text:
    Phillip LUCAS v. Madrid Phillip LUCAS, by Next Friend, et al.
    No. 53589.
    Supreme Court of Mississippi.
    June 9, 1982.
    Rehearing Denied June 30, 1982.

      Paul Abston, Meridian, for appellant.
    Laurel G. Weir, Philadelphia, for appel-lee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Lauderdale County wherein Billy Wayne Jenkins, appellee, was attempting to adopt Madrid Phillip Lucas, a ten-year-old male child, who is the natural son of Rita Carol (Lucas) Jenkins. Rita Carol Jenkins was awarded custody of the child by a 1975 Alabama divorce decree. Phillip Lucas, appellant, the child’s natural father, posed an objection to the adoption, denying he had abandoned the child.

Appellees subsequently amended the petition for adoption asking for a judgment against Phillip Lucas for child support payments in arrears in the event the adoption request was denied. The chancellor denied the adoption; however, he granted Rita Jenkins a judgment for $2500 child support that was agreed to be in arrears. The chancellor further ordered that visitation rights be reduced from two weekends per month and two months each summer to one weekend per month and one month in the summer; that the visitation rights of the appellant with Madrid Phillip Lucas cease until child support payments in arrears were made, and that appellant post a $2000 bond conditioned on his returning the child to the appellees after visitation. Aggrieved of the chancellor’s decision, Phillip Lucas appeals and assigns the following errors for reversal:

1. The lower court erred in granting appellees a judgment for arrearages in child support based on an Alabama decree and ordering appellant’s visitation rights to cease until paid, in changing his visitation rights provided by the Alabama decree, in adjudging him to be in contempt of the Mississippi and Alabama courts, and in ordering him to post a bond to return his child to appellees after visitations, in this adoption proceeding.
2. The lower court erred in granting a judgment for child support arrearages against appellant, an Alabama citizen, based on an Alabama decree, and ordering his visitation rights to cease until paid, in changing his visitation rights provided by the Alabama decree, in adjudging him to be in contempt of the Mississippi and Alabama courts, and in ordering him to post a bond requiring him to return his child to appellees in Mississippi after visitations, under the full faith and credit clause of the United States Constitution.
3. The lower court erred in modifying the decree of the Circuit Court of Choctaw County, Alabama, by changing appellant’s visitation rights provided by the Alabama decree.
4. The lower court erred in ordering appellant to post a $2000 bond conditioned on his returning his child to appel-lees.

Phillip Lucas and Rita Lucas Jenkins were divorced in Choctaw County, Alabama on May 23, 1975. The divorce decree incorporated an agreement between the parties which provided inter alia that Mrs. Jenkins would have care, custody and control of the parties’ minor child subject to reasonable visitation rights of Lucas. The agreement provided for child support payments in the amount of $100 per month. On March 17, 1977, Lucas was found by the Alabama court to be $450 in arrears in child support payments. An equitable judgment in this amount was rendered against Lucas.

Subsequent to the divorce, Rita Lucas Jenkins married the petitioner, Billy Wayne Jenkins. The Jenkins, along with the minor child, reside in Lauderdale County, Mississippi. Phillip Lucas is still a resident of Choctaw County, Alabama.

Before the petition for adoption was filed, appellant had paid very little, if any, child support since May 1978, but resumed child support payments after the petition was filed. At the time of the trial it was stipulated that the appellant was $2500 in arrears in his child support payments.

The appellees sought to adopt the child over appellant’s objection on the ground that appellant had in effect abandoned the child due to his continued refusal to pay child support. The appellees subsequently amended their petition asking for a judgment against appellant for the amount of child support payments in arrears.

Both Rita Lucas Jenkins and Billy Wayne Jenkins asserted at the hearing that the child should be adopted to Billy Wayne Jenkins in order to provide the child with a more stable family relationship. Rita Carol Jenkins and Billy Wayne Jenkins also testified that the present visitation arrangements precluded the child from participating in certain summer programs such as little league baseball and swimming lessons due to his extended visitation with his father during the summer months. At the conclusion of the hearing, the chancellor denied the request for adoption, but awarded Rita Carol Jenkins a judgment for past-due child support and further reduced visitation to one weekend per month and one month during the summer vacation. The chancellor further ordered the appellant to post a $2000 bond for redelivery of the child after visitation.

Did the chancellor err in adjudicating other issues since the appellees primarily sought adoption of the child?

The petition and the amended petition in this case appear to be by Madrid Phillip Lucas, without legal guardian, by his adult mother and next friend Rita Carol Jenkins. He is joined in the petition by Rita Carol Jenkins, individually, and further, is joined in said petition by Billy Wayne Jenkins. However, the petitioner in an adoption proceeding must be that party with real interest who is seeking to adopt the child, it being necessary to have the child joined in the petition by a guardian ad litem or otherwise. It is also necessary to have both parents join in the petition or if the natural parents do not join, they must be made parties.

As is evidenced by the reading of the whole of the petition, Rita Carol Jenkins joined in the petition as the mother seeking the adoption to her husband and current stepfather of Madrid Phillip Lucas, namely, Billy Wayne Jenkins. Rita Carol Jenkins did not need to adopt the child as she is the natural mother thereof. Madrid Phillip Lucas is not a proper petitioner in that he is the subject of the petition for adoption, therefore leaving the real party in interest and the proper petitioner Billy Wayne Jenkins.

Appellant contends it was error for the chancellor to adjudicate any other issues aside from the adoption matter. We agree, and state that this Court so held in Ford v. Litton, 211 So.2d 871 (Miss.1971), which involved an adoption contest between a natural grandmother and step-grandfather and the minor child’s natural father. Custody of the minor child had previously been awarded to the child’s mother who consented to the adoption. The natural father, aside from objecting to the adoption, filed a cross-petition wherein he prayed for a modification of the divorce decree. In upholding the chancellor’s dismissal of the father’s cross-petition, this Court stated:

The chancellor was correct in dismissing the cross-petition praying for a change of custody. Where there has been a substantial change in the circumstances of the parties, a petition may be filed in the original divorce suit. § 2743 Miss.Code 1942 Ann. (1956).
Visitation privileges and custody are matters to be considered and decided in the first instance by the chancery court upon the filing of proper petition therefor. (211 So.2d at 874).

Furthermore, appellees failed to allege a material change in circumstances subsequent to the rendition of the Alabama divorce decree. The only reference made as to these items was a prayer to the effect that visitation cease until child support payments in arrears were made. This Court has quoted Griffith, Mississippi Chancery Practice, C.J.S. and Am.Jur.2d at length on this subject in Seymore v. Greater Mississippi Life Insurance Company, 362 So.2d 611 (Miss.1978), in part as follows:

The issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and the proof contained in the record. Judge Griffith, in his monumental work on Mississippi Chancery Practice, gave these sound reasons why it must be so:
“Courts do not instigate or initiate civil litigation. They act only when called on for aid, and only in respect to that which is within the call. The potentiality of a court to consider and determine a given class of cases over which it has jurisdiction is made actual, in a particular case within that class, only when a party entitled to relief with respect thereto has applied to the court by his written pleading and even then his written application must state the facts upon which it is based or else it will still be ineffectual to actuate the court to grant any relief. The power of the court, then, will be exerted only upon, and will not move beyond, the scope of the cause as presented by the pleadings, for the pleadings are the means that the law has provided by which the parties may state to the court what it is they ask of the court and the facts upon which they ask it; and proof is received and is considered only as to those matters of fact that are put in issue by the pleadings, and never beyond or outside of them. If the rule were otherwise courts could become the originators instead of the settlers of litigious disputes, and parties would never know definitely what they will be required to meet or how to meet it.” Griffith, Mississippi Chancery Practice (Second Edition 1950), § 564, pp. 586-87. (Emphasis added).
In 89 C.J.S. Trial, § 633b, at page 464 (1955), we find this language:
“The findings when compared with the pleadings must be within the issues and be responsive thereto, and must cover the material issues raised by the pleadings, and this is required whether or not evidence is introduced on such issues. It is improper to make findings outside the scope of the issues made by the pleadings; and where such findings are made, they are nugatory and cannot support conclusions of law or the judgment; they must be disregarded or treated as immaterial.”
76 Am.Jur.2d, Trial, § 1264, at page 215 (1975) says:
“The findings of fact made by the court should respond to and be within the issues, and a finding outside the issues cannot be considered in determining whether the judgment is supported by the findings.” (emphasis ours). (362 So.2d at 614-615)

Moreover, in this case the petitioner and real party in interest, Billy Wayne Jenkins, had no right to reduce the visitation of Madrid Phillip Lucas with the appellant, no right to have the visitation ceased until payment of the child support that was in arrears, no right for a $2000 bond conditioned on timely returning the child after visitation. Therefore, the chancellor should not have rendered any decision concerning any of these matters other than the question of the adoption of Madrid Phillip Lucas to Billy Wayne Jenkins and whether or not there had been any abandonment of said child by the appellant herein.

It is not necessary that we rule upon the other assignments of error because the ruling on this assignment disposes of the other three. Therefore, it follows that the chancellor’s decree in this cause dated September 2, 1981, is affirmed as to the denial of the adoption of Madrid Phillip Lucas to Rita Jenkins and Bill Jenkins; and the remainder thereof modifying the Alabama decree of March 17,1979, awarding judgment to Rita Jenkins against Phillip Lucas for $2500 and changing place of payment; reducing visitation to one weekend per month and one month per summer; ceasing all visitation rights of Phillip Lucas if child support was not paid within sixty days; and making a $2000 bond for prompt return of minor child to Rita Jenkins after visitation, are reversed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Craig CONNER v. STATE of Mississippi.
    No. 53512.
    Supreme Court of Mississippi.
    June 9, 1982.
    Joe C. Webster, Thomas H. Pearson, Clarksdale, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Coahoma County; Elzy J. Smith, Judge.

Before WALKER, BOWLING and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and BROOM, ROY NOBLE LEE and DAN M. LEE, JJ., concur.


author: TYSON, Judge.

text:
    Charles Ray CLENCY, alias v. STATE of Alabama.
    6 Div. 743.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.

      Thomas W. H. Buck, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Charles Ray Clency was indicted for the first degree robbery of Mrs. Imo Chatham. After hearing the evidence and receiving full instructions with reference first and second degree robbery, the jury found Mr. Clency, the appellant, guilty of second degree robbery. In a subsequent sentencing hearing the trial court, pursuant to the Alabama Habitual Felony Offender Act, sentenced appellant to life imprisonment.

Appellant’s motion for a new trial was duly denied, and this appeal followed.

The evidence is undisputed that Mrs. Imo Chatham was an employee of the Wasson Drug Company on 10th Avenue North in Birmingham, Alabama, when it was robbed by two men on the morning of October 8, 1980. Shortly after 9:00 a. m. Mrs. Chat-ham, a clerk-cashier working in the front of the store, assisted one of these men who said he needed some hair coloring. She handed him for his consideration, a box of “Nice and Easy” hair coloring, but he did not make a purchase. Instead, he asked to use the telephone, which Mrs. Chatham retrieved for him from behind the sales counter in the front of the store. He never used the phone, but kept “looking around,” especially at the front door. Within a “very few” minutes after this first man had entered, a second man came through the front door in a “stooped” position and proceeded, in that position, to the rear of the store. This second man was wearing a hat and was holding a rag over his face. Mrs. Chat-ham followed him toward the rear of the store. When he reached the pharmacy counter, he pointed a pistol at Mr. Peden, the pharmacist on duty, and demanded certain drugs.

When Mrs. Chatham realized what was happening she quietly returned to the front of the store and activated the silent alarm. It was at this point that the first man, the one she had helped with the hair coloring and the telephone, stepped behind the sales counter and demanded that she hand over all the money in the cash register. Mrs. Chatham complied with his demands because she was “totally petrified” and “just horrified” and had “never been so scared in her life.” (R. 108).

This man in the front of the store then began shouting instructions to the gunman in the rear of the store. He told the gunman to make sure Mr. Peden did not have a gun and he reminded the gunman of several specific “drugs” that he should obtain from the pharmacist. He further instructed him, when the gunman had returned to the front of the store, to remove the money from the other cash register.

The two men then fled together on foot.

When the police arrived to investigate the crime, Mrs. Chatham showed them the box of “Nice and Easy” hair coloring that the man in the front of the store had handled, and both she and Mr. Peden gave them descriptions of both robbers.

Mrs. Chatham later identified from a police “line-up” this appellant, Charles Clency, as the man who handled the box of hair coloring, who asked to use the telephone, who demanded that she hand over money from the cash drawer, and who directed the gunman during the final stages of the robbery. She also made a positive identification of this appellant in court.

The appellant was further identified through the analysis of “latent” fingerprints removed from the box of hair coloring handled during the robbery. An evidence technician “lifted” fingerprints from the box and deposited these “lifts” in a police lock box. (R. 137). These “lifts” were removed from the lock box by the fingerprint technician who subsequently matched these “latent” prints to the “known” fingerprints of this appellant. (R. 159-161).

The appellant did not take the stand in his defense. His sole defense was that of “alibi”. His employer, Ishmel Jones testified that the appellant was at work from 8:00 a. m. to 12:30 p. m. on October 8, 1980. Mr. Jones remembered that day because it was the last day the appellant worked for him. The appellant’s wife testified that that day the appellant left for work at 7:30 a. m. (as usual) and returned from work at 4:30 p. m. (also as usual.) She further testified that the appellant also worked for Mr. Jones for several days after October 8 (directly contradicting Mr. Jones' testimony-)

The jury apparently disregarded this “alibi” evidence and concluded that the appellant was indeed guilty of this robbery of Mrs. Chatham.

I

Appellant predicates two of his arguments on appeal on the theory that there were two independent robberies that day in the Wasson Drug Store. He claims that there was evidence to indicate that the robbery of Mrs. Chatham in the front of the store was not connected with the robbery of Mr. Peden in the rear of the store.

A

Under this theory of the evidence he, therefore, contends it was error for the trial court to permit, in appellant’s trial, evidence of the events involving the gunman and Mr. Peden in the rear of the store.

Contrary to appellant’s assertions, however, all of the evidence of the entire incident indicates that the two men were acting in concert. In fact, the man later identified by Mrs. Chatham as this appellant directed the gunman’s activities during the final stages of the robbery. Any doubt that the two men were partners was eliminated at that point and confirmed when they fled together on foot.

The appellant offered no evidence that the robbers acted independently. Instead, his defense was that of “alibi”.

The evidence of the entire incident as witnessed by Mrs. Chatham and Mr. Peden was, of course, admissible. In our view, this was one continuous transaction.

B

In furtherance of his unfounded “independent robberies” theory, the appellant requested several written jury charges (Numbers 38,40, 41 and 44) on the lesser included offenses of third degree robbery and second degree theft. Had there been evidence that the appellant acted independently, or that the appellant did not take the money “from Mrs. Chatham’s person” and did not “use force,” then correct charges with reference these lesser included offenses might have been warranted.

However, all four charges were properly refused because there was no such evidence of either lesser offense. The charges were not applicable to the evidence of the case. Taylor v. State, 408 So.2d 551 (Ala.Cr.App.), cert. denied, 408 So.2d 555 (Ala.1981), and cases therein cited. Furthermore, several of the charges were confusing or included vague or incorrect statements of law.

II

Appellant’s contention that the evidence of prior felony convictions presented during the sentencing hearing was insufficient to enhance his punishment under Alabama’s Habitual Felony Offender Act is not supported in the record. Six exhibits, copies of two certified judgment entries and four certified trial docket sheets, were presented to the trial court (R. 244) as evidence of appellant’s prior convictions. Though the use of one of these “priors” was questioned (because of appellant’s age at the time of conviction), the proof of all six was adequate. See; Thatch v. State, 397 So.2d 246 (Ala.Cr.App.), cert. denied, 397 So.2d 253 (Ala.1981) and cases therein cited (general use of certified judgment entries); Act Number 1037, General Acts of Alabama 1971, and Gilbert v. State, 410 So.2d 473 (Ala.Cr.App.1982) (use of trial docket sheets in Jefferson County).

The trial court's sentence of life imprisonment, in light of this proof of at least three prior felony convictions, was proper under the Alabama Habitual Felony Offender Act. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.), cert. denied, 392 So.2d 1280 (Ala.1980).

III

Appellant further asserts that the indictment was fatally defective because it contained a misspelling of the word “escaping,” and because it failed to aver that the appellant would be sentenced pursuant to the Habitual Felony Offender Act.

Appellant claims that the indictment was misleading because the word “escaping” was spelled “exceping.” (Interestingly, in brief the appellant misquotes the misspelling as “excepting”.) In any event, whether this was a spelling error or a typographical error (it appears to be the latter), it is not fatal here because it was not prejudicial to the substantial rights of this appellant. Section 15-8-4, Code of Alabama 1975; McKessick v. State, 291 Ala. 564, 284 So.2d 516 (1973). The word “escaping” was in a clause in the indictment that was, under the circumstances of this ease, unnecessary and, thus, surplusage. The remainder of the indictment fairly and adequately charged this appellant with the robbery in question. Johnson v. State, 405 So.2d 149 (Ala.Cr.App.1981), and cases therein cited.

Furthermore, this court has recently held that the indictment need not state that sentencing will be pursuant to the Habitual Felony Offender Act. Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981).

IV

The remainder of appellant’s assertions on appeal are without merit either because they are unfounded or unsupported in the record or because the trial court properly exercised its discretion, with reference thereto.

A

Appellant challenges the clarity of the trial court’s instructions to the jury on “complicity” (R. 220, 235, 236). We have reviewed these instructions and have found nothing misleading or in any way harmful to this appellant.

B

The appellant moved for a mistrial when he discovered during closing arguments that a blackboard used to diagram the scene of the crime had been removed. The blackboard had been used by both parties in questioning witnesses and had been viewed by the jurors. However, it had not been introduced into evidence. We agree with the trial court that the said blackboard’s unexplained disappearance did not warrant a mistrial.

C

Appellant contends that the fingerprint card (from the police files) which was used in identifying the “latent” fingerprints on the box of hair coloring was unreliable as evidence. However appellant failed to preserve this issue for our review. He did not challenge the authenticity of this card at trial.

Moreover, for aught that appears in the record, the fingerprint card was properly identified as that of this appellant. The officer who made the card identified it in court and stated it had not been altered. The card itself contained the appellant’s signature, his date of birth and other vital statistics obtained from the appellant when the card was made (i.e. on the day of his arrest). Cummings v. State, 356 So.2d 779 (Ala.Cr.App.1978); Little v. State, 357 So.2d 379 (Ala.Crim.App.1978).

D

The appellant further claims that he did not receive proper notice of the state’s intention to proceed with sentencing under the Habitual Felony Offender Act. Such a claim is not supported in the record.

Copies of the notice served by the state on the day of the trial are included in the record. (R. 265). For aught that appears this notice was sufficient. Rule 6(b)(3)(ii), Temporary Rules of Criminal Procedure; Smith v. State, 401 So.2d 251 (Ala.Cr.App.), cert. denied, 401 So.2d 257 (Ala.1981).

E

Appellant’s complaint that Mrs. Chatham’s in-court identification of appellant was “tainted” because of a suggestive “line-up” identification is unfounded and unsupported by the record. We know of no rule prohibiting the display of more than one “suspect” in a single “line-up.” Furthermore, there was no evidence in the record that any aspect of the “line-up” identification impermissibly prejudiced this appellant. See Childers v. State, 339 So.2d 597 (Ala.Cr.App.), cert. denied, 339 So.2d 601 (Ala.1976).

F

Appellant also argues that reversible error occurred when the state asked Mr. Peden if he had identified the “gunman” in a “line-up”. This question was never answered because the trial court sustained appellant’s objection thereto. The harm (if any) to this appellant was thereby avoided. No error appears.

This case is therefore, due to be and is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    William Melvin WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 55875.
    Supreme Court of Florida.
    April 1, 1982.
    Rehearing Denied July 8, 1982.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Richard B. Greene, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Mark Horn and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

William Melvin White appeals his conviction of first-degree murder and sentence of death. We affirm.

White was a member of a Kentucky chapter of the Outlaws, a motorcycle gang, but was visiting the Orlando chapter. A group of the Outlaws, accompanied by some girl friends, visited an Orlando nightclub where they met Gracie Mae Crawford. Gracie Mae accompanied some of the Outlaws back to their Orlando clubhouse. Soon after returning to the clubhouse, White retired to a bedroom with his girl friend. Sometime thereafter White was called by Richard DiMarino who stated that Crawford liked blacks and that they had to teach her a lesson. White dressed and went into the kitchen area where he joined DiMarino and Guy Ennis Smith in severely beating Crawford. Whether DiMarino or White led the assault is unclear, but one witness testified of White’s hitting Crawford with his fist and knocking her to the floor. After the beating, DiMarino and White placed Crawford in the middle of the front seat of White’s girl friend’s car. White started driving but along the way stopped the car and DiMarino drove the car to the end of a deserted road. (The victim, White and DiMarino had done a lot of drinking that evening, but White’s girl friend testified that he knew what he was doing.) After they stopped the car, DiMarino and White pulled Crawford from the car, passed her over a barbed wire fence, and laid her on the ground. White then straddled her, took out his knife, stabbed her fourteen times and slit her throat. He handed the knife to DiMarino who also cut her throat. Crawford died as a result of the wounds inflicted upon her.

While leaving the area White and DiMar-ino ran out of gas at the Seaworld parking lot and were later identified by Seaworld security guards who had given them gas. White and DiMarino went back and picked up the body of the deceased and thereafter discarded it at a different place. The body was discovered that afternoon.

On appeal White raises eight issues going to the trial and his conviction and also raises the propriety of the death penalty. Each of the eight points concerns claims of trial error. After reviewing the record, we find no merit in any of the points raised and do not feel that any warrant or require specific discussion. Viewed in the context in which they were made, the prosecutor’s comments were proper and reasonable and did not trespass upon the defendant’s rights to a fair trial. Spencer v. State, 133 So.2d 729 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962). The judge’s handling of the jury and the witnesses was proper, and there was no introduction of improper evidence. We have reviewed the evidence for its sufficiency and have searched the record for other error. We find the evidence sufficient to convict and can discern no reversible error.

The jury unanimously recommended the imposition of the death sentence. The trial judge found three aggravating factors and recited his reasons therefor. No testimony was presented of any mitigating circumstances, statutory or non-statutory, but the trial judge found the mitigating circumstance of no previous felony convictions. We are satisfied that the trial judge weighed the aggravating circumstances against this and any other mitigating circumstances in pronouncing sentence. The findings of the trial judge are supported by the evidence, and his judgment should not be disturbed. In affirming the sentence we are fully aware that DiMarino escaped with a conviction of/a third-degree murder. While this is fortunate for him, it does not require the reduction of White’s sentence. White was the executioner, and his sentence is warranted.

It is so ordered.

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

      . The first six issues deal with comments by the prosecutor in his closing argument: (1) Threats to the life of the key prosecution witness and his family; (2) alleged solicitation of a conviction because the codefendant had been convicted; (3) an alleged comment on the defendant’s failure to testify; (4) the key prosecution witness’ ability to pass or fail a polygraph test; (5) errors for citing passages from the Bible; (6) an alleged comment on the state’s belief in the defendant’s guilt. The last three issues concern the trial court’s instructions to the key prosecution witness, alleged errors in the collective voir dire, and alleged error in the sentencing.

      . The trial judge found that:
      d) The murder of Gracie Mae Crawford was committed while the Defendant was engaged in the commission of a kidnapping. The evidence is clear that Gracie Mae Crawford was severely beaten to the extent of causing brain damage. Further, she was quite intoxicated. She was “helped” from the kitchen to the car by Richard DiMarino. She asked to be taken home. She was placed between DiMarino and White and against her will, forceably and secretly confined for the purpose of murdering her in a remote area. Circumstance “d” is applicable.
      e) The murder of Gracie Mae Crawford was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. Although it may be argued that the crime was committed for the purpose of avoiding or preventing a lawful arrest by hindering law enforcement officers from discovering the commission of an aggravated battery by Smith and his co-defendants and avoiding punishment and further that the murder was accomplished to eliminate the victim of their crime, the Court has taken the construction of this circumstance most favorable to the defendant and finds that these facts would be more appropriate under circumstance (g) below.
      ******
      g) The murder of Gracie Mae Crawford was committed to disrupt or hinder the enforcement of laws, i.e., to escape detection and punishment for the crime of aggravated battery. See circumstance (e) above. Circumstance “g” is applicable.
      h) The murder was especially heinous, wicked, and cruel. The victim, beaten and intoxicated, was quite helpless and unable to defend herself from the Defendant’s conscientious, willful, purposeful, and savage attack. The Defendant repeatedly struck the victim in the chest and face with a knife causing fourteen separate puncture wounds, at least three of which would have alone been fatal. To insure the death of his victim, the Defendant then sliced her throat. She died as a result of planned, methodical, cruel, wanton, malicious, atrocious, conscienceless, pitiless crime unnecessarily tortuous to the victim. Without further elaboration, circumstance “h” is applicable.


author: ALDERMAN, Justice.

text:
    John W. LeDUC, Appellant, v. STATE of Florida, Appellee.
    No. 60531.
    Supreme Court of Florida.
    June 10, 1982.
    John H. Hall, Steven Klugman, Mitchell A. Karlan, Debevoise & Plimpton, New York City, Mary Charlotte McCall, Davis, Kiesling & McCall, Harry L. Witte, Tallahassee, and Jack Behr, Public Defender, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ALDERMAN, Justice.

LeDuc appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion on the basis that the trial court erred in not granting him an evidentiary hearing because, he alleges, the motions, files, and record in his case do not conclusively show that he is entitled to no relief. We agree insofar as LeDuc’s allegations pertaining to the voluntariness of his guilty plea and ineffective assistance of counsel. Both of these grounds are appropriate bases for collateral attack. Knight v. State, 394 So.2d 997 (Fla.1981); Robinson v. State, 373 So.2d 898 (Fla.1979).

LeDuc pleaded guilty to the rape and murder of a nine-year-old girl. The sentencing jury returned an advisory sentence of death, and he was sentenced to death by the trial court. While his direct appeal was pending here, we relinquished jurisdiction to the trial court to enter written findings of fact in support of his sentence and later relinquished jurisdiction to the trial court with directions to consider a psychiatric report of LeDuc prepared by the Devereux school. The trial court reaffirmed its denial of LeDuc’s motion for certification as a mentally disordered sex offender and reaffirmed its imposition of the death penalty. We affirmed the convictions and death sentence. LeDuc v. State, 365 So.2d 149 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979).

Thereafter, on November 17,1980, LeDuc filed a Rule 3.850 motion in which he alleged that he was denied effective assistance of counsel for several reasons which he enumerated in great detail. LeDuc also contended that his convictions were invalid because they were based upon guilty pleas not knowingly and voluntarily entered into. He alleged, among other things, that his trial counsel coerced him to plead guilty and that his counsel failed to accurately relate to LeDuc the actual terms of the plea bargain and threatened to leave him without counsel on the day of trial if he did not agree to plead guilty. These claims are intertwined since the alleged involuntariness of his guilty pleas partially rests on the alleged ineffectiveness of his counsel. In his motion, LeDuc also raised a multitude of additional grounds.

Without holding an evidentiary hearing, the trial court denied the Rule 3.850 motion and found that the allegations did not constitute legal grounds for granting a new trial or release of LeDuc. In support of its order, the trial court attached the transcripts of LeDuc’s plea and sentencing proceedings.

We hold that only the claims of ineffective assistance of trial counsel and involuntariness of the guilty pleas warrant an evi-dentiary hearing. The motion and attached transcripts do not conclusively show that LeDuc is entitled to no relief, and therefore an evidentiary hearing is required by Florida Rule of Criminal Procedure 3.850, which provides in pertinent part:

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant him a new trial or correct the sentence as may appear appropriate.

In evaluating LeDuc’s claim that his pleas were involuntary, the trial court should follow our decision in Robinson v. State, wherein we explained the different standards to be applied where a guilty plea is withdrawn prior to sentence and where a guilty plea is challenged after sentence. We explained that after a sentence is imposed, the burden is on the defendant to prove that a manifest injustice has occurred, and we referred to our decision in Williams v. State, 316 So.2d 267 (Fla.1975), in which we discussed in detail the standards that apply in these two situations. In Williams, we agreed with the American Bar Association Standards of Criminal Justice relating to pleas of guilty requiring that a manifest injustice must be demonstrated by a defendant after sentence is imposed. Before a sentence is imposed, Florida Rule of Criminal Procedure 3.170(f) provides:

(f) Withdrawal of Plea of Guilty. The court may, in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereof, set aside such judgment, and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty.

Thus, when this cause proceeds before the trial court for an evidentiary hearing as to his claim relating to his guilty pleas, LeDuc will have the burden of proving that a manifest injustice has occurred.

In evaluating LeDuc’s claim of ineffective assistance of trial counsel, the trial court should follow our decision in Knight v. State wherein we set forth the test for determining whether a defendant has been provided with reasonably effective assistance of counsel. We adopted the following four principles as a standard:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in DeCoster III [v. United States, 624 F.2d 196 (D.C.Cir.)]: “To be ‘below average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.” 624 F.2d at 215. We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.
Third, defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); DeCoster III.

394 So.2d at 1001 (footnote omitted).

We acknowledge that LeDuc also challenges the ineffectiveness of appellate counsel, but in view of our present decision to remand for evidentiary hearing, we find it unnecessary to reach this issue at this time. We further find that LeDuc’s other allegations are without merit.

Accordingly, the order of the trial court is reversed in part, and this cause is remanded to the trial court to hold an evidentiary hearing on LeDuc’s claims of ineffectiveness of trial counsel and the involuntariness of his guilty pleas and then to either grant or deny the requested relief.

It is so ordered.

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

ADKINS, J., dissents.

      . ABA Standards Relating to the Administration of Criminal Justice, Pleas of Guilty, 14-2.1 (1979), which this Court quoted with approval in Williams v. State, 316 So.2d at 273-74, provides in part:

        Plea withdrawal.

      (ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
      (1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;
      (2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;
      (3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed;

        (4) he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or
      (5) he did not receive the charge or sentence concessions contemplated by the plea agreement concurred in by the court, and he did not affirm the plea after being advised that the court no longer concurred and being called upon to either affirm or withdraw his plea.


author: ALDERMAN, Justice. OVERTON, Justice,

text:
    STATE of Florida, Petitioner, v. Elsie Virginia BOBBITT, Respondent.
    No. 59955.
    Supreme Court of Florida.
    June 24, 1982.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for petitioner.
    Thomas S. Keith and Nancy A. Daniels, Asst. Public Defenders, Second Judicial Circuit, Tallahassee, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, First District, in State v. Bobbitt, 389 So.2d 1094 (Fla. 1st DCA 1980), holding that the “castle doctrine” or privilege of nonretreat in the home applies even where co-occupants, both legally residing in the home, are involved. This decision expressly and directly conflicts with the Fourth District’s decision in Conner v. State, 361 So.2d 774 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1364 (Fla.1979), holding that where the assailant and the victim are both legal occupants of the same home, the privilege of nonretreat does not apply and the defense-of-the-home instruction need not be given. We agree with the Fourth District and hold that when an assailant and the victim are legal occupants of the same home, the “castle doctrine” does not apply. We therefore quash the decision of the First District.

Elsie Bobbitt was charged with second-degree murder of her husband and was found guilty by a jury of manslaughter. Her husband, who was legally residing with her, attacked her in their home without provocation, and she shot him. She moved for a new trial on the basis that the trial court erroneously failed to instruct the jury that one unlawfully attacked in her own home has no duty to retreat. The instruction she requested provided:

One unlawfully attacked in his own home or on his own premises has no duty to retreat and may lawfully stand his ground and meet force with force, including deadly force, if necessary to prevent imminent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony.

The trial court did instruct the jury as follows on the duty to retreat prior to the use of deadly force:

If attacked by another, even though the attack is wrongful, he has the legal duty to retreat if by doing so he can avoid the necessity of using deadly force without increasing his own danger, but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm.

Agreeing with Bobbitt that it had reversibly erred in failing to give her requested instruction as to the privilege of nonretreat, the trial court granted her motion for new trial.

The State appealed to the First District Court of Appeal and contended that the requested instruction on the exception to duty to retreat did not apply because the victim was not an intruder. Placing much reliance on our decision in Hedges v. State, 172 So.2d 824 (Fla.1965), the district court disagreed and held that the law did not require that respondent retreat when attacked in her home prior to acting in self-defense and that the jury should have been instructed that Bobbitt had no duty to retreat. It decided that the privilege of non-retreat applies regardless of whether legal co-occupants or intruders are involved. Having determined that there was no duty on the part of Bobbitt to retreat and, therefore, that any finding by the jury regarding failure to retreat was irrelevant, the First District considered in this light whether, as a matter of law, the evidence supported the manslaughter conviction in view of Bobbitt’s plea of self-defense. It held that it did not, and it reversed the conviction and remanded with directions to discharge Bobbitt.

In our early decision of Pell v. State, 97 Fla. 650, 122 So. 110 (1929), we held that where one is not the aggressor and is violently assaulted on his own premises by a trespasser, he is not obliged to retreat but may stand his ground and use such force as necessary to save his life or to save himself from great bodily harm. Quoting from our earlier decision of Danford v. State, 53 Fla. 4, 43 So. 593 (1907), we said:

“It cannot be denied that it is the duty of a party to avoid a difficulty which he has reason to believe is imminent, if he may do so without apparently exposing himself to death or great bodily harm (Stafford v. State, 50 Fla. 134, 39 So. 106; Snelling v. State, 49 Fla. 34, 37 So. 917; Peadon v. State, 46 Fla. 124, text 135, 35 So. 204), and that whatever qualification this principle may in application have will depend upon the circumstances of each particular case. Allen v. United States, 164 U.S. 492, text 498, 17 S.Ct. 154 [41 L.Ed. 528]; Wharton on Homicide (2d Ed.) Sec. 485. For instance, a man violently assaulted in his own house or on his premises near his house is not obliged to retreat, but may stand his ground and use such force as may appear to him as a cautious and prudent man to be necessary to save his life or to save himself from great bodily harm. Allen v. United States, supra. A person whose life has been threatened is not obliged to quit his business to avoid a difficulty. Ballard v. State, 31 Fla. 266, 12 So. 865. But he cannot lie in wait for his adversary. Smith v. State, 25 Fla. 517, 6 So. 482. In cases where a combat is mutually sought, the duty of retreating seems to apply to both parties, for both being in the wrong neither can right himself without retreating. I Bishop’s New Cr. Law, Secs. 869, 870.”

Pell v. State, 122 So. at 116.

Much later in Hedges v. State, we concluded that there was no duty to retreat on the part of the defendant who, while in her home, was attacked by her paramour. Up until the time of the attack the paramour had been an invitee on the premises, not a legal co-occupant of the premises. Thereafter, his initial lawful presence in Hedges’ home was rendered unlawful by his assault upon her. We rejected the State’s contention that the privilege of nonretreat in the home is not available when the attacker “does not enter as a trespasser.” 172 So.2d at 826 (emphasis added). We were not, however, confronted with nor did we resolve the question now presented for our resolution.

Although in Watkins v. State, 197 So.2d 312 (Fla. 4th DCA 1967), the Fourth District decided that the trial court had erred in refusing to charge the jury on the doctrine of non-necessity of retreat where the defendant killed her common-law husband in the dwelling in which they both resided, it later expressly receded from this expanded version of the castle doctrine in Conner v. State. The emphasis in Conner is on the sanctity of human life. The Fourth District noted that in its original applications, the castle doctrine had in view only attacks from external aggressors. We agree with the following rationale expressed by Judge Letts, speaking for the Fourth District in Conner:

[W]e see no reason why a mother should not retreat from her son, even in her own kitchen. Such a view does not render her defenseless against a member of her family gone berserk, because the instruction on retreat ... concludes, “but a person placed in a position of imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm.”

361 So.2d at 776.

We hold that the privilege not to retreat, premised on the maxim that every man’s home is his castle which he is entitled to protect from invasion, does not apply here where both Bobbitt and her husband had equal rights to be in the “castle” and neither had the legal right to eject the other. As Judge Letts pointed out in Conner, this holding does not leave an occupant of a home defenseless against the attacks of another legal co-occupant of the premises since “a person placed in imminent danger of death or great bodily harm to himself by the wrongful attack of another has no duty to retreat if to do so would increase his own danger of death or great bodily harm.” Fla.Std.Jury Instr. (Crim.), 2d ed., p. 64. This instruction was properly given the jury in the present case.

Accordingly, we quash the decision of the district court and remand for further proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS and McDONALD, JJ., concur.

OVERTON, J., dissents with an opinion, in which BOYD, J., concurs.

OVERTON, Justice,

dissenting.

I strongly dissent. The majority opinion holds that a wife who claims that she killed her husband in self-defense in the home is not entitled to a jury instruction that she had no duty to retreat under the castle doctrine. At the same time, the opinion recognizes that the opposite is true for a woman who claims that she killed her paramour in self-defense, whom she had invited into her home, reaffirming that she is entitled to the castle doctrine jury instruction and that she had no duty to retreat before using deadly force. The opinion distinguishes the two situations upon the basis that in the first situation the assailant is a cotenant and in the second the assailant is an invitee. I would treat cotenants, other family members, and invitees the same and would hold, as to these types of antagonists, that one assailed in one’s own home has only a limited duty to retreat.

Present law is clear that a person attacked in his home by an intruder has no duty to retreat and is entitled to the “castle doctrine”/no-duty-to-retreat jury instruction. Our current criminal standard jury instructions contain the following language regarding the issue of self-defense:

In deciding whether defendant was justified in the use of force likely to cause death or great bodily harm, you must judge [her] by the circumstances by which [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of force likely to cause death or great bodily harm, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
The defendant cannot justify [her] use of force likely to cause death or great bodily harm unless [she] used every reasonable means within [her] power and consistent with [her] own safety to avoid the danger before resorting to that force.
The fact that the defendant was wrongfully attacked cannot justify [her] use of force likely to cause death or great bodily harm if by retreating [she] could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased [her] own danger to retreat, then [her] use of force likely to cause death or great bodily harm was justifiable.
If the defendant was attacked in [her] own home or on [her] own premises, [she] had no duty to retreat and had the lawful right to stand [her] ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm, if it was necessary to prevent death or great bodily harm to [herself] or another.

See Standard Jury Instruction 3.04(d) (emphasis supplied). The italicized portion of the above instruction embodies the so-called castle doctrine which the majority has ruled not applicable to respondent-wife in the instant case.

This Court has previously expressed the view that the castle doctrine is applicable when “the attacker does not enter as a trespasser” but is an invitee. Hedges v. State, 172 So.2d 824, 826 (Fla.1965). In Hedges, the woman defendant was attacked by her paramour, whom she had invited into her home. The instant majority opinion refuses to apply Hedges holding that, because the wife’s assailant was her coten-ant husband, she is not entitled to the castle doctrine instruction. This places the wife in the same position as if the altercation had occurred in a public place.

It has been a basic premise in our law that the home is a special place of protection and security. The castle doctrine emanated from this premise, and a majority of jurisdictions in this country have adopted the castle doctrine exception. In Rippie v. State, 404 So.2d 160, 161-62 (Fla. 2d DCA 1981), Judge Boardman set forth a historical background and legal basis for the doctrine, stating:

Many jurisdictions, including Florida, have expanded the “castle doctrine” to permit its use even when the attacker is not an intruder, Hedges v. State, 172 So.2d 824 (Fla.1965), and even when he is a co-occupant, Watkins v. State, 197 So.2d 312 (Fla. 4th DCA 1967). See also State v. Phillips, 38 Del. 24, 187 A. 721 (1936); State v. Leeper, 199 Iowa 432, 200 N.W. 732 (1924); People v. Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914); State v. McPherson, 114 Minn. 498, 131 N.W. 645 (1911); Thomas v. State, 583 S.W.2d 32 (Ark.1979); State v. Browning, 28 N.C.App. 376, 221 S.E.2d 375 (1976); People v. Garrett, 82 Mich.App. 178, 266 N.W.2d 458 (1978); State v. Grantham, 224 S.C. 41, 77 S.E.2d 291 (1953); Ison v. State, 252 Ala. 25, 39 So.2d 249 (1949). Judge Cardozo in the Tomlins case stated his reasoning as follows:
It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. More than 200 years ago it was said by Lord Chief Justice Hale (1 Hale’s Pleas of the Crown, 486): In case a man “is assailed in his own house, he need not flee as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary by flight.” Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home.
107 N.E. at 497. And in Jones v. State, 76 Ala. 8, 14 (1884), it was aptly inquired: “ ‘ Why ... should one retreat from his own house, when assailed by a partner or cotenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return?’
The Conner court [361 So.2d 774 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1364 (Fla.1979)], however, chose to recede from the expanded version of the “castle doctrine” it had espoused in Watkins and held that “where both the antagonist and the assailed are legal occupants of the same ‘castle,’ neither one having the legal right to eject the other, the defense of home instruction need not be given.” Conner, supra, at 776. A few other jurisdictions are in accord with Conner. See State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909); State v. Grierson, 96 N.H. 36, 69 A.2d 851 (1949); State v. Lamb, 134 N.J.Super. 575, 342 A.2d 533, aff’d, 71 N.J. 545, 366 A.2d 981 (1976); Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972).

(Emphasis supplied.) The Second District Court of Appeal in Rippie rejected the Fourth District Court of Appeal’s decision in Conner but did not fully embrace the castle doctrine. It held that, where the assailant is a cotenant in the home, there should be a limited duty to retreat. The Second District held that such a duty should not, however, mandate that the person assailed must retreat from the dwelling house proper. I agree. The Second District’s solution is more reasonable than the illogical distinction between a cotenant and an invitee adopted by the majority.

Under the majority opinion, a woman killing her paramour in her home has more protection under the law than a woman who kills her husband in her home. More difficult still to understand is the application of the majority’s rule to the situation where a mother is attacked in her home by a nineteen-year-old son. If the son is living in the home, the mother has a duty to retreat before she can use deadly force, but, if the son is not residing in the home, the mother has no duty to retreat before such force is used. This result and the majority’s rule is in fact a minority position which does not recognize the realities of life.

Human life is precious, and deadly combat should be avoided if at all possible when imminent danger to oneself can be avoided. A limited duty to retreat, however, as suggested by the Second District Court of Appeal in Rippie, is, I think, an appropriate middle ground that recognizes both the duty to retreat and the sanctity of the home. To achieve this purpose, I would adopt an additional jury instruction when the assailant in one’s home is an invitee, a cotenant, or a family member, to provide as follows:

If the defendant was attacked in [his/her] own home, or on [his/her] own premises, by a cotenant, family member, or invitee, [he/she] has a duty to retreat to the extent reasonably possible but is not required to flee [his/her] home and has the lawful right to stand [his/her] ground and meet force with force even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself/herself] or another.

This instruction would cure the artificial legal distinctions and disparate results created by the majority decision.

In disposing of the instant case, I would find that Hedges was the law at the time of the trial for invitees and cotenants and that it should have controlled. I agree with the trial judge and a unanimous district court of appeal that respondent was entitled to the castle doctrine instruction and should have a new trial. I would approve the district court decision and direct the use of the suggested limited duty-to-retreat jury instruction in the retrial.

BOYD, J., concurs.


author: LETTS, Chief Judge. PER CURIAM. ANSTEAD, Judge,

text:
    Joseph M. DONISI and City of Fort Lauderdale, Appellants, v. Randy S. TROUT and Rayann Trout, his wife, Appellees.
    No. 79-806.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied July 7, 1982.
    Hainline & Billing, P. A., Fort Lauder-dale, and Edna L. Caruso, West Palm Beach, for appellants.
    Dianne Weaver of Law Offices of Weaver & Weaver, and Nancy Little Hoffmann, Fort Lauderdale, for appellees.
   LETTS, Chief Judge.

This is an appeal from a partial summary judgment imposing upon the City of Fort Lauderdale the obligation to pay the full amount of any judgment rendered against its employee, Police Officer Joseph M. Doni-si, for negligent acts committed in the scope of his employment against fellow officer Randy S. Trout.

Although a city ordinance obligated the City to indemnify Donisi for the full amount of any judgment, the City claims that the trial court erred to the extent that the amount to be indemnified exceeded the $50,000 limitation set forth in Section 768.-28, Florida Statutes (1977). Article X, § 13 of the Florida Constitution provides that the sovereign immunity of the state may be waived only by general law. Since the power to waive the state’s immunity is vested exclusively in the Legislature, a city may not waive sovereign immunity by local law. See: Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1978); Arnold v. Shumpert, 217 So.2d 116 (Fla.1968). A municipality cannot forbid what the Legislature has expressly licensed, authorized or required, nor may it authorize what the Legislature has expressly forbidden. We, therefore, must employ a rule of strict construction against waiver of immunity beyond the statutory amount.

The Legislature has, by general law, provided for a waiver of sovereign immunity in Section 768.28, Florida Statutes (1977) and more specifically has set monetary limitations for such actions in subsection 5. Since the municipal ordinance indemnifying Donisi is a local and not general law, it cannot be employed to completely waive sovereign immunity. The limitations of liability set forth in the subsection apply to the municipality; therefore, the liability of the City is limited to $50,000.

Accordingly, the part of the summary judgment which imposed upon the City the obligation to pay the full amount of the judgment is reversed.

AFFIRMED IN PART, REVERSED IN PART.

ANSTEAD and HURLEY, JJ., concur.

ON REHEARING

PER CURIAM.

The motion for rehearing and clarification is hereby denied.

LETTS, C. J., and HURLEY, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I would sua sponte grant rehearing and dismiss this appeal. The order in issue did not establish liability against the city since the city employee’s liability to his injured colleague had not yet been established. Under these circumstances I do not believe Florida Rules of Appellate Procedure 9.130(a)(3)(C)(iv) authorizes review.

      . (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000 as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974.


text:
    Michael GETTER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1751.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Michael Getter, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Appeal dismissed.


text:
    Press WIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1124.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1982.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Griffin v. State, 414 So.2d 1025 (1982) (7 FLW 179); Masters v. State, 344 So.2d 616 (Fla. 1st DCA) cert. denied 352 So.2d 173 (Fla.1977).

ANSTEAD, HERSEY and HURLEY, JJ., concur.


text:
    Jimmie Lee CROWDER and Samuel M. Spatzer, P. A., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 81-1524.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Rehearing Denied July 14, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Robert L. Blake, Asst. County Atty., for appellee.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The lien of the hospital is intended to be effective for its full amount (subject only to the right to question the propriety of the charges comprising the lien) against the proceeds of a judgment or settlement in favor of the patient, Dade County v. Perez, 237 So.2d 781 (Fla. 3d DCA 1970); Dade County v. Bodie, 237 So.2d 553 (Fla. 3d DCA 1970), and may not, accordingly, be impaired or diminished by the amount of attorneys’ fees which may be due the patient’s counsel, Public Health Trust of Dade County v. O’Neal, 348 So.2d 377 (Fla. 3d DCA 1977), even if, as here, the judgment in favor of the patient against the tort-feasor and his insurer resulted from an action brought by the patient’s counsel.

Affirmed.


author: FERGUSON, Judge. PER CURIAM.

text:
    UNISTAR CORPORATION, Appellant, v. Malcolm CHILD, Harry Solom, Harold Doan and Jeff Francis, Appellees.
    No. 82-287.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    On Rehearing June 29, 1982.
    Carlton, Fields, Ward, Emmanuel, Smith & Cutler and Peter J. Winders and Donald E. Hemke, Tampa, for appellant.
    Morton R. Goudiss and Donna R. Blau-stein, Miami Beach, Harold Kassewitz, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON, and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is from an order denying Unistar’s motion for preliminary injunction by which it sought to prevent former employees from contacting and selling to its customers. The trial court denied injunc-tive relief. We reverse.

The undisputed facts presented on the motion for preliminary injunction are as follows: Unistar is in the business of selling investment grade diamonds and gemstones through “financial planners” to their clients. Over a three-year period Unistar compiled a list of some 4,200 financial planners who would be interested in selling diamonds. The list was compiled after screening some 12,000 known planners. Of that 4,200 known planners who would be interested, 1,850 were signed by Unistar as dealers. The cost to Unistar to distill the long list of financial planners down to the 1,850 who were signed as dealers was $800,-000.00. The $800,000.00 in expenses was incurred in mailing solicitations, advertising in various magazines, newspapers and trade journals, setting up information booths at conventions, conducting training programs and seminars for prospective dealers — all over a period of three years from 1978 to 1981. Of those 1,850 signed-on dealers, only two hundred and seventy-four (274) actually sold Unistar’s diamonds in the eighteen-month period preceding commencement of this lawsuit. Eighteen of those dealers generated 43% of all of Unistar’s sales.

Appellees, all former employees of Unis-tar, quit their employment between November 10, 1981 and December 2, 1981 and began a competing business contacting and selling to Unistar’s customers. Between November, 1981 and January, 1982 Unis-tar’s sales fell approximately 84% from $440,000.00 to $70,000.00 per month. Ap-pellees do not deny that their customer list is essentially the same list acquired and used by them while in Unistar’s employ.

Appellees contend that Unistar is not entitled to a preliminary injunction because it failed to establish that there is a substantial likelihood of prevailing on the merits. They argue (1) the customer listings are available to the public and are not trade secrets, (2) Unistar’s agreements with their dealers are terminable at will so there can be no action for interference with a contractual relationship, (3) in the absence of a written contract with anti-compete covenants appellees cannot be enjoined from calling on Unistar’s customers, (4) there is no evidence that irreparable harm will result if injunctive relief is not granted.

The uncontroverted testimony before the trial court is that the listing of 1,850 financial planners who became Unis-tar’s dealers are indeed the distillation of a larger list of financial planners, reflecting considerable effort, knowledge, time, and expense on the part of the plaintiff. The customer lists were periodically updated and when the new list was provided the old list was destroyed. The marketing representatives were instructed to keep the computer lists at their desks and not take them out of the office. These listings qualify as trade secrets, are the property of the employer, and cannot be used by the former employee for his own benefit. Erik Electric Company, Inc. v. Elliot, 375 So.2d 1136 (Fla. 3d DCA 1979). The lack of any express agreement on the part of the employee not to disclose a trade secret is not significant. The law will import into every contract of employment a prohibition against the use of a trade secret by the employee for his own benefit, to the detriment of his employer, if the secret was acquired by the employee in the course of his employment. Town & Country House & Homes Service, Inc. v. Evans, 150 Conn. 314, 189 A.2d 390 (1963).

The general rule is that an action will lie where a party tortiously interferes with a contract terminable at will. Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (1887); Mays v. Stratton, 183 So.2d 43 (Fla. 1st DCA 1966). See also Truax v. Raich, 239 U.S. 33, 36, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915). The cases relied upon by appellees, Wackenhut Corporation v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980) and Lake Gateway Motor Inn, Inc. v. Matt's Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979), stand for the rule that a showing of an intentional and unjustified interference with an existing business relationship which causes damage to the plaintiff establishes a prima facie case, and that the burden then shifts to the defendant to justify that interference. If the defendant can prove that the interference was lawful competition — a privilege which the courts recognize when the contract is terminable at will — the defendant will not be found to have committed the tort of wrongful business interference. See W. Prosser, Law of Torts, § 129 (4th ed. 1971) at pp. 932, 946 and Insurance Field Services, Inc. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1980).

Just as the lack of an agreement not to disclose a trade secret is not critical on the question of whether a plaintiff may enjoin its infringement, Town & Country House & Homes Service, Inc., supra, the lack of a written agreement not to compete does not prevent the court from enjoining unjustified interference with a business relationship if, on the facts, injunction is an appropriate remedy. See Azar v. Lehigh Corporation, 364 So.2d 860 (Fla. 2d DCA 1978); Paul’s Drugs, Inc. v. Southern Bell Telephone and Telegraph Co., 175 So.2d 203 (Fla. 3d DCA 1965).

Lastly, we think appellant has made a prima facie showing of irreparable injury. Even if positive proof of an injury did not appear from the record, such irreparable harm could be presumed and need not be alleged or proved in a case involving wrongful interference with a business relationship. Sentry Insurance v. Dunn, 411 So.2d 336 (Fla. 5th DCA 1982).

The order appealed from makes no findings of facts. On review of the record before us, with the significant facts undisputed, we hold that denial of a preliminary injunction was an abuse of discretion.

Reversed and remanded with instructions to grant the preliminary injunction.

Before HUBBART, C. J., and BARK-DULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON REHEARING EN BANC

PER CURIAM.

On the question whether an action will lie where a party tortiously interferes with a contract terminable at will, we recede from the panel decision in A.R.E.E.A., Inc. v. Goldstein, 411 So.2d 310 (Fla. 3d DCA 1982) and adopt the decision of the panel in this case, filed May 4,1982, as the opinion of the en banc court.

      . See A.R.E.E.A., Inc. v. Goldstein, 411 So.2d 310 (Fla. 3d DCA 1982) holding to the contrary, which by separate opinion, this writer rejected as a correct statement of law.


author: GLICKSTEIN, Judge.

text:
    B. M. Z. CORPORATION, Appellant, v. CITY OF OAKLAND PARK, Appellee.
    No. 81-1774.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Rehearings Denied June 25, 1982.

      Marion E. Sibley of Sibley, Giblin, Leven-son & Glaser, Miami Beach, and Zamer & Holmes, Fort Lauderdale, for appellant.
    Lewis D. Haines, II, City Atty., and Gordon G. Cooper, Asst. City Atty., Oakland Park, for appellee.
   GLICKSTEIN, Judge.

This is the second time we have been asked by appellant, the owner of a nightclub located within the City of Oakland Park, to review a non-final order in its action against the City.

Appellant presently contends the trial court erred in dissolving the injunction it had previously entered upon our mandate in the earlier appeal. It argues the injunction should not have been dissolved because Ordinance 0-79-29, which rolled back the closing hours of nightclubs and showclubs from 4 a. m. to 2 a. m. six days of the week and from 4:00 a. m. to 3 a. m. on Sundays, was invalid for two additional reasons not discussed in our earlier decision; namely, (1) that an illegal effective date was included in the ordinance, and (2) that its enactment was the result of a violation of section 286.011, Florida Statutes (1979), the so-called “Sunshine Law.”

In support of its first argument, appellant refers us to article II, section 19 of the City of Oakland Park’s Charter, which states that “all ordinances shall become effective immediately upon signature by the Mayor.” The title of Ordinance 0-79-29, however, provides for “an effective date of October 1, 1980.” Appellant argues that when the ordinance was read for the third time by the City Council and approved by the mayor on November 7, 1979, the law should have taken effect. The ordinance’s predetermined effective date, however, invalidated the entire enactment.

We disagree with appellant’s conclusion. First, authority supports the proposition that invalidity of the effective date of an ordinance does not render the ordinance void. Second, disregarding the fore-going authority, there is reason to conclude, as we do, that the effective date in the ordinance was valid. Section 166.041(4), Florida Statutes (1979), provides that all ordinances “shall become effective 10 days after passage or as otherwise provided therein ” (emphasis supplied). Section 166.-041(6) then states in part:

The procedure as set forth herein shall constitute a uniform method for the adoption and enactment of municipal ordinances and resolutions and shall be taken as cumulative to other methods now provided by law for adoption and enactment of municipal ordinances and resolutions.

The key word to us in section (6) is “cumulative,” which means “additional.” By selecting this word, the legislature apparently intended to give the City freedom to choose which procedure it wanted to use in selecting the effective date of its ordinances, either that set forth in its charter or that authorized by section 166.041(4). The parties to the present case agree the phrase “now provided by law” includes city charters.

Turning to appellant’s second point, section 286.011(1), Florida Statutes (1979), provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.

Appellant’s amendment to its complaint alleged that in an action brought by another establishment for relief from a roll-back ordinance, the Mayor of Oakland Park testified in his deposition as follows:

Q. Did there ever come a time when, concerning the licensed establishments now, that you discussed this matter with other members of the Council other than your regular sessions or meetings?
A. Oh, yes. It was the talk of the town for what, a year, two years. Everywhere we met with each other, on the job or anything else, we talked about it.
Q. I’m talking about other members of the City Council.
A. I talked to them individually from time to time on many things, sure. I discussed it with them.
Q. Several times over a period of a year or a year and a half?
A. It was the talk of the town for a long time.

This deposition, appellant argues, shows city officials met in secret to discuss the ordinances before they conducted public hearings on the topic of the roll-back.

The problem with appellant’s position is that there is no mention whatsoever of any other testimony by the mayor or other councilmen which would close the gaping holes in the few questions that were asked. We are at a loss to see how the trial court could have determined with whom specifically the conversations took place, or when and where they were held, or what was said by whom-to whom-and in whose presence, or what was done at or as a result of those conversations. The contrast between the facts presented by appellant to the trial court in the present case and the facts presented to the court in Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), upon which appellant relies, is the same as between black and white. In Gradison a citizen’s advisory committee established by the town council had held numerous private meetings with planners to develop an updated zoning scheme for the town. Upon presentation of the plan to the town council, public meetings and hearings were conducted. The comprehensive plan was then approved in substantially the same form as that which had been submitted.

In the present case there was no evidence before the trial court of any decision having been reached in private so that the subsequent formal action was merely a “perfunctory ratification of secret decisions,” Tolar v. School Board of Liberty County, 398 So.2d 427, 429 (Fla.1981), or a “ceremonial acceptance of secret actions.” Id. at 429. In fact, the appendices show the ordinances were considered at three, separate public meetings. At the October 3, 1979, meeting appellant’s counsel even participated in the discussion concerning Ordinance 0-79-29; for example, when he asked if the City was still planning to hold a referendum on the subject, he was told “yes.” Four other persons also spoke. At the October 17, 1979, meeting comments were invited when Ordinance 0-79-29 was to be considered on second reading. Most important, we know the council submitted the issue of changing the closing hours to the electorate, who made the final decision in favor of a rollback. This last event should put to rest any question of a Sunshine Law violation.

In sum, it appears appellant has failed to show either a clear legal right to the continuance of the injunction or a substantial likelihood of success on the merits. Accordingly, we affirm the order of the trial court dissolving the temporary injunction.

AFFIRMED.

HURLEY and DELL, JJ.., concur.

      .In B. M. Z. Corp. v. City of Oakland Park, 404 So.2d 133 (Fla. 4th DCA 1981), we reversed the trial court’s order denying appellant’s motion to temporarily enjoin appellee from enforcing roll-back ordinances. We based our decision on the fact that the ordinances were enacted in violation of section 18 of the City of Oakland Park’s Charter. Incorporated by reference in appellant’s complaint were certified copies of the minutes of the meetings at which these laws were passed. Contrary to the City Charter, the minutes failed to reflect the individual vote of each council member upon the ordinances. Following the issuance of our mandate, the City moved to dissolve the injunction which was entered upon our direction. It then successfully argued to the trial court that on July 1, 1981, it had corrected its minutes of the meetings, nunc pro tunc, pursuant to City of Hallandale v. State ex rel. Sage Corp., 326 So.2d 202 (Fla. 4th DCA 1976), to reflect the individual vote of each member of the council. The City’s subsequent action renders the point discussed in our earlier opinion moot.

      . Appellant, which also argues Ordinance No. 0-79-30 was enacted in violation of the Sunshine Law, first raised this issue by amendment to its complaint filed after our earlier decision.

      . On November 21, 1979, the City Council adopted Resolution No. R-79-119, submitting the affirmance or repeal of Ordinance No. 0-79-29 to the electorate. As Judge Downey later pointed out in Playpen South, Inc. v. City of Oakland Park, 396 So.2d 830 (Fla. 4th DCA 1981), the electorate overwhelmingly affirmed the ordinance.

      . 5 Municipal Corporations § 15-39 (McQuillin ed. 1981).

      . Black’s Law Dictionary 343 (5th ed. 1979).

      . Although we expressly rest our decision on the construction of section 166.041 and although we requested the parties to file additional briefs on questions dealing solely with our review of the order dissolving the temporary injunction, we find it difficult to see the harm occasioned appellant by the delay of the effective date until October 1, 1980, when a new license would become effective for one year. Such delay seems not only consistent with the right of a city pursuant to section 562.14, Florida Statutes (1979), to establish by ordinance the hours when alcoholic beverages can be sold but also with appellant’s rights for the balance of the license year, which ended on September 30, 1980.

      . The decision rendered by the supreme court in Gradison resulted from this court’s certification in IDS Properties, Inc. v. Town of Palm Beach, 279 So.2d 353 (Fla. 4th DCA 1973), of a question of great public importance; to wit, whether a zoning ordinance adopted after a public hearing is rendered invalid because of the nonpublic activities of a citizen’s planning committee established by the town. In answering the question affirmatively, the supreme court expressly approved the decision of this court, which had held the ordinance void.

      . We observe that by the issuance of our mandate, the stay order entered by the trial court in this case, which has come to our attention by virtue of our consideration of Playpen South, Inc. v. City of Oakland Park, Case No. 82-204, will terminate, placing all three of the establishments whose appeals are concluded today in the same position as to their hours of closing.