, or overruled. But the doctrine of family immunity as it applies to the parent-child relationship should not be abrogated in whole or in part.

I disagree with the decision to abrogate parental immunity to the extent of the parent’s liability insurance. I believe such partial abrogation will disrupt family unity and harmony because, even if the parent’s liability to the child is covered by insurance, an intra-family lawsuit in our adversary system divides the family members.

If we are to adhere to Shor and apply the Contribution Act to the parent’s contributory negligence, then there can be no recovery of contribution in this case, because the settlement between the tortfeasor and the child did not “extinguish” the liability of the other contributorily negligent party, i.e., the mother. § 768.31(2)(d), Fla.Stat. (1979). With this much of the majority opinion I agree.

      . After we accepted jurisdiction and scheduled oral argument in the present case, the District Court of Appeal for the Third District overruled 3-M Electric Corp. Quest v. Joseph, 392 So.2d 256, 258 (Fla. 3d DCA 1981) (on rehearing en banc). See Fla.R.App.P. 9.331(c). Rehearing was ordered on the court’s own motion, the court indicating that the earlier “panel opinion,” 392 So.2d at 258, in Quest was in conflict with 3-M Electric Corp.

        Quest was certified to this Court and has been published as Joseph v. Quest, No. 60,237, - So.2d-(Fla. April 29, 1982).

      . § 768.31(2), Fla.Stat. (1979), provides:
      (a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
      (b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.
      (c) There is no right of contribution in favor of any tortfeasor who has intentionally (willfully or wantonly) caused or contributed to the injury or wrongful death.
      (d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.
      (e) A liability insurer who by payment has discharged in full or in part the liability of a tortfeasor and has thereby discharged in full its obligation as insurer is subrogated to the tortfeasor’s right of contribution to the extent of the amount it has paid in excess of the tortfeasor’s pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.
      (f) This act does not impair any right of indemnity under existing law. When one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.
      (g) This act shall not apply to breaches of trust or of other fiduciary obligation.

      . We fully retain the doctrine of joint and several liability. Four states have abolished or limited the doctrine of joint and several liability through their comparative negligence statutes. See Kan.Stat.Ann. § 60-258A(d) (1976); Nev. Rev.Stat. § 41.141, subd. 3 (1979); N.H.Rev. Stat.Ann. § 507:7-a (Supp.1979); Vt.Stat.Ann., tit. 12, § 1036 (1973).


author: PER CURIAM. ADKINS, J., OVERTON, J., BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Barry R. SHAPIRO, Respondent.
    No. 60248.
    Supreme Court of Florida.
    April 29, 1982.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Jacquelyn Plasner Needelman, Bar Counsel, and Frank C. Walker, II, Chairman, Seventeenth Judicial Circuit Grievance Committee 17 “C”, Fort Lauderdale, for The Florida Bar, complainant.
    Barry R. Shapiro, in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar, report of the referee, and petition for review by The Florida Bar.

The complaint against Shapiro was in six counts. At the hearing before the referee, Shapiro submitted a written guilty plea as to Counts I, III, IV, V, and VI. Count I charged that Shapiro communicated an offer of settlement directly to an adverse party knowing that this party was represented by counsel. Count II charged that Shapiro was under the care of a psychiatrist, that he has reached the point where, during periods of stress, he becomes unable to control his impulses, and that his mental instability makes him incapable of practicing law. Count III charged that he placed trust funds belonging to clients in his general account. Count IV charged that he engaged in law practice under the trade name “Peoples Legal Clinic, Inc.” Count V charged that he paid a salary to an employee of Peoples Legal Clinic, Inc., the amount of which was contingent on how much money Peoples Legal Clinic, Inc. received in fees. Count VI charged that he elected a nonlawyer as secretary of Peoples Legal Clinic, Inc.

The referee recommends that Shapiro be found guilty of each count, and specifically that he be found guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1 — 102(A)(1) and (6), 2— 102(B), 3-102, 3-103(A), 5-107(C), 7-104(A)(1), and 9-102(B)(l), (2), and (3) and guilty of violating Florida Bar Integration Rule, article XI, Rule 11.02(3)(a) and (4). Subsection (4) sets out trust accounting procedures to be followed by attorneys. Although the referee recommends that Shapiro be found guilty of Count II, he explained relative to this count that, as evidenced by a recent psychiatrist’s report, Shapiro’s mental state has substantially improved since the events which gave rise to these proceedings.

(A) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

Having considered the mitigating factors that, at the time of Shapiro’s misconduct, he was separated from his wife and children by an unwanted divorce, that his father and brother had passed away, that he was seeing a psychiatrist for the emotional stress caused by these experiences, and that he is now significantly improved, the referee recommends that Shapiro be publicly reprimanded, and that he be placed on supervised probation for three years. One of the conditions of probation recommended is that Shapiro file with the clerk of the Supreme Court, with a copy to The Florida Bar, quarterly reports stating the names of clients and the nature of the work completed, containing a statement that all legal services have been diligently performed, and containing a statement by Charles Lip-con, a member of The Florida Bar in whose law office Shapiro is employed, that he has maintained adequate supervision of Shapiro, has reviewed his performance, and has found it satisfactory. The other recommended conditions are that he pass the ethics portion of The Florida Bar Examination and that he submit to a psychiatric examination every six months and receive whatever psychiatric care and treatment are recommended.

The Florida Bar filed a petition for review objecting to the proposed disciplinary measures as inadequate. In view of the seriousness and cumulative nature of the misconduct involved, the Bar requests that Shapiro be suspended from the practice of law for three months and one day and thereafter until he demonstrates rehabilitation, that he be required to pass the ethics portion of The Florida Bar Examination as a condition precedent to reinstatement to the practice of law, and that upon reinstatement he be placed on supervised probation for a three-year period with the condition that he submit to psychiatric evaluation every six months.

After Shapiro had filed his answer brief arguing that the referee’s recommendations were appropriate under the peculiar circumstances of this case and after the Bar had filed its reply brief again emphasizing the cumulative nature of Shapiro’s misconduct, the Bar filed a motion to relinquish jurisdiction back to the referee. Filed with this motion was the affidavit of Charles Lipcon, alleging that Shapiro is no longer working with him and that he is now unable to supervise Shapiro due to the severity of Shapiro’s personal problems. The Bar stated that it believed the referee’s disciplinary recommendation was based in part on Mr. Lipcon’s testimony that he was willing to supervise Shapiro. On January 11,1982, we entered an order permitting Shapiro two weeks in which to respond. Shapiro did not respond to this motion, however. We deny this motion to relinquish jurisdiction since we agree with The Florida Bar that more than a public reprimand and probation are warranted, even considering the mitigating factors found by the referee.

Accordingly, because of the nature of Shapiro’s misconduct, we hereby suspend him from The Florida Bar for three months and one day and thereafter until he shall prove rehabilitation. Prior to reinstatement, he must pass the ethics portion of The Florida Bar Examination. In the event Shapiro petitions for reinstatement, we will consider at that time whether he should be placed on supervised probation as a condition of reinstatement. Shapiro will have twenty days from the date of this order to take steps necessary to protect his clients. Execution shall issue against respondent for the cost of these proceedings in the amount of $1,388.87.

It is so ordered.

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

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

ADKINS, J.,

dissenting:

I would impose a public reprimand.

OVERTON, J.,

dissenting:

I would remand to the referee for a revised recommendation in view of changed circumstances.

BOYD, Justice,

concurring in part and dissenting in part.

I would adopt the referee’s report and the discipline recommended therein.

      . DR 1-102 provides:
      (A) A lawyer shall not:
      (1)Violate a Disciplinary Rule.

      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

      . DR 2 — 102(B) provides:
      (B) A lawyer shall not practice under a trade name or a name that is misleading as to the identity, responsibility or status of those practicing thereunder, or is otherwise false, fraudulent, misleading, or deceptive within the meaning of DR 2-101(B), or is contrary to law.. ..

      . DR 3-102 provides:
      (A) A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
      (1) An agreement by a lawyer with his firm, partner, or associate may provide for the payment of money, over a reasonable period of time after his death, to his estate or to one or more specified persons.
      (2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased
      lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.
      (3)A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

      . DR 3-103(A) provides:

      . DR 5-107(0) provides:
      (C)A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

      (2) A non-lawyer is a corporate director or officer thereof; or

      . DR 7-104(A)(l) provides:
      (A) During the course of his representation of a client a lawyer shall not:
      (1)Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

      . DR 9-102(B) provides:
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.

      .Article XI, Rule 11.02(3)(a) provides:
      (a) Standards. The standards of professional conduct to be observed by members of the Bar are not limited to the observance of rules and avoidance of prohibitive acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act contrary to honesty, justice, or good morals, whether the act is committed in the course of his relations as an attorney or otherwise, whether committed within or outside the State of Florida, and whether or not the act is a felony or misdemeanor, constitutes a cause for discipline.


text:
    Michael J. SCHNAEDELBACH, etc., et al., Petitioners, v. Alvin F. FRAZIER, et al., Respondents.
    No. 60457.
    Supreme Court of Florida.
    April 29, 1982.
    John N. Moore, III, of Neblett & Sauer, Key West, for petitioners.
    Bradford A. Thomas of Kimbrell, Ham-ann, Jennings, Womack, Carlson & Knis-kern, Miami, for respondents.
   PER CURIAM.

On the basis of Joseph v. Quest, 414 So.2d 1063, (Fla.1982), Frazier v. Schnaedelbach, 394 So.2d 562 (Fla. 3d DCA 1981), is quashed and remanded for proceedings consistent with that decision.

It is so ordered.

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

BOYD and ALDERMAN, JJ., dissent.


author: ADKINS, Justice.

text:
    FLORIDA POWER CORPORATION, Appellant, v. Joseph P. CRESSE, et al., Appellees.
    No. 60604.
    Supreme Court of Florida.
    April 29, 1982.

      Sylvia H. Walbolt and Donald E. Hemke of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and S. A. Brandimore and R. W. Neiser, St. Petersburg, for appellant.
    William S. Bilenky, Gen. Counsel, Pamela Johnson, Associate Gen. Counsel and Michael B. Twomey, Staff Counsel, Florida Public Service Commission, Tallahassee, for appellees.
    Jack Shreve, Public Counsel and J. Roger Howe, Associate Public Counsel, Tallahassee, for the citizens of the State of Florida.
   ADKINS, Justice.

We have for review an order of appellee, the Florida Public Service Commission (hereinafter the PSC), relating to rates of appellant Florida Power Corporation (hereinafter FPC), a utility providing electric service. We have jurisdiction. Art. V, § 3(b)(2), Fla.Const. (1980).

In February, 1980, FPC’s Crystal River No. 3 nuclear power plant (hereinafter CR3) was forced to shut down and as a result remained out of service for 167 days. Because of the outage, FPC had to switch to more expensive fossil fuel generation and incurred much higher fuel expenses than had been projected for that time period.

At a subsequent “true-up” hearing, where cost projections for a period are compared with the actual results thereof and adjustments are made to account for un-derrecovery or overrecovery by the utility, FPC petitioned for authority to recover $46.3 million which it contended was the underrecovery for the period in question. The PSC initially withheld approval of the recovery of $22.8 million of the amount requested pending hearings on the matter, but at the completion thereof allowed recovery of all but $3.5 million.

Recovery of the $3.5 million was denied because of the PSC’s finding that the shutdown of CR3 had been extended one week by FPC’s failure to have on hand a replacement decay heat pump. The PSC found that a replacement heat pump should have been kept in inventory by FPC and reasoned that the excess fuel costs attributable to the extra week should be borne by the utility rather than the public. This appeal followed.

In ruling that FPC must bear responsibility for any portion of the outage attributable to its failure to have on hand a replacement heat pump, the PSC noted that the utility had experienced problems with the troublesome pump on two prior occasions and had decided in early 1979 to order a spare pump for inventory. Because of an administrative error, however, FPC failed to order the spare pump and so had one neither on hand nor on order when the outage occurred. The PSC concluded that FPC’s prior troubles with the heat pump, its recognition of the necessity of having a spare pump on hand, as evidenced by the decision to order such, and the failure to procure a spare justified the withholding of the $3.5 million.

FPC argues that the facts do not support a finding of mismanagement and that it is entitled to the full amount requested. It notes the impracticality of maintaining a complete inventory of spare parts for a nuclear power plant and asserts that in light of both its own experience with the equipment and of national data bank information, the lack of a spare pump was not an unreasonable state of affairs. FPC also notes that the part not on hand, the pump casing, is a non-moving part with a very low probability of failure and that the utility did have spares for the moving parts of the pump. It is improper, FPC contends, to use hindsight and hold it responsible for the lack of a spare when, in the utility’s opinion, its actions were reasonable and correct at the time. We, however, do not agree that there is no evidence of mismanagement.

First, there is the prior trouble which FPC had experienced with the pump in question. On one occasion the pump casing was found to be “out of kilter” and was machined in an attempt to correct the problem. On another, the pump shaft failed, the utility did not have the necessary parts on hand to repair the unit, and as a result the outage caused thereby was extended by 15 days. The above incidents ought to have put FPC on notice that the heat pump was a likely source of trouble and that problems there could lead to extended outages if the necessary repair and replacement equipment was not kept on hand. The PSC’s finding of management imprudence cannot be characterized as “hindsight” in view of FPC’s experience with the heat pump prior to the incident with which we are concerned.

Also supporting the PSC’s finding is the evidence of the utility’s decision to order a replacement pump for inventory. FPC’s witness at the hearings before the PSC stated that the decision to order an entire spare heat pump was made after the shaft failure incident. That decision indicates recognition by management that a spare heat pump was a necessity for proper operation of the plant. FPC argues that the decision proves nothing of the sort, but instead simply shows the exercise of an abundance of care by management. Regardless of FPC’s interpretation, however, the PSC concluded that the utility’s management was guilty of imprudence in not having a replacement available during the outage. There was substantial and competent evidence for that conclusion and so we will not interfere with that aspect of the PSC’s decision. Surf Coast Tours, Inc. v. Florida Public Service Commission, 385 So.2d 1353 (Fla.1980); Florida Telephone Corp. v. Mayo, 350 So.2d 775 (Fla.1977).

As its second point on appeal, FPC asserts that the failure to have a replacement pump on hand did not delay CR3’s return to service. If the utility is correct on this point, then it makes no difference whether it was guilty of management imprudence in not having a spare.

FPC contends that the PSC improperly considered isolated segments of expert testimony in concluding that the lack of a spare extended the outage, and that consideration of the evidence as a whole demonstrates to the contrary.

The PSC, argues FPC, relies entirely upon an exchange in which a utility witness testified that the repair and testing of the heat pump appeared on the “critical path schedule” for 17 days and that the lack of a spare during that period resulted in increased fuel costs. According to FPC, that statement, taken out of context, does not accurately reflect the gist of that witness’ testimony. The utility contends that the testimony in question, in its entirety, indicates that the presence of an activity on the critical path schedule for a certain number of days does not necessarily mean that the absence thereof would have shortened the outage by that length of time, that certain modifications required by the Nuclear Regulatory Commission as a result of the Three Mile Island incident would have kept the plant closed until late in the outage period regardless of what other work was being done, and that time spent on other independent but necessary items not appearing on the critical path schedule would have delayed start-up of the plant even had a replacement pump been on hand.

FPC correctly notes that several passages in the transcript can be interpreted as indicating that lack of a spare heat pump did not extend the outage. There are, however, other parts of the transcript, cited by the PSC, which indicate that the necessity of obtaining a spare heat pump delayed start-up for seven days at an approximate cost of $500,000 per day. Without doubt, there exists conflict in the record on this issue.

Because the conflict is so clear, and because there is ample testimony in support of each of the positions espoused, we must defer to the PSC, in its role as fact finder, on this point. As noted in the PSC’s brief, it was responsible for resolving the conflict in the evidence and did so by finding more credible the testimony that heat pump problems extended the outage. Because the order is supported by competent and substantial evidence, Florida Telephone Corporation v. Mayo, it has a sufficient basis and we will not disturb that finding.

As its final point on appeal, FPC argues that the PSC, in refusing to permit recovery of the disputed amount, imposed upon it an improper burden of proof. According to the utility, legitimately incurred operating expenses such as fuel costs are presumed to be reasonable, and evidence that such operating costs were incurred satisfies the utility’s initial burden of production. At that point, it reasons, the PSC must establish by substantial, competent evidence that the amounts paid were imprudently or unnecessarily incurred. The PSC’s mistake, according to FPC, was that it required FPC to prove that the failure to have a pump was not imprudent and that it did not extend the outage rather than the PSC itself proving to the contrary. We do not agree. The language in PSC Order No. 9273, issued March 7, 1980, which adopted, among other things, the true-up mechanism here under consideration, provides or indicates several times that the burden of justifying fuel cost adjustments is on the utilities.

First, the order notes that at the time the PSC adopted the fuel adjustment clause, it “approved a stipulation of parties that required utilities to justify changes to the charges at public hearings held on a monthly basis.” Order No. 9273 at 1 (emphasis added). Recounting the initial staff testimony proposing the modification of the clause, the order notes that one witness “stressed the need for the true-up mechanism . . . and pointed out that the companies would be required to explain the reasonableness of their fuel purchases at the hearing during which projected amounts would be compared to actual results.” Order No. 9273 at p. 2 (emphasis added). In another section, it notes as follows:

We will continue ... to audit and evaluate the performance of the companies, and to approve for inclusion into the clause only prudently and necessarily incurred fuel expense. Accordingly, we will conduct in the second month following a projection period a public hearing for the purpose of ascertaining the differences between projected and actual costs. At that time, the reasonableness of the companies’ expenditures during the preceding projection period will also be examined.

Order No. 9273 at 7. Finally, we note that the presidents of FPC and the other utilities endorsed adoption of the true-up provision.

The requirement that utilities demonstrate the reasonableness of their fuel costs is not improper or unusual. “Burden of proof in a commission proceeding is always on a utility seeking a rate change, and upon other parties seeking to change established rates.” WELCH, CASES AND TEXT ON PUBLIC UTILITY REGULATION, 638 (Revised Edition 1968). FPC asserts that it provided proof of its fuel costs, that the same were incurred in the production of electric power for its customers, and that the reasonableness thereof was never questioned, and so that it was up to the PSC to show otherwise. That is not so. The data provided showed that FPC’s fuel costs were significantly higher due to an incident the responsibility for which was in dispute. It was up to the utility, under those conditions, to show that the excess costs incurred were reasonable and were not the fault of management. Simple production of cost records and documentation cannot satisfy the requirements imposed on a utility in a true-up proceeding. The PSC did not improperly place the burden on FPC and there was a sufficient basis for its finding regarding the excess costs.

Having reviewed each of appellant’s points on appeal and having found that none warrant reversal of the portions of the order objected to, Order No. 9950 is hereby affirmed.

It is so ordered.

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

BOYD, J., dissents.


author: DANAHY, Judge. HOBSON, Justice,

text:
    Mary Sue HUBBARD, Appellant, v. Gabriel CAZARES and Margaret Cazares, Appellees.
    No. 80-1199.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1981.
    Paul Antinori, Jr., Tampa, for appellant.
    Walt Logan, St. Petersburg, Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for ap-pellees.
   DANAHY, Judge.

Gabriel and Margaret Cazares brought this suit against Mary Sue Hubbard and The Church of Scientology of California, Inc. (the Church) for damages based on alleged malicious prosecution, abuse of process, and invasion of privacy. Hubbard, a resident of California, was served with process in that state pursuant to section 48.193(l)(b), Florida Statutes (1979), which asserts “long arm” jurisdiction over a nonresident who, personally or through an agent, commits a tortious act within this state. By a timely motion to quash service of process and to dismiss, Hubbard challenged the trial court’s personal jurisdiction over her under the Florida long arm statute. The trial judge denied the motion and Hubbard appeals. We affirm.

Subsequent to the filing of Hubbard’s motion to quash and to dismiss, she and the Church each requested a change of venue under section 47.101(l)(b), Florida Statutes (1979). The trial judge responded with an order which Hubbard and the Church appealed to this court in a separate proceeding. We reversed with directions that venue be transferred. Although the Cazareses did not raise the point in the trial court or before this court, it occurred to us that Hubbard’s motion for change of venue was inconsistent with her earlier challenge of the trial court’s jurisdiction of her person. Upon consideration of the rules of law which apply in such a situation, we hold that Hubbard’s action in requesting a change of venue constituted a waiver of her earlier filed objections to personal jurisdiction.

A defendant who timely asserts a challenge to the court’s jurisdiction over the person of the defendant is not prejudiced by participation in the trial of the suit and defending the matter thereafter on the merits. His challenge is preserved and he may obtain a review of the question of personal jurisdiction upon appeal should he suffer an adverse final judgment in the cause. State ex rel. Eli Lilly and Co. v. Shields, 83 So.2d 271 (Fla.1955). This court followed that rule in Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966), in holding that a corporate defendant did not waive its challenge to the personal jurisdiction of the court by joining with other defendants in a motion to dismiss a lis pendens and a motion to increase the bond posted by the plaintiff. A fortiori, while a general appearance in a cause prior to a challenge of personal jurisdiction waives the jurisdictional issue, a general appearance after a timely objection to personal jurisdiction does not. Compare Fulmer v. Northern Central Bank, 386 So.2d 856 (Fla. 2d DCA 1980), with White v. Nicholson, 386 So.2d 74 (Fla. 2d DCA 1980).

However, a timely objection to personal jurisdiction may nevertheless be waived. In jurisdictions which follow the rule that a defense on the merits is not a waiver, the courts have long held that a defendant who goes beyond matters of defense and seeks affirmative relief waives a previously asserted objection to the personal jurisdiction of the court. Receivers of Middlesex Banking Co. v. Realty Inv. Co., 104 Conn. 206, 132 A. 390 (1926); Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961). Thus a majority of federal courts have held that the filing of a permissive counterclaim is a request for affirmative relief which waives an objection to personal jurisdiction notwithstanding that the objection is timely made. Hook & Ackerman, Inc. v. Hirsh, 98 F.Supp. 477 (D.C.D.1951); Annot., 17 A.L.R.Fed. 388 (1973). The specific question in the case before us is whether Hubbard’s request for change of venue constituted a request for affirmative relief within ■ the meaning of this general rule. We have found no decision by any Florida court addressing that question.

In two modern cases from other jurisdictions, the courts held that where a request for change of venue preceded a timely objection to the trial court’s personal jurisdiction, the movant waived the jurisdictional challenge. Killearn Properties, Inc. v. Lambright, Ind.App., 377 N.E.2d 417 (1978); Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y.1976). In the Killearn case, the court felt that the motion for change of venue was a request for affirmative relief by which the movant submitted himself to the personal jurisdiction of the court. In the Sangdahl case, the court observed that a motion for change of venue presupposes initial proper jurisdiction in the transferor court.

We hold that a request for change of venue following a timely asserted challenge to personal jurisdiction is a request for affirmative relief which constitutes a waiver of the jurisdictional challenge. In so holding, we perceive a distinction between the motions to dismiss lis pendens and to increase bond considered in Green v. Roth, and a motion for change of venue. In the former case, the motions were clearly matters of defense and the requested action of the court on the motions was the exercise of jurisdiction of the subject matter of the suit consistent with the challenged personal jurisdiction. Unlike those motions, a motion for change of venue requests the court to exercise its jurisdiction over the movant and is inconsistent with an objection by the movant to the existence of that jurisdiction. In our view, a motion for change of venue goes beyond a defense on the merits.

AFFIRMED.

SCHEB, C. J., concurs with DANAHY, J.

HOBSON, J., dissents with opinion.

HOBSON, Justice,

dissenting.

I respectfully dissent.

The majority opinion holds that a party waives a previously filed objection to personal jurisdiction if that party thereafter seeks affirmative relief of the court by filing a request for change of venue.

This court, in Green v. Roth, specifically adopted the order of the circuit court appealed in that case and quoted it at length. The Green case held that when personal jurisdiction is challenged and thereafter a motion to discharge the lis pendens and a motion to increase the bond posted to obtain an injunction are filed, the objection to personal jurisdiction is not waived. The court specifically held that moving the court to increase the bond was asking for affirmative relief.

In my opinion, moving to discharge a lis pendens is also a request for affirmative relief. I think the Green case supports this.

The majority opinion cites the Killearn and Sangdahl cases; however, in each of those cases the request for change of venue was filed prior to the objection to personal jurisdiction and therefore are not applicable to this case.

In attempting to distinguish the motions filed in the Green case from the motion in this case for a change of venue, the majority states that the motions in the Green case “were clearly matters of defense”. As pointed out above, the Green case specifically holds that the motion to increase bond was an affirmative request. After stating that the Green motions were matters of defense, the majority goes on to state “and the requested action of the court on the [Green] motions was the exercise of jurisdiction of the subject matter of the suit consistent with the challenged personal jurisdiction”. Assuming this statement to be true, I cannot agree that a motion for change of venue requests the court to exercise its jurisdiction over the movant. A motion for change of venue requests the court to move the subject matter of the case to another jurisdiction, thereby exercising the court’s jurisdiction over the subject matter of the suit.

Admittedly a motion for change of venue has nothing to do with a defense on the merits, but more importantly, it has nothing to do with any issue involved in the litigation of the merits of the case.

I would hold that a motion for change of venue filed after a challenge to personal jurisdiction does not waive such challenge.

This suit was filed in three counts: I) malicious prosecution; II) abuse of process; and III) invasion of privacy. Service of process was attempted on appellant pursuant to section 48.193(l)(b), Florida Statutes (1979). Appellant moved to quash service of process with a supporting affidavit. This affidavit was sufficient to challenge the service on counts I and II as to the allegations in the complaint. Appellees stood on their allegations in the complaint and offered no proof in support thereof. I would reverse the trial court as to these counts. The supporting affidavit was insufficient to overcome the allegations in count III of the complaint and I would, therefore, affirm as to count III.

      . The Church of Scientology of California, Inc. v. Cazares, 401 So.2d 810 (Fla. 2d DC A 1981).

      . A similar observation is made in Berard Construction Co., Inc. v. Municipal Court of the Los Angeles Judicial District, 49 Cal.App.3d 710, 122 Cal.Rptr. 825 (Ct.App.1975). In that case the court noted that California’s statutory motion to dismiss on the ground of inconvenient forum is inconsistent with an objection to personal jurisdiction over the movant because it concedes jurisdiction by asking the court to decline to exercise the jurisdiction it constitutionally has.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. George KOPULOS, Steven J. York and Daniel Scott Bonk, Appellees.
    No. 81-1562.
    District Court of Appeal of Florida, Second District.
    March 10, 1982.
    Rehearings Denied May 14, 1982.
    As Modified on Denials of Rehearings May 14,1982.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee George Kopu-los.
    Raymond E. LaPorte, Tampa, for appel-lee Steven J. York.
    A. R. Mander, III of Greenfelder & Man-der, Dade City, for appellee Daniel Scott Bonk.
   BOARDMAN, Acting Chief Judge.

Appellees were charged by information with conspiracy to traffic in cannabis in an amount in excess of 100 pounds and with trafficking in the same cannabis. The conspiracy count alleged that George M. Kopu-los, Steven J. York, and Daniel S. Bonk, in Pasco County, conspired to possess cannabis “between the 9th day of December, 1980 and the 21st day of December” 1980. The trial court dismissed this count on the authority of Cappetta v. State, 380 So.2d 1303 (Fla.3d DCA 1980), ruling that the charging language was impermissibly overbroad. We reverse.

In Cappetta, the third district held that if the crime of conspiracy has been alleged to have occurred between certain specified dates (as in the instant case between December 9 and December 21) then the information or indictment must be dismissed unless it is alleged that the conspiracy was continuing throughout that period or that the conspiracy commenced at the beginning of that period and was not accomplished until the end. We disagree with the holding in Cappetta.

Florida Rule of Criminal Procedure 3.140(d)(3) requires that each count of the information “shall contain allegations stating as definitely as possible the time and place of the commission of the offense charged.” Rule 3.140(o) further provides that no information shall be dismissed unless the court is of the opinion “that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” In other words, all that is required of the indictment or information is that it sufficiently apprise the defendant of the charges against him so that he may adequately prepare his defense and not be unfairly surprised by the evidence he is called upon to meet. United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971); United States v. Bullock, 451 F.2d 884 (5th Cir. 1971).

The Florida Supreme Court has held that “it is not necessary to state the exact date .of the offense if that date is not known; it is acceptable to state that the commission of the crime occurred within set limits if those limits are specifically stated.” Sparks v. State, 273 So.2d 74, 75 (Fla.1973). According to Sparks, an allegation in the information that the offense occurred “on or about” a stated date is not fatally vague unless it could be shown that time is material to the crime being charged or that the accused is prejudiced by the use of the phrase. In State v. Barnett, 344 So.2d 863 (Fla.2d DCA 1977), we criticized an indictment charging the commission of an offense “between the first day of October, 1975, and the eighteenth day of January, 1976” because nothing in the indictment stated that the crime was continuing throughout the specified period or commenced at the beginning of the period and was not accomplished until the end. However, we noted that this deficiency alone might not be enough to require dismissal of the indictment, and affirmed dismissal due to a number of other deficiencies. In Black v. State, 360 So.2d 142 (Fla.2d DCA 1978), aff’d, 385 So.2d 1372 (Fla.1980), we explained that Sparks and Barnett did not involve a total failure to make the allegation as specific as it could have been. We pointed out that the modern trend is to excuse technical defects which have no bearing upon the substantial rights of the parties in the absence of a showing of prejudice. See Lackos v. State, 339 So.2d 217 (Fla.1976).

Finally, in State v. Burkett, 344 So.2d 868 (Fla.2d DCA 1977), we had before us an information alleging the commission of a conspiracy “between September 9, 1975 and September 23, 1975.” Since the nature of conspiracy is such that it can be accomplished by several acts over a period of time, we held that the fourteen-day span between September 9 and September 23 was not so vague or long a period as to embarrass the accused in preparing their defense or to preclude a possible double jeopardy defense on a subsequent prosecution.

The information tracked the language of both the conspiracy statute, Section 777.04(3), Florida Statutes (1979), and the drug trafficking statute, Section 893.-135(l)(a)l, Florida Statutes (1979) which rendered it sufficient. Martinez v. State, 368 So.2d 338 (Fla.1978). While the conspiracy count might have been more artfully drawn, any technical defects it may contain are insufficient to warrant its dismissal. Appellees have not shown that they were prejudiced by any inartful pleading contained in the information.

Accordingly, the trial court’s order dismissing the conspiracy count of the information against appellees is REVERSED and the cause REMANDED for further proceedings.

OTT and DANAHY, JJ., concur.


author: WENTWORTH, Judge.

text:
    William J. CULLEN, Appellant, v. Mary B. CULLEN, Appellee.
    No. ZZ-355.
    District Court of Appeal of Florida, First District.
    March 22, 1982.

      George E. Day, Fort Walton Beach, for appellant.
    J. LaDon Dewrell of Dewrell & Blue, Fort Walton Beach, for appellee.
   WENTWORTH, Judge.

This appeal presents the question of whether, upon the dissolution of a marriage, federal law precludes a Florida court from awarding permanent periodic alimony in the amount of one half of military non-disability retirement pay. We find that such an award is not precluded, and also affirm offsetting special equities to both parties in investment property based upon contribution of purchase funds by the husband from a source unconnected with the marriage and services by the wife other than ordinary marital duties.

Appellant William J. Cullen and ap-pellee Mary B. Cullen were married approximately twenty-two years. In the order dissolving this marriage the trial court awarded the wife permanent periodic alimony in an amount equal to one-half of the net retirement pay that the husband was receiving for twenty-four years of service in the U. S. Air Force. We reverse that portion of the order providing that the alimony award would be a charge against the appellant’s estate to the extent that there might be any death benefits attributable to the retirement upon his death.

The appellant argues that the award is improper, because military pay and retirement are personal entitlements. He contends that to permit an award of one-half of the husband’s retirement to the wife as permanent periodic alimony runs counter to congressional intentions in providing retirement benefits for retired military personnel and is, therefore, prohibited by the supremacy clause of the U. S. Constitution. The appellant’s argument is grounded on the U. S. Supreme Court’s recent decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

McCarty involved an award to an army colonel’s spouse of an amount equal to a one-half interest in his nondisability retirement pay as part of the order of dissolution of the parties’ marriage. Since the husband had not retired at the time the order was issued, the award was applicable to future retirement benefits that he might be entitled to receive. The McCarty court found that such an award was in direct contravention of congressional intentions in providing nondisability retirement benefits for retired service personnel. Further, Congress had contemplated' that the system was intended not only to provide for retired personnel but to assist in providing a young and vigorous military force by acting as a recruitment and reenlistment inducement. McCarty, supra, at 453 U.S. 210, 101 S.Ct. 2731, 69 L.Ed.2d 593.

Although McCarty involved an army colonel, the appellant asserts its applicability to him as a retired air force colonel. Because the nondisability retirement benefit programs appear to be substantially the same for each service, the concepts embodied in McCarty must be considered here. McCarty, supra, at 453 U.S. 210, 101 S.Ct. 2731, 69 L.Ed.2d 594. However, that decision was based on an award of a share in such benefits pursuant to a state community property law which has not been adopted in Florida and the decision must accordingly be distinguished from the case at bar. The McCarty decision determined nondisability retirement benefits to be a personal entitlement payable to retired service personnel. Clearly, the “system does not embody even a limited ‘community property concept.’ ” McCarty, supra, at 453 U.S. 210, 101 S.Ct. 2737, 69 L.Ed.2d 601.

Community property and alimony awards depend, of course, upon different legal foundations. Community property is explained as including “property and pecuniary rights obtained by, or in the name of either the husband or wife after marriage by productive faculty. . .. ” 15A Am.Jur.2d Community Property § 3 (1976). Alimony is an allotment of sums of money payable at regular intervals or in lump sum, as distinguished from a portion of a spouse’s estate, and it is an obligation imposed by law separate and distinct from the parties’ property rights. 25 Fla.Jur.2d Family Law §§ 433-434; 437 (1981). This distinction was recognized in the federal garnishment statute covering child support and alimony obligations of service personnel, 42 U.S.C. § 659(a) (1977). Alimony is there defined as “periodic payments of funds for the support and maintenance of the spouse. . . . ” 42 U.S.C. § 662(c) (1977). Accord, Welsh v. Welsh, 160 Fla. 380, 35 So.2d 6, 8-9 (1948); 25 Fla.Jur.2d Family Law § 444 (1981). The federal statutory definition of alimony specifically excludes community property concepts. See, 42 U.S.C. § 662(c) (1977).

McCarty recognized the federal garnishment statute and pointed to the distinction between alimony and community property in stating that, “it is logical to conclude that Congress, in adopting § 462(c), thought that a family’s need for support could justify garnishment, even though it deflected other federal benefits from their intended goals, but that community property claims, which are not based on need, could not do so.” The purpose of permanent periodic alimony is to provide for the needs and necessities of life of a former spouse as established by the marriage of the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). On the basis of that reasoning we find that McCarty does not bar the award of permanent periodic alimony from the proceeds of appellant’s military retirement pay in the present case.

The trial court did err, however, in providing that this alimony award should be a charge against appellant’s estate to the extent that there may be any death benefits attributable to his military retirement pay. The award was made as a part of permanent periodic alimony, and such awards in Florida are viewed as terminated upon the death of either spouse. Canakaris, supra, 382 So.2d at 1202. Remand will be necessary so that the court may correct this portion of its order.

The order also reflects an award to the wife of a one-half interest in all real property obtained since the inception of the marriage. The real property obtained by the Cullens included two condominium units in the Fort Walton Beach area. The units were purchased for investment purposes and were to be rented. The record indicates that the titles and mortgages on the units were in the names of both parties. The down payment in an amount of $7,000 was obtained by the sale of stock held in both names. An additional $10,000 for the purchase was obtained in the form of a loan from appellant’s father for which the appellant was solely responsible.

The appellant claims a special equity in the condominium units to the extent of the $10,000 down payment obtained as a loan from his father. The appellant also argues that, despite the joint title, a gift of this interest in the units was not intended. The appellee responds that $7,000 of the purchase price was from the sale of jointly held stock; that all mortgage payments were made from a jointly held bank account; that the record title is indicative of the fact that the units were to be jointly held on an equal basis; and that she is entitled to a special equity due to her extensive personal labor investment in the condominium units, including refinishing of furniture, invento•rying, planning of interior design, decoration, and preparation of the kitchen for use.

We affirm the determination of the lower court in awarding a one-half interest in the two condominium units to each of the parties. The record title is indicative of the fact that the units were jointly held with both parties having a right to an equal interest. Ball v. Ball, 335 So.2d 5, 7 (Fla.1976). The record evidence supports the lower court’s determination that each of the parties is entitled to an equal equity in the property.

The units had been purchased for investment purposes and were to be rented. The record supports a conclusion that the wife’s personal industry in conducting various preparations for occupancy was essential to the parties’ anticipated success with their investment. While the evidence would seem to suggest that the husband’s contribution from funds apart from the marriage constitutes a special equity, we find no error in the court’s apparent determination that the wife’s efforts represented a contribution of equal value. Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980).

Therefore, we affirm the award of equal interests in the condominium units and the monthly permanent periodic alimony award equal to one-half of the former husband’s net Air Force retirement pay. The award of death benefits attributable to the appellant’s Air Force retirement pay is reversed and the cause is remanded so that the lower court may conform its final order to this opinion.

ERVIN and JOANOS, JJ., concur.

      . The final judgment states in relevant part:
      5. The Court awards as additional permanent periodic alimony unto the Respondent/wife commencing as of December 1980, a sum equal to one-half (V2) of the net retirement pay that the Petitioner/husband receives from the United States Air Force. This shall be a charge against his estate to the extent that his estate receives any death benefits attributable to the said Petitioner/husbands retirement upon his death. The Court holds net retirement pay to mean his Air Force retirement pay less Federal Income Tax and social security payments. This shall be commencing as of any sums he receives subsequent to today.

      . U.S.Const.Art. VI, cl. 2.

      . § 659. Enforcement of individual’s legal obligations to provide child support or make alimony payments — United States and District of Columbia to be subject to legal process
      (a) Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment due from, or payable by the United States or the District of Columbia, (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments. [emphasis added].

      . § 662. Definitions
      For purposes of section 659 of this title— ******
      (c) The term “alimony”, when used in reference to the legal obligations of an individual to provide the same, means periodic payments of funds for the support and maintenance of the spouse (or former spouse) of such individual, and (subject to and in accordance with State law) includes but is not limited to, separate maintenance, alimony pendente lite, maintenance, and spousal support; such term also includes attorney’s fees, interest, and court costs when and to the extent that the same are expressly made recoverable as such pursuant to a decree, order, or judgment issued in accordance with applicable State law by a court of competent jurisdiction. Such term does not include any payment or transfer of property or its value by an individual to his spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses, [emphasis added].

      . McCarty, supra, at 453 U.S. 210, 101 S.Ct. 2740, 69 L.Ed.2d 604, citing Hisquerdo v. Hisquerdo, 439 U.S. 572 at 587, 99 S.Ct. 802, 811, 59 L.Ed.2d 1 (1979).