author: BOWEN, Judge.

text:
    Willie James LIDGE v. STATE.
    6 Div. 580.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Alabama Code 1975, Section 13A-8-41 (Amended 1977). Sentence was life imprisonment without parole under the Alabama Habitual Felony Offender Act. Section 13A-5-9.

I

The defendant argues that the evidence is insufficient to support the verdict of robbery in the first degree because the State did not prove that the pistol used by the defendant was loaded. A similar issue was presented but not decided in Harris v. State, 398 So.2d 777 (Ala.Cr.App.), cert. denied, 398 So.2d 780 (Ala.1981).

On January 28, 1980, two men robbed Wilma Polk at the Junior Food Mart. During the robbery, she was told “not to try anything” and she would not get hurt. She testified that the defendant pointed a pistol “right at” her and that she was scared. The defendant and his two companions were arrested while attempting to flee from the scene of the crime in an automobile. The police found a .32 caliber silver revolver on the defendant. At trial, the State failed to introduce any evidence that this weapon was loaded during the commission of the robbery or at the time it was recovered from the defendant. The only testimony on whether the pistol was loaded or unloaded came from the officer who recovered the weapon from the defendant. That officer testified that the pistol was in “substantially the same condition today as the day .. . (he) took it off” the defendant. Since the pistol was not loaded at trial, the defendant argues that the evidence shows that it was not loaded when the robbery occurred, and that, consequently, the unloaded pistol was not a “deadly weapon” as charged in the indictment. The defendant did not present any evidence in his defense.

The fatal flaw in the defendant’s argument is that the evidence tending to indicate that the pistol was not loaded when it was removed from the defendant shortly after he used it in the robbery does not necessarily indicate that the weapon was not loaded during the robbery. Under the statutory presumption created by Section 13A-8-41(b), the use of a firearm is prima facie evidence of the use of a deadly weapon or dangerous instrument and the State need not prove that the weapon was loaded, at least, in the absence of any evidence to the contrary. Under the facts of this case, the question of whether or not the pistol was loaded was a question for the jury.

Additionally, we note that neither the definition of robbery in the first degree, Section 13A-8-41, nor the definition of a “deadly weapon”, Section 13A — 1—2(11), requires that the firearm be loaded. Compare New York Penal Law, Sections 160.10, 160.15 (Amended 1969). The commentary following the statutes defining the three degrees of robbery states: “The basic theory of this article (robbery) is to protect the citizen from fear for his or another’s health and safety.” This lends support to the contention that a firearm, even though not loaded, may still constitute a deadly weapon.

The majority of courts which have considered this issue have ruled adversely to the defendant’s contention. “The great weight of authority holds that an unloaded pistol, not used as a bludgeon, is nevertheless a dangerous or deadly weapon for armed-robbery purposes.” LaFave & Scott, Criminal Law, p. 703 (1977); Note, An Unloaded Or Unworkable Pistol As A Dangerous Weapon When Used In A Robbery, 32 La.L.Rev. 158 (1971). See also A.L.I. Model Penal Code, Section 222.1 at p. 117 (1980); Annot., 79 A.L.R. 1206, Section 7 (1931); Annot., 89 A.L.R.3d 1006 (1977). “Several courts have recognized that one can be convicted of robbery by means of a dangerous or deadly weapon, notwithstanding the fact that the gun allegedly used was unloaded, but there is some authority to the contrary.” 67 Am.Jur.2d, Robbery, Section 5 (1961).

II

The defendant argues that the trial judge erred in not charging the jury on the lesser offenses of robbery in the second and third degrees.

Robbery in the second degree is not a lesser included offense of robbery in the first degree unless the robber is aided by another person actually present and one participant is armed with a deadly weapon or dangerous instrument, or causes physical injury to another. Alabama Code 1975, Sections 13A-8-41, 13A-8-42.

However, this issue has not been properly preserved for review since the defendant did not submit a written requested charge concerning the omitted matter. Yates v. State, 390 So.2d 32, 35 (Ala.Cr.App.1980); Hall v. State, 375 So.2d 536 (Ala.Cr.App.1979). The proper way to raise the question of the- failure of a trial judge to charge on a lesser included offense is by a written requested charge, not by an objection or exception to the court’s oral charge. Ciervo v. State, 342 So.2d 394 (Ala.Cr.App.), cert. denied, Ex parte Ciervo, 342 So.2d 403 (Ala.1976); Posey v. State, 337 So.2d 113 (Ala.Cr.App.1976); Long v. State, 24 Ala.App. 571, 139 So. 113 (1932). Additionally, defense counsel must object to the failure of the trial judge to give his written requested instructions. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981).

Ill

The sentence of life without parole imposed on the defendant under the Alabama Habitual Felony Offender Statute does not constitute cruel and unusual punishment. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). The constitutionality of the statute has been upheld against arguments that it violates the prohibition against cruel and unusual punishment because it retroactively imposes additional punishment for offenses previously committed, Serritt v. State, 401 So.2d 248, 251 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.1981); because the court sentencing the defendant could not consider the nature of the underlying felonies or the particulars of an individual case, Edwards v. State, 399 So.2d 946, 949 (Ala.Cr.App.1981); because the act fails to require that a defendant has been previously confined in the penitentiary before being adjudged an habitual offender, Johnson v. State, 398 So.2d 393, 399 (Ala.Cr.App.1981); or because of the length of the particular term of imprisonment to which a defendant has been sentenced under the act. Watson v. State, 392 So.2d 1274, 1275, 1277 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981) (15 years); Murphy v. State, 399 So.2d 340, 341, 346 (Ala.Cr.App.), cert. denied, 399 So.2d 347 (Ala.1981) (life); Holley v. State, 397 So.2d 211, 212 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981) (life without parole).

The fact that a sentence of life without parole removes all hope of rehabilitation does not render such a sentence unconstitutionally arbitrary and oppressive. “(T)here is nothing in the Constitution that says that ‘rehabilitation’ is the sole permissible goal of incarceration, and we (the Supreme Court of the United States) have only recently stated that retribution is equally permissible. See Gregg v. Georgia, 428 U.S. 153, 184, n. 30, 96 S.Ct. 2909, 2930, n. 30, 49 L.Ed.2d 859 (1976).” Atiyeh v. Capps, 449 U.S. 1312, 101 S.Ct. 829, 830, 66 L.Ed.2d 785 (1981).

Included in the “general purposes” of Alabama’s new Criminal Code are:

“(5) To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted and their confinement when required in the interests of public protection; and
“(6) To prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.”
Alabama Code 1975, Section 13A-l-3(5) & (6) (Amended 1977).

We find no conflict between this section and the habitual offender act. Atiyeh, supra; Rummel, supra; Gregg, supra. The primary goals of our recidivist statute are “to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.” Rummel, 100 S.Ct. at 1144.

IV

There is no merit to the defendant’s argument that the trial judge failed to determine the nature of one of the prior offenses in sentencing the defendant as an habitual offender. The judgment entry shows that the defendant was convicted of grand larceny in March of 1973 and was sentenced to three years’ imprisonment. This record does not state the value of the property stolen. The defendant argues that since no value is shown, it cannot be determined whether the crime would amount to a felony under the new Criminal Code.

Grand larceny was a felony under the old criminal code. Alabama Code, Title 14, Section 331 (Recompiled 1958), defined grand larceny and fixed punishment at not less than one nor more than 10 years’ imprisonment in the penitentiary. The 1958 Code defined a felony as “a public offense which may be punished by death, or by imprisonment in the penitentiary.” Title 1, Section 7. When punishment consists or may consist of a penitentiary sentence, the offense is a felony. Lashley v. State, 236 Ala. 1, 180 So. 717 (1938). The three year sentence of imprisonment in the penitentiary would bring grand larceny within the definition of a felony under our new criminal code. Section 13A-l-2(4) provides that a felony is “(a)n offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title.”

Felony convictions which occurred before the effective date of the Habitual Felony Offender Act are to be considered by the court in determining whether the defendant is an habitual offender and the proper sentence. Davis v. State, 401 So.2d 218, 220 (Ala.Cr.App.), cert. denied, 401 So.2d 221 (Ala.1981). All felony convictions which occurred before the commission of the present felony are to be considered “regardless of their origin.” Watson v. State, 392 So.2d 1274, 1279 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). See also James v. State, 405 So.2d 71, 74 (Ala.Cr.App.1981).

This interpretation is strengthened by Rule 6 of the Alabama Rules of Criminal Procedure — Temporary Rules promulgated by the Supreme Court of Alabama pursuant to its rulemaking power. Section 12-2-7(4). Rule 6(b)(3)(iv) A.R.C.P., provides that “(a)ny conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under ... Section 13A-1-2(4), ... or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980.”

In Wilson v. State, 371 So.2d 932 (Ala.Cr.App.1978), affirmed, 371 So.2d 943 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1133 (1980), remanded, 405 So.2d 696 (Ala.1981), reversed, 405 So.2d 696 (Ala.Cr.App.1981), the defendant was indicted and convicted for the capital offense described as any murder committed by a defendant who has been convicted of murder in the first or second degree in the twenty years preceding the crime. There, we held:

“(U)nless provided by statute, in order to authorize the infliction of a more severe penalty on conviction for a second or a subsequent offense, it is not necessary that the first conviction, or other prior convictions relied on, should have occurred subsequent to the enactment of the statute.” Wilson, 371 So.2d at 941.

Here, the trial judge properly adjudged the defendant an habitual offender even though the three prior convictions occurred before the effective date of the Habitual Felony Offender Statute.

V

The defendant alleges that the State did not properly prove his three prior convictions because the clerk of the circuit court did not testify concerning the care, custody and control of the minute book and the copies which she prepared. The defendant further alleges that the use of these judgment entries, without the testimony of the circuit clerk, denied him his due process rights of confrontation and cross examination.

The defendant’s three prior convictions from Montgomery County were proved through the use of certified copies of the minute entries showing the prior convictions. “The proper method of proving the prior conviction is not through the testimony of the circuit clerk, but rather by a certified copy of the minute entry showing the prior conviction.” Highsmith v. State, 55 Ala.App. 272, 274, 314 So.2d 874 (1975). See also Ray v. State, 398 So.2d 774, 776 (Ala.Cr.App.), cert. denied, 398 So.2d 777 (Ala.1981); Thomas v. State, 395 So.2d 1105, 1108-09 (Ala.Cr.App.1981).

Alabama Code 1975, Section 12-21-35(a), provides that

“(a)ll transcripts of books or papers, or parts thereof, required by law to be kept in the office, custody or control of any public officer, agent, servant or employee of any . . . county of the State of Alabama ..., when certified by the proper custodian thereof, must be received in evidence in all court, ...”

The judgment entries showing the defendant’s prior convictions were properly admitted pursuant to this statute because they were properly certified. Alston v. State, 248 Ala. 163, 165, 26 So.2d 877 (1946) (certified copy of transcript of conviction and sentence); Ellis v. State, 244 Ala. 79, 85, 11 So.2d 861 (1943) (certified copy of trial docket sheet). “A ‘certified copy’ of a public record is one that is signed and certified as a true copy by the officer who has lawful custody of the original.” C. Gamble, McEi-roy’s Alabama Evidence, Section 218.01 (3rd ed. 1977), cited with approval in Yelton v. State, 294 Ala. 340, 344, 317 So.2d 331 (1974).

The purpose behind this statute is clearly stated in Macon County Lumber Co. v. Jones, 215 Ala. 157, 158, 110 So. 1 (1926).

“The policy of the statute, as well as the common law, admitting certified copies of public records as prima facie evidence, is to avoid the necessity of removing original records from their proper custody and of requiring the attendance of public officers and employees as witnesses in the courts. The same policy excuses the calling of witnesses to prove the identity of the custodian or his signature. The readiness with which parties may investigate the contents of public records, as well as the name of the lawful custodian thereof (and the court may advise its judicial knowledge on such matters), furnishes such safeguard against fraud and forgery that a transcript, in due form, purporting to come from the proper office and to be certified by the person having the lawful custody thereof, is admissible without further proof. Metropolitan Life Ins. Co. v. Parks, 210 Ala. 261, 97 So. 788; 3 Wigmore on Ev., Sections 1636, 1679(a); 22 C.J. p. 838, Section 978.”

Although certified copies of records may not be used to prove the acts constituting the offense itself without calling any witnesses at all, Lowery v. State, 55 Ala.App. 514, 520-21, 317 So.2d 365, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975), the admission of a properly authenticated record or document does not necessarily infringe the constitutional guaranty or right of confrontation.

“The objection of the admission of the certified copy of the stub, based on the ground that it is in violation of the defendant’s constitutional right to be confronted with the witnesses against him, is not well taken. The transcript was of a record required by law to be kept in the office of a sworn public officer, and by the terms of the statute (section 3983), when properly certified, such a transcript ‘must be received in evidence in all courts.’ Stanley v. State, 88 Ala. 154, 7 South. 273. Upon wise principles of policy, expediency, or necessity, it is held that there are exceptions to the general rule; and that it does not contravene the several clauses of the various state Constitutions, or that of the federal Government to the effect that the accused has the right to be confronted by the witnesses against him, to admit dying declarations (Green v. State, 66 Ala. 40, 41 Am.Rep. 744), the evidence of witnesses on a former trial that have since died, become insane, or left the state indefinitely (South v. State, 86 Ala. 617, 6 South. 52; Lowe v. State, 86 Ala. 47, 5 South. 435; Thompson v. State, 106 Ala. 67, 17 South. 512), or proof of facts essentially in their nature documentary by the introduction of the original record, or a copy officially authenticated, when such records are made competent evidence by statute. 12 Cyc. p. 543; Hawes v. State, 88 Ala. 37, 7 South. 302; Reid v. State, 168 Ala. 118, 53 South. 254.” Woodward v. State, 5 Ala. App. 202, 206, 59 So. 688 (1912).

See also Seay v. State, 390 So.2d 11, 14 (Ala.1980) (psychiatric diagnostic records); Neal v. State, 372 So.2d 1331, 1343 (Ala.Cr.App.), appeal after remand, 372 So.2d 1348 (Ala.Cr.App.1978), cert. denied, 372 So.2d 1348 (Ala.1979) (business record); Griggs v. State, 37 Ala.App. 605, 609, 73 So.2d 382 (1954) (wagering tax stamp); Todd v. State, 13 Ala.App. 301, 304, 69 So. 325 (1915) (official transcript of testimony on murder trial in which perjury alleged to have been committed).

Upon these authorities, we find no error in the admission of the certified copies of the defendant’s prior convictions. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . For an excellent treatment of the Habitual Felony Offender Act see E. Carnes, Assistant Attorney General, Outline For C.L.E. Criminal Code Seminar on November 5 and 6, 1981 (Unpublished).

      . A prior conviction may be proved through the use of a certified copy of a trial docket sheet only in Jefferson County. Thomas v. State, 395 So.2d 1105, 1108 (Ala.Cr.App.1981).


source: Caselaw Access Project

author: ADAMS, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    Ex Parte Willie James LIDGE. (Re Willie James Lidge v. State of Alabama).
    81-714.
    Supreme Court of Alabama.
    Sept. 17, 1982.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs specially with opinion.

TORBERT, Chief Justice

(concurring specially):

I concur in the denial of the writ, 419 So.2d 610, but I would point out that our denial of the writ should not be understood as an approval of the interpretation the Court of Criminal Appeals has given Rule 6(b)(3)(iv), Temporary Rules of Criminal Procedure.


author: ALDERMAN, Justice. SUNDBERG, Chief Justice,

text:
    R. M. P., a child, Petitioner, v. Carlton JONES, Superintendent, Duval Regional Detention Center, Respondent.
    No. 60223.
    Supreme Court of Florida.
    April 29, 1982.
    Rehearing Denied Aug. 31, 1982.
    Louis 0. Frost, Jr., Public Defender, William P. White, III, Chief Asst. Public Defender and Claudia T. Wright, Asst. Public Defender, Jacksonville, for petitioner.
    Paul C. Doyle, Dist. IV Counsel and Leo-J. Stellwagen, Asst. Dist. IV Counsel, for State of Fla., Dept, of Health and Rehabilitative Services, Jacksonville, for respondent.

      Jim Smith, Atty. Gen., and Jann J. Farrell, Asst. Atty. Gen., Tallahassee, for State of Fla., amicus curiae.
    Albert J. Hadeed, of Southern Legal Counsel, Inc., Gainesville, and Harry F. Swanger, of National Juvenile Law Center, Inc., St. Louis, Mo., for Florida Center For Children and Youth, Inc, amicus curiae.
   ALDERMAN, Justice.

We review an order of the District Court of Appeal, First District, reported at 392 So.2d 301 (Fla. 1st DCA 1980), in which, pursuant to article V, section 3(b)(4), Florida Constitution (1980), the following question of great public importance was certified to this Court:

Whether a juvenile court may impose conditions upon a dependent child, find the violation of those conditions constitutes contempt of court, and place the child in secure detention in the custody of the Department of Health and Rehabilitative Services for a limited time?

We answer each part of this question in the affirmative and approve the decision of the district court.

In February 1980, R. M. P., a fifteen-year-old girl, was adjudicated a dependent child. In October 1980, she was detained at the Duval Regional Detention Center, charged with being a runaway. After a detention review on November 4, 1980, the juvenile court reaffirmed her dependency and ordered that she be placed in the temporary care and control of her mother. The court’s order provided that she meet eight specified conditions, including that she not run away from home again and that she not have any contact with another child, Michelle. The order also stated that any breach of the conditions would lead to contempt proceedings. She continued to associate with Michelle, and within a week both girls had once again run away from home. Based on the breach, of two of the court’s conditions, an order to show cause alleging indirect criminal contempt of court was entered on November 14, 1980. After a hearing on the order, she was found guilty of contempt of court as to each of the two conditions and subsequently was sentenced to serve twenty days in secure detention for each of the two counts. After the juvenile court denied her motion to vacate judgment, she filed a petition for writ of habeas corpus with the First District Court of Appeal. The district court denied her petition.

Petitioner R. M. P. contends that the powers of disposition of a dependent child set forth in section 39.41(1), Florida Statutes (Supp.1980), do not authorize the juvenile court to impose conditions of behavior upon her, even though the almost identical language in section 39.11(1), Florida Statutes (Supp.1980), authorizes the court to place conditions of behavior upon a delinquent child. Respondent Carlton Jones, Superintendent, Duval Regional Detention Center, agrees with R. M. P. The attorney general, on behalf of the State of Florida as amicus curiae, argues to the contrary and urges that we approve the decision of the district court. We agree with the attorney general’s interpretation of the statutory language, and we hold that the language “under such reasonable conditions as the court may direct” authorizes the court to impose reasonable conditions of behavior upon dependent as well as delinquent children. Furthermore, we find that the two conditions in question, the violation of which led to the contempt finding, were reasonable conditions to impose upon dependent child R. M. P. Thus, as to the conditions imposed, the order issued by the juvenile court is supported by statutory authority and is a valid order.

Since we find a valid court order and since R. M. P. does not dispute the juvenile court’s finding that she disobeyed the order, we hold that the court is authorized to invoke its inherent contempt power against R. M. P. for her willful refusal to obey the order. It has long been the rule in Florida that, courts have inherent contempt power to punish for violation of a valid court order. Ducksworth v. Boyer, 125 So.2d 844 (Fla.1960); Ex parte Earman, 85 Fla. 297, 95 So. 755 (1923). In addition to inherent contempt power, Florida courts have the statutory power to punish for contempt. § 38.22, Fla.Stat. (1979).

Although R. M. P. does not question the court’s power to punish for contempt, she argues that such power must be used within the constraints of chapter 39 (Florida Juvenile Justice Act) when dealing with a dependent child. She contends that the act committed by her (running away) which led to the contempt finding was an act of dependency under the provisions of chapter 39 and cannot support a finding of criminal contempt. Additionally, she contends that the holding in J. M. J. v. State, 389 So.2d 1208 (Fla. 1st DCA 1980), supports her argument.

In J. M. J., the First District held invalid a commitment order adjudicating a child delinquent for violating the probation terms of a previous order prohibiting truant and runaway behavior. In that case, however, it was clear that the trial court intended to employ “chapter 39 mechanisms” to deal with J. M. J.’s behavior, and the First District expressly left open the question of whether the court could use its inherent contempt power to punish a juvenile outside the ambit of the juvenile statutes. 389 So.2d at 1210, n. 4.

In the present case, the juvenile court indicated that it was using its inherent contempt power to find R. M. P. guilty of indirect criminal contempt. Although the court had the option of proceeding under the provisions of chapter 39, it did not, and we find that the court did not abuse its authority by using its inherent contempt power to punish a dependent child for disobeying a valid court order.

Finally, we hold that a dependent child who has been adjudged guilty of indirect criminal contempt under the court’s inherent contempt power can be placed in secure detention in the custody of the Department of Health and Rehabilitative Services. R. M. P. contends that chapter 39 prohibits placing her in secure detention as a “status offender” (runaway). The juvenile court, however, sentenced her not for being a runaway but for being a criminal contemnor. Since the court did not find her in contempt under chapter 39, the punishment options available to the court are not limited by those in chapter 39.

Accordingly, we approve the decision of the district court.

It is so ordered.

ADKINS, BOYD, OVERTON and MCDONALD, JJ., concur.

SUNDBERG, C. J., dissents with an opinion.

SUNDBERG, Chief Justice,

dissenting.

I must respectfully dissent. Although I agree that a juvenile court may impose reasonable conditions upon a dependent child and find the violation of those conditions constitutes contempt of court, I cannot accept the placement of a dependent child in secure detention as a sanction for contempt.

It seems crystal clear to me that the public policy of this state as enunciated by the legislature in chapter 39, Florida Statutes, eschews the placement of “status offenders” in secure detention. This appears to me to be a sound policy which comports with our concepts of substantive due process and fairness. We do not confine individuals for non-criminal conduct or status except in limited instances where the mental condition of the individuals makes them a threat to themselves or others.

Although I do not condone willful violation of legitimate court orders, nevertheless, I am equally unwilling to approve secure detention as a sanction for juvenile status offenders. To justify such a sanction under the principle of inherent judicial authority results, I believe, in a subversion of the policy of chapter 39 which comprehensively deals with the juvenile justice system.

      . Section 39.41(1) in pertinent part provides:
      (1) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to:
      (a) Place the child under the protective supervision of an authorized agent of the department, either in the child’s own home or, the prospective custodian being willing, in the home of a relative of the child or in some other suitable place under such reasonable conditions as the court may direct. (Emphasis added.)

      . Section 39.11(1) in pertinent part provides:
      (1) When any child shall be adjudicated by the court to have committed a delinquent act, the court having jurisdiction of the child shall have the power, by order in which is stated the facts upon which a determination of a sanction and rehabilitative program was made at the disposition hearing, to:
      (a) Place the child in a community control program under the supervision of an authorized agent of the department or any other person or agency specifically authorized and appointed by the court, either in the child’s own home or, if the prospective custodian is willing, in the home of a relative of the child or in some other suitable place under such reasonable conditions as the court may direct. (Emphasis added.)

      . Section 38.22 provides:
      Every court may punish contempts against it whether such contempts be direct, indirect, or constructive, and in any such proceeding the court shall proceed to hear and determine all questions of law and fact.

      . We note that in a juvenile dependency proceeding, the child may not necessarily be represented by counsel. However, in the situation where indirect contempt proceedings become necessary, the juvenile is entitled to be represented by counsel. See Fla.R.Crim.P. 3.840 (Indirect Criminal Contempt); Fla.R.Juv.P. 8.280 (Indirect Contempt).


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Edgar Leon LOWERY, Respondent.
    No. 58501.
    Supreme Court of Florida.
    July 29, 1982.
    Rehearing Denied Oct. 5, 1982.

      Jim Smith, Atty. Gen., and Max Rud-mann, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for respondent.
   ADKINS, Justice.

By petition for review we have before us a decision of the Fourth District Court of Appeal, Lowery v. State, 375 So.2d 1075 (Fla. 4th DCA 1979), which allegedly conflicts with a decision of this Court, State v. Jefferson, 347 So.2d 427 (Fla.1977). Jurisdiction is pursuant to article V, section 3(b)(3), Florida Constitution.

The question presented is very specific: does the felony-murder statute, section 782.04(3), Florida Statutes (1975), contemplate the prosecution of an individual who aids and abets the commission of an underlying felony, but who is not present during the commission of the felony or murder, and the murder is committed by one engaged in the perpetration of the felony? Section 782.04(3) provides that:

When a person is killed in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate, such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, ...

The facts of this case are straightforward. Lowery and Greg Sizemore planned the robbery of Leroy Moss. Sizemore committed the robbery during which Moss was killed. None of the evidence produced at trial placed Lowery at the scene of the crimes during their commission, however, the jury found him guilty of second-degree murder and the court sentenced him to life imprisonment. The Fourth District Court of Appeal originally affirmed the conviction, but on rehearing reversed itself, adopting the position and analysis of the Second District Court of Appeal in Hite v. State, 364 So.2d 771 (Fla. 2d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979).

In Hite, the Second District Court of Appeal held that “for a person to be guilty of second degree felony-murder, he must have been personally present at the commission of one of the enumerated violent felonies and the killing must have been committed by someone other than him or one of his co-felons.” 364 So.2d at 773. This is not entirely correct. The court’s interpretation of the language “by a person other than the person engaged in the perpetration of or in the attempt to perpetrate, such felony ...” is sound. The plain meaning of the words is evident — that the person who commits the killing cannot be charged as a principal in the commission of the felony, but rather someone else such as the victim, a bystander, a law enforcement officer, or anyone other than the one engaged in the perpetration of the underlying felony.

The court’s analysis is incorrect with respect to the clause “the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, ...” The court held that this language restricted liability for second-degree murder to those principals, aiders, or abettors who are personally present at the commission of the felony. This is incorrect. In Jefferson v. State we held that “[o]nly an accessory before the fact who was not personally present during the commission of the underlying felony can be found guilty of second-degree murder under the applicable statute.” 347 So.2d at 429. (Emphasis added.) We reached the same conclusion in Adams v. State, 341 So.2d 765, 768-769 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977), when we held that

[U]nder the 1972 homicide statute an individual who personally kills another during the perpetration [of] or attempt to perpetrate one of the enumerated felonies is guilty of first degree murder. In such circumstances, the statutory scheme does not allow for a conviction of second degree murder. Moreover, the felon’s liability for first degree murder extends to all of his co-felons who are personally present. As perpetrators of the underlying felony, they are principals in the homicide. In Florida, as in the majority of jurisdictions, the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felons. Only if the felon is an accessory before the fact and not personally present does liability attach under the second degree murder provision of the applicable statute in the instant case.

(Emphasis added, footnote omitted.) See also n. 8, id.

We have most recently dealt with this matter in the case of Enmund v. State, 399 So.2d 1362 (Fla.1981), rev’d on other grounds, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

We conclude, therefore, that if the appellant’s conduct that the jury could have found from the evidence made him an accessory before the fact to the underlying felony of robbery, then his contention that the highest offense for which he may be convicted is second-degree murder must be accepted. If, on the other hand, the jury could have concluded from the evidence that the appellant was a principal of the first or second degree in the crime of robbery, then his contention is without merit and we must hold that the evidence was sufficient for a verdict of guilty of murder in the first degree.

399 So.2d at 1369. All persons participating in a crime are principals of the first or second degree. The actual perpetrator is a principal of the first degree. A person who does not commit the crime with his own hands but is present, aiding and abetting the actual perpetrator, is a principal of the second degree. Lake v. State, 100 Fla. 373, 129 So. 827 (1930). From this it is evident that the presence of a defendant at the scene of a crime is required for a verdict of' guilty of first-degree murder under the felony-murder statute. It is also evident that a verdict of guilty for second-degree felony-murder does not require the defendant’s presence.

The evidence presented at trial does not show that respondent was at the scene of the crime, so he could not be guilty of first-degree murder under section 782.04(1). The evidence did show that Greg Sizemore committed the robbery and murder. Lowery was an accessory before the fact.

Although Lowery was not personally present during the commission of the robbery, he was an accessory before the fact. Section 776.011, Florida Statutes (1971), makes an accessory before the fact to the robbery (Lowery) a principal in the first degree or a perpetrator of the robbery. During the perpetration of the robbery, Moss was killed by a person other than Lowery (the person engaged in the perpetration or attempting to perpetrate the robbery). Under the statute, he may be found guilty of murder in the second degree.

We overrule Hite v. State, to the extent that it requires presence at the scene of a crime for a person to be guilty of second-degree felony-murder.

A careful review of the record discloses no reversible error in the admission into evidence by the trial judge of respondent’s confession. Respondent was offered immunity for his testimony in the murder trial of Greg Seymour if he would be completely truthful. He was told that if he lied as to any matter, he could still be prosecuted and the statement could be used against him. Respondent then made a statement. Subsequently it was learned that respondent had lied. He was then notified that he was no longer immunized from prosecution. Respondent was advised of his rights and he waived them. He then confessed his role in the crime. Respondent testified in a proffer and before the jury that he gave the later statements (the confession) hoping the grand jury would be more lenient. He also said he gave the statements to help a friend. Respondent never claimed that the immunity he forfeited had anything to do with the subsequent statements.

We have held that only actual coercion or promises still in effect render statements inadmissible. State v. Outten, 206 So.2d 392, 396 (Fla.1968). It is clear that the prior promise of immunity was no longer in effect. Furthermore, the record in the case sub judice simply does not show promises of lenience amounting to coercion as were present in Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla.1979), and Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975), cert. denied, 328 So.2d 845 (Fla.1976).

Petitioner’s final claim that the trial judge erred by not making a specific finding of voluntariness prior to admitting the confessions into evidence lacks merit. See Peterson v. State, 382 So.2d 701 (Fla.1980).

The holding of the district court is quashed and the cause is remanded with instruction to affirm the judgment and sentence of the trial court.

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


author: ALDERMAN, Chief Justice.

text:
    CITY OF DEERFIELD BEACH, Wardell Chance, Doris Hunn, Myrle Johnson, Richard Mowry, and Lawrence Vanderwiele, Petitioners, v. Michael H. VAILLANT, Respondent.
    No. 60924.
    Supreme Court of Florida.
    July 29, 1982.
    Rehearing Denied Oct. 8, 1982.

      Andrew S. Maurodis, Deerfield Beach, for petitioners.
    Philip S. Shailer of Shailer & Purdy, Fort Lauderdale, for respondent.
   ALDERMAN, Chief Justice.

We review the decision of the District Court of Appeal, Fourth District, in City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981), which expressly conflicts with United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979). The sole issue before us is whether a final judgment of the circuit court reviewing administrative action is subject to appeal in the district court of appeal or whether this judgment is reviewable only by writ of certiora-ri. The Fourth District in the present case held that the circuit court’s order reversing a decision of the Civil Service Board was reviewable only by writ of certiorari pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B). We agree and approve the decision of the Fourth District.

Michael Vaillant was terminated as the superintendent of the Deerfield Beach Wastewater Treatment Plant by the city manager. He appealed to the Civil Service Board of the City of Deerfield Beach which, after hearing, voted to uphold his termination. He then petitioned the circuit court for review of the board’s action by certiora-ri. After examining the entire record “including hundreds of pages of proceedings and testimony taken and given before the Board,” the circuit court granted Vaillant’s petition, reversed the board’s decision, and ordered Vaillant reinstated.

The City of Deerfield Beach appealed to the Fourth District, but the district court, finding its scope of review to be limited when the circuit court has acted in its appellate capacity, treated the appeal as a petition for writ of certiorari and denied it. The district court pointed out that the controversy over which method of review is available in the district court is engendered by the use of the words “certiorari” and “appeal” synonymously with the intention of denoting a seeking out of higher review and that the type of “certiorari” sought in the circuit court here was not a discretionary review but rather was a review to which Vaillant was entitled as a matter of right. It explained that in reviewing the board’s action, the circuit court determined whether or not the board provided procedural due process, observed the essential requirements of the law, and supported its findings by substantial competent evidence. Regardless of the nomenclature, the Fourth District determined, the review sought in the circuit court was effectually an “appeal.” To establish its appropriate scope of review, the district court relied upon Florida Rule of Appellate Procedure 9.030(b)(2)(B) which provides that the cer-tiorari jurisdiction of the district court may be sought to review final orders of circuit courts acting in their review capacity. Stating that a final judgment of a circuit court acting in its review capacity is not appealable as a matter of right to a district court if it has already been directly “appealed” to a circuit court, it found inapplicable article V, section 4(b)(1), Florida Constitution, which provides in pertinent part:

District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appeala-ble to ... a circuit court.

Evaluating the circuit court’s judgment in light of its limited standard of review, the district court determined that procedural due process was afforded and that essential requirements of the law were observed.

We agree with the decision and rationale of the Fourth District in the present case. See also Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980), review denied, 399 So.2d 1140 (Fla.1981); Phipps v. Board of Adjustment, 388 So.2d 317 (Fla. 4th DCA 1980); Campbell v. Vetter, 375 So.2d 4 (Fla. 4th DCA 1979); Civil Service Board, City of Fort Lauderdale v. Carter, 363 So.2d 858 (Fla. 4th DCA 1978). As a case moves up the appellate ladder, each level of review does not become broader. As Chief Judge Letts, speaking for the court, said:

[CJommon sense dictates that no one enjoys three full repetitive reviews to,
1. a civil service board
2. a circuit court
3. a district court of appeal ....

City of Deerfield Beach v. Vaillant, 399 So.2d at 1047.

We disapprove United Teachers of Dade v. Brickell Avenue, Inc. insofar as it holds that a final judgment of the circuit court acting in its review capacity to review administrative action is appealable as a matter of right to the district court where it has already been directly “appealed” to the circuit court. Cf. Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981), wherein the Third District treated as a petition for writ of certiorari an appeal from the circuit court’s final judgment entered in a zoning matter brought to the circuit court for review.

We hold that where full review of administrative action is given in the circuit court as a matter of right, one appealing the circuit court’s judgment is not entitled to a second full review in the district court. Where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence. The district court, upon review of the circuit court’s judgment, then determines whether the circuit court afforded procedural due process and applied the correct law.

Accordingly, we approve the decision of the Fourth District.

It is so ordered.

BOYD, OVERTON, SUNDBERG, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents.


text:
    BARNETT BANK OF WEST ORLANDO, Petitioner, v. A. N. ABRAMOWITZ, Respondent.
    No. 60467.
    Supreme Court of Florida.
    Sept. 2, 1982.
    C. Brent McCaghren of Winderweedle, Haines, Ward & Woodman, Winter Park, for petitioner.
    Darryl M. Bloodworth of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, Orlando, for respondent.
   ADKINS, Justice.

We have for review a decision of the Fifth District Court of Appeal (Abramowitz v. Barnett Bank of West Orlando, 394 So.2d 1033 (Fla. 5th DCA 1981)), which is in conflict with our decision in St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, (1982), as well as Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Financial Federal Savings & Loan Association v. Burleigh House, Inc., 305 So.2d 59 (Fla. 3d DCA 1974), cert. discharged, 336 So.2d 1145 (Fla.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Respondent, Abramowitz (hereinafter referred to as plaintiff), brought an action against Barnett Bank seeking damages due to an alleged usurious loan. Plaintiff alleged that a $400,000 loan made by Barnett Bank was usurious since interest was initially set at 9% per annum and a 1% or $4,000 service fee was charged which plaintiff claimed was in the nature of interest.

Barnett Bank denied the usurious nature of the loan alleging that the $4,000 charge was a service charge, denying any corrupt intent, and asserting that the interest rate charged on the loan was permitted. On motion for summary judgment filed by both parties, the trial judge entered final judgment in favor of Barnett Bank holding that Barnett bank did not charge an unlawful rate of interest and had no intent to collect more interest than was authorized by law. After entry of summary final judgment in favor of Barnett Bank, the plaintiff appealed. On appeal the district court of appeal reversed the final summary judgment in favor of the bank, Abramowitz v. Barnett Bank of West Orlando, 356 So.2d 329 (Fla. 4th DCA 1978), determining that a genuine issue existed concerning how much of the $4,000 service fee compensated Barnett Bank for out of pocket expenses and for services rendered. Further, the Fourth District Court of Appeal determined that corrupt intent generally should not be dealt with on summary judgment. Petition for certiorari in this Court was denied without opinion. Abramowitz v. Barnett Bank of West Orlando, 364 So.2d 880 (Fla.1978).

The cause was then tried without jury and, again, final judgment was entered in favor of Barnett Bank and against plaintiff. The trial court specifically found that Barnett Bank did not charge interest in excess of 10% for the first year of the loan and that the bank did not willfully or knowingly charge a rate of interest greater than 10%. The district court of appeal reversed the final judgment holding that there was not sufficient evidence to sustain the trial court’s findings.

The district court analyzed the transaction as follows:

“Service Pee” $ 4,000.00
Less “Reasonable Expenses” -300.00
“Hidden Interest” $ 3,700.00
Principal of Loan $400,000.00
Less Prepaid Interest -3.700.00
Actual Principal $396,300.00
Maximum legal amount of interest collectible on this loan (10%) of actual principal $ 39,630.00
Actual interest charged and billed 36,347.78
Plus “hidden interest” + 3.700.00 $ 40,047.78
Amount of over-charge $ 40,047.78 -39.630.00
$ 417.78

The difficulty here was that the 1% taken up front was considered as a reduction in the amount of the principal received. The district court relied upon Hamm v. St. Petersburg Bank & Trust Co., 379 So.2d 1300 (Fla. 2d DC A 1980). We quashed that decision and held that the service fee should not be considered as “interest” within the usury statute, and should not be considered as a reduction in the amount of the principal. St. Petersburg Bank & Trust Co. v. Hamm.

The trial judge found as a matter of fact that the bank performed several functions other than those of a straight loan transaction. The trial court found “that the bank earned all or a high percentage of the service fee for services rendered. The value of the services was clearly in excess of the amount necessary to remove any taint of usury.” The trial court also stated: “There is testimony from independent impartial bankers that the amount of the fee charged is fair and reasonable for the services the defendant bank performed and was for services rendered as opposed to hidden interest charges.”

Without considering any reasonable expense, the breakdown for this one year loan would be as follows:

Service fee $ 4,000.00
Principal of loan Maximum legal amount of interest collectible on this loan (10%) of actual principal 400,000.00 40,000.00
Actual interest charged and billed 36,347.78
Plus service fee 4,000,00
Total interest & service fee charged $ 40,347.78
Maximum (10%) interest -40.000.00
Overcharge $ 347.78

The critical question is whether $347.78 or more was attributable to the lender’s bona fide “expenses” so as to remove from the transaction any possible taint of usury. The district court found that only a $300 final inspection fee could be considered as a “bona fide expense.” The trial court found that the bank earned all or a high percentage of the $4,000 for services rendered. In our opinion the evidence is sufficient to show an amount in excess of $347.78 which was expended by the bank as expenses incidental to the loan. The loan was not usurious.

The decision of the district court of appeal is quashed and this cause is remanded with instructions to affirm the judgment of the trial judge.

It is so ordered.

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

SUNDBERG, J., concurs in result only.


author: McDONALD, Justice.

text:
    Arthur Wayne MARSH, Petitioner, v. Laurel J. Ising MARSH, Respondent.
    No. 60823.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Robert J. Buonauro, Orlando, for petitioner.
    Ed Leinster, Orlando, for respondent.
   McDONALD, Justice.

This cause is before the Court on petition to review Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981), which conflicts with Ball v. Ball, 335 So.2d 5 (Fla.1976), and, Marti v. Marti, 377 So.2d 1005 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1198 (Fla.1980). We have jurisdiction and quash the instant decision.

The petition concerns the final judgment of a dissolution of marriage, and the sole issue is whether the wife acquired a special equity in the marital home. The parties married on October 7, 1978. Two months later the wife issued a quit claim deed transferring her home from sole ownership to the two of them as tenants by the entire-ties. The wife owned the home prior to the marriage and paid all of the mortgage payments and property taxes. The petition for dissolution of marriage was filed on February 13, 1979, shortly after the transfer. No children were born of the marriage, and at trial the wife alleged that she made the transfer to provide a home for her children from a previous marriage, should anything happen to her. She also claimed that in the event of a divorce the property was to be transferred back to her. The husband claimed that the transfer was a gift.

As is usually the case in this type of proceeding, neither the deed nor any other contemporaneous document contained evidence of the intent behind the transfer. The trial judge, finding almost a direct conflict in the couple’s testimony, found for the husband and ordered a partition and sale of the home. The district court, interpreting Ball v. Ball, 335 So.2d 5 (Fla.1976), reversed the trial court, holding that no credible evidence supported the court’s ruling that the wife intended a gift.

In Ball we held that one way a special equity may be created is by an unrebutted showing that all of the consideration for the property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. The special equity may be defeated, however, by “contradictory evidence that a gift was intended” at the time of the transfer.

Conflict has arisen between the district courts of appeal concerning the application of what constitutes “contradictory evidence.” The issue involves the proof required by the grantee to establish the intent of the grantor. When the intent behind the transfer is included within the deed or other contemporaneous document the problem is not as severe as when the evidence of intent comes from the testimony of the litigants and their supporting witnesses. Under these circumstances, the testimony is subject to obvious bias and the witnesses’ credibility is naturally in question. The credibility of the witnesses and the weight given their testimony, however, is a question for the trial court. Mirras v. Mirras, 202 So.2d 887 (Fla. 2d DCA 1967); Sharp v. Sharp, 185 So.2d 508 (Fla. 2d DCA 1966). Findings of fact by a trial court are presumed to be correct and are entitled to the same weight as a jury verdict. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976).

When, as here, the grantor’s intent is to be determined from the conflicting testimony of the parties, it is the responsibility of the trial court to evaluate the weight and credibility of that testimony and to arrive at a determination. Our examination of the record convinces us that the trial court properly evaluated the evidence in reaching its decision. The district court improperly substituted its judgment for the trial court’s in reaching a contrary decision.

The decision of the district court is quashed and remanded with instructions to affirm the judgment of the trial court.

It is so ordered.

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

BOYD, J., dissents.

      . Art. V, § 3(b)(3), Fla.Const.

      . 335 So.2d at 7.

      . See Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981) (Cowart, J., dissenting).


text:
    Kenneth S. NATION, Petitioner, v. CITY OF FORT LAUDERDALE, Respondent.
    No. 61081.
    Supreme Court of Florida.
    Sept. 2, 1982.

      M. Daniel Hughes and E. Hugh Chappell of Chappell, Brandt & Gore, Fort Lauder-dale, for petitioner.
    Donald R. Hall, City Atty. and Dennis E. Lyles, Deputy City Atty., Fort Lauderdale, for respondent.
   ALDERMAN, Chief Justice.

We review the decision in City of Fort Lauderdale v. Nation, 400 So.2d 1275 (Fla. 4th DCA 1981), which has been certified to be of great public importance. The issue is whether municipalities can lower retirement ages, thus adversely affecting the income of public employees who joined a mandatory retirement system at a time when it provided for retirement at an older age. The Fourth District answered this question in the affirmative. We agree and approve its decision.

Kenneth Nation was employed as a firefighter by the City of Fort Lauderdale from March 11, 1957, until his retirement on March 31, 1977. Prior to 1973, he belonged to the City Employees Pension Plan. Effective January 3, 1973, the City abolished the old pension plan and established two new retirement systems — the General Employees’ Retirement System and the Police and Firefighters Retirement System. As a condition of continued employment, firefighters were required to choose either the General Employees’ Retirement System or the Police and Firefighters Retirement Plan. In January 1973, Nation became a member of the Police and Firefighters Retirement Plan and withdrew from the General Retirement System. At that time, the plan provided in pertinent part:

Sec. 31-15. Retirement Dates and Benefits.
(1) Normal Retirement Date.
(a) A Member shall retire on the first day of the month coincident with, or next following the attainment of age fifty (50) and the completion of twenty (20) years of Continuous Service.
(b) A Member must retire on a date not later than his fifty-fifth (55th) birth-date or upon the completion of twenty (20) years service, if later, as regards Members on the Effective Date of this amended Plan. A Member eligible for Normal Retirement who desires to continue in employment beyond his Normal Retirement Date shall make application to the Board and such application for extended service shall be subject to approval by the City Manager upon the recommendation of the Member’s Department Head.

Nation, in early 1977, requested an extension of his employment until his fifty-fifth birthday, which would occur in 1979. He was advised by the Fire Chief and City Manager that he would have to retire in 1977 at the end of 20 years’ service. They based their refusal to allow Nation to continue in his employment beyond 20 years on an amendment to section 31-15(l)(b), effective September 1976, which reads as follows:

(b) Subparagraph (a) immediately preceding notwithstanding, a member eligible for normal retirement prior to and including January 1, 1975, who desires to continue in employment beyond his normal retirement date shall make application to the City Manager through his department head; upon review of the application, the justification, and the department recommendations, the City Manager may approve such an extension, provided however, if such an extension of service is granted it shall be for a period not to exceed one (1) year, and only one such extension may be granted to any member.

Since Nation had not been eligible for normal retirement prior to January 1, 1975, an extension of his employment beyond March 1977 was proscribed by amended section 31-15(l)(a) and (b). Nation did not appeal the City’s action nor did he seek reinstatement as a firefighter.

Nation then sued the City of Fort Laud-erdale for damages. The trial court entered a partial final judgment on the issue of liability in his favor and held that Nation had reached 20 years of service prior to reaching age 55 and that, therefore, under the act in existence at the time he became a member of the Police and Firefighters Retirement System, he should have been allowed to continue his service with the City until age 55. The trial court thereafter entered final judgment in favor of Nation.

The City then appealed to the Fourth District which reversed and held that the City could amend its pension plan to lower the mandatory retirement age at which firemen must retire from 55 to 50 years of age, even though the amendment adversely affected those who became participants when the retirement age was more generous.

The district court, although confident that its result was consistent with the present law in Florida, expressed concern with language utilized by this Court in City of Jacksonville Beach v. State, 151 So.2d 430 (Fla.1963). In that ease, we stated that retirement systems should be sustained on the theory that “they offer an added inducement to those with special skills and techniques to remain in government employment ... and make government service a career rather than a passing interlude .... It is not difficult to conceive how this theory would be exploded if prospective employees were told that, after a short service or a long one, the legislature could, nevertheless, disturb the arrangement anytime it saw fit since all employees in a given category were required to be members of a standard plan. Id. at 431-432.” City of Fort Lauderdale v. Nation, 400 So.2d at 1276-77.

Nation contends that the City of Fort Lauderdale Police and Firefighters System is a voluntary pension plan and that the principle announced by the First District Court and this Court in State ex rel. O’Donald v. City of Jacksonville, 142 So.2d 349 (Fla. 1st DCA 1962), aff’d, 151 So.2d 430 (Fla.1963), applies here. This principle is that benefits provided employees under a voluntary pension plan created by a legislative act may not be modified or reduced by subsequent amendatory act.

We disagree with Nation’s contention and hold that the Fourth District correctly decided that the retirement plan in issue was not voluntary, but rather was mandatory since Nation was required to participate in one of the City’s pension plans and was not free to choose not to participate in the pension scheme. Florida Sheriff’s Association v. Department of Administration, 408 So.2d 1033 (Fla.1981).

Furthermore, we do not find that our earlier decision in City of Jacksonville Beach v. State, wherein we affirmed the First District’s decision in State ex rel. O’Donald v. City of Jacksonville, in any way precludes the result reached by the district court in the present case.

Accordingly, we find that the Fourth District correctly resolved the certified question and approve its decision.

It is so ordered.

BOYD, OVERTON, SUNDBERG, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents.


author: EHRLICH, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Floyd Michael KILBREATH, Respondent.
    No. 61133.
    Supreme Court of Florida.
    Sept. 2, 1982.

      Thomas G. Kane of Driscoll, Langston & Kane, Orlando, for petitioner.
    William H. Roundtree, Cocoa, for respondent.
   EHRLICH, Justice.

We have for review the decision of the District Court of Appeal, Fifth District, in Kilbreath v. State Farm Mutual Automobile Insurance Co., 401 So.2d 846 (Fla. 5th DCA 1981), which expressly and directly conflicts with Mendlein v. United States Fidelity & Guaranty Co., 277 So.2d 538 (Fla. 3d DCA 1973). We have jurisdiction.

The determinative issue in Kilbreath is whether, in an action under an uninsured motorist insurance policy, the statute of limitations begins to run as of the date of the accident. We hold that it does.

The pertinent facts may be stated briefly. Kilbreath had automobile insurance coverage under four separate policies issued to him by State Farm. On June 11, 1972, Kilbreath was injured in a motor vehicle accident. He requested arbitration of his claim on April 26, 1976, which request was denied on May 19, 1976. On May 16, 1980, almost eight years after the accident, Kil-breath filed suit against State Farm seeking underinsured motorist benefits under the uninsured motorist coverage. The trial court dismissed the action with prejudice reciting in the order of dismissal that the claim was barred by the statute of limitations. The Fifth District Court of Appeal reversed, stating that arbitration or its waiver or denial by the company is a condition precedent to an action on the policy and that the statute of limitations did not begin to run until all conditions precedent to recovery under the contract had occurred. It held that the statute of limitations did not begin to run until arbitration had occurred or had been waived or denied by the insurance company. This petition followed.

The cause of action for an uninsured/underinsured motorist claim arises on the date of the accident with an uninsured/underinsured motorist since the right of action stems from the plaintiff’s right of action against the tortfeasor. The statute of limitations thus begins to run on the date of the accident rather than on the date of compliance with the conditions precedent contained in the insuring agreement. Mendlein; Bocek v. Inter-Insurance Exchange of Chicago Motor Club, 175 Ind.App. 69, 369 N.E.2d 1093 (1977).

Kilbreath’s policy of uninsured motorist insurance contains the following language:

To pay all sums which the insured or his legal representative shall be legally enti-tied to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

The policy does not preclude the insured from maintaining an action at law against the tortfeasor. That cause of action against the third party tortfeasor clearly arises on the date of the accident. If the insured elects to proceed under his uninsured/underinsured motorist coverage, his first remedy is by the agreement of the parties. If the parties are unable to agree, his next remedy is by arbitration. If the insurer waives arbitration or refuses to arbitrate, the insured may then maintain an action at law against the insurer. The policy also provides that no action shall lie against the insurer unless as a condition precedent thereto there shall have been full compliance with all terms of the policy. An effort to agree amicably on the issue of entitlement and amount of damages, and failing that, arbitration, are both conditions precedent to an action against the insurer, but neither has any effect on when the cause of action arises. These are remedies provided by the insurance policy which the insured must exhaust before he can sue the insurer, but the statute of limitations is not tolled during the running of these times.

The uninsured motorist statute gives the insured the same cause of action against the insurer that he has against the uninsured/underinsured third party tortfeasor for damages for bodily injury. Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978). It provides a new procedure whereby the insured may recover his loss against his own insurer. The accrual of the action occurs at the time of the accident with the uninsured motorist. As pointed out by Judge Sharp in her dissent in the opinion below:

In an action against an insurance company for “underinsured” or “uninsured” motorist coverage the right of action stems from the plaintiff’s right of action against the tortfeasor ....

401 So.2d at 847 (Sharp, J., dissenting).

The decision of the district court is quashed, and this cause is remanded with directions to reinstate the order of dismissal.

It is so ordered.

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

ADKINS and SUNDBERG, JJ., dissent.

      . Art. V, § 3(b)(3), Fla.Const.

      . The trial court held the claim stale under the five year statute of limitations for an action on a contract, section 95.11(2)(b), Florida Statutes (1979). The district court likewise viewed five years as the proper measuring period, albeit running from a different starting point. It is not necessary to the outcome in this case to decide now and thus we reserve the issue of whether the applicable limitations period is the five year contract period or the four year tort period, since in any event the instant lawsuit was filed eight years after the date of the accident.


author: McDONALD, Justice. ALDERMAN, Chief Justice,

text:
    J. B. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 60477.
    Supreme Court of Florida.
    Sept. 2, 1982.

      Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Barbara Ann Butler and Sean Daly, Asst. Attys. Gen., Daytona Beach, for respondent.
   McDONALD, Justice.

We have for review Thomas v. State, 394 So.2d 548 (Fla. 5th DCA 1981), because of conflict with Brown v. State, 206 So.2d 377 (Fla.1968), Tascano v. State, 393 So.2d 540 (Fla.1980), and Williams v. State, 395 So.2d 1236 (Fla. 4th DCA 1981). We have jurisdiction pursuant to article Y, section 3(b)(3), Florida Constitution, and quash in part the instant district court opinion.

A jury convicted Thomas of false imprisonment, sexual battery, and petit theft. The trial court sentenced him to forty years in prison. On appeal the district court affirmed the conviction, but remanded for resentencing because the trial court improperly imposed a general sentence for multiple convictions.

Two of the points considered by the district court present the basis for this review. The following dialog occurred during the state’s closing argument:

You can consider all the evidence. The trial has to be held in public, everything has to be done face to face so you can see and because that is a very great part of this case. Is it reasonable to believe that Debby Sue Clark, under any circumstances, and in particular, these circumstances, would consent to sexual intercourse with that (indicating)?
Mr. Large [defense counsel]: Objection, Your Honor. I have a motion to make.
The Court: Motion overruled.
Mr. Large: Can I make the motion after the jury is excused?
The Court: Denied.

The district court found that defense counsel had waived any objection and that the waiver precluded appellate review because the complained-of remark did not constitute fundamental error.

This Court has stated that “[a] lawyer is not required to pursue a completely useless course when the judge has announced in advance that it will be fruitless.” Brown v. State, 206 So.2d 377, 384 (Fla.1968). We find that further argument on this point would have been pointless and that defense counsel properly acceded to the trial court’s directions. See State ex rel. Garlovsky v. Eastmoore, 393 So.2d 567 (Fla. 5th DCA 1981); Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978). On the facts of this case the objection and request to make a motion, contrary to the district court’s finding, sufficed to preserve the point on appeal.

We do not agree, however, with appellate counsel’s characterization of the prosecutor’s remark as a “racial slur.” The district court points out that evidence presented at trial showed disparate lifestyles, social standing and dress between Thomas and the victim and that not even a suggestion of racial allusion occurred during the rest of the trial. We agree that the prosecutor’s question was not designed to play on racial prejudice and also agree with the district court’s finding that the comment did not constitute fundamental error.

Pursuant to Florida Rule of Criminal Procedure 3.390(a), Thomas’ trial counsel requested that the jury be instructed on the possible penalties provided for the crimes charged against Thomas. The trial court agreed to give such instructions, but, upon reconsideration, later refused to do so. The district court found that Thomas had not objected to the court’s failure to instruct on penalties and, based on Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), and Castor v. State, 365 So.2d 701 (Fla.1978), held that the issue had not been preserved for appeal.

In Tascano v. State, 393 So.2d 540 (Fla.1980), we held that giving an instruction requested pursuant to rule 3.390(a) is mandatory. Tascano’s holding was prospective, but we stated that “[Tascano], as well as all others who have preserved this point on appeal, receive the benefit of this interpretation of the rule.” Id. at 541 (emphasis supplied). Williams v. State, 395 So.2d 1236 (Fla. 4th DCA 1981), presented the fourth district with a situation very similar to the instant case. The district court found a Tascano violation and stated that

[i]f a jury instruction is requested and the basis for the request verbalized failure to object to rejection of the instruction or to repeat the grounds in the form of an objection does not preclude appellate review.

395 So.2d at 1237. See Borden v. State, 402 So.2d 1176 (Fla.1981). The fourth district expanded on this statement in Austin v. State, 406 So.2d 1128 (Fla. 4th DCA 1981). Austin’s discussion of the interaction of Tascano and Florida Rule of Criminal Procedure 3.390(d) has been echoed in Hubbard v. State, 411 So.2d 1312 (Fla. 1st DCA 1982). In discussing Castor v. State, 365 So.2d 701 (Fla.1978), and rule 3.390(d), the first district found that, if a trial court fails to give a requested Tascano instruction, counsel need not

use .the magic words, “I object,” so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that he was given a clear opportunity to rule upon the objection.

At 1314.

In the instant case Thomas filed a written request for an instruction on penalties, which the trial court agreed to give. At the charge conference the court allowed each side to argue the necessity of the instruction and then, acceding to the state’s position, decided not to give the requested instruction. The court, therefore, clearly understood Thomas’ position, and further argument or objection would have been futile. This factual situation satisfies the objectives of the contemporaneous objection rule — “to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Castor v. State, 365 So.2d at 703. We agree with both the fourth and first districts that, in a situation such as this, it is not necessary to say, “I object,” and state the grounds therefor where the record shows, clearly and unambiguously, that the request was made and that the trial court clearly understood the request and, just as clearly, denied that specific request.

We approve Williams and quash that portion of the instant district court opinion on the Tascano issue. The district court is directed to remand this case for a new trial.

It is so ordered.

ADKINS, OVERTON and SUNDBERG, JJ., concur.

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

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

I agree with the majority’s holding that the prosecutor’s question was not designed to play on racial prejudice and that the district court’s finding that the comment did not constitute fundamental error was correct. I disagree, however, with the quashing of that portion of the district court’s opinion dealing with the Tascano issue.

In my view, the Fifth District correctly held that Thomas failed to preserve this issue for appeal since he did not timely object to the trial court’s failure to give the penalty instructions.

Here, the majority notes that this Court’s holding in Tascano was prospective, but that it also applied to all others who preserved this point for appeal. The majority then recites language from the First District’s decision in Hubbard v. State to the effect that so long as the trial court is fully aware that an objection is being made to the denial of a requested instruction and so long as the court is presented with the specific grounds of the objection and is given a clear opportunity to rule on the objection, the requirement of objection in Florida Rule of Criminal Procedure 3.390(d) is met and the magic words “I object” need not be used. The majority then concludes that the objectives of the contemporaneous objection rule have been met in the present case since the defense filed a written request for an instruction on penalties, since the court allowed each side to argue the necessity of the instruction, and since the court acceded to the State’s position and refused the requested instruction.

This statement by the majority gives the misimpression that the defendant made known to the court his view of the necessity for the instruction. Not only did the defendant not object to the denial of the requested instruction, but he in no way made known to the trial court his dissatisfaction with this denial.

The defendant initially submitted several instructions relating to maximum-minimum penalties. At the charge conference, the State objected to these instructions on the basis that they were inconsistent with the required instruction that the jury is to disregard the consequences of its verdict. The State expressed its opinion that the law was not settled on this issue but that “it’s inconsistent to tell the jury, on the one hand, that they are to disregard the consequences of their verdict, and practically, in the same breath, tell what the consequences of their verdict are, or potentially are, and in that regard, the State would object to instructions on penalty.”

The defendant said nothing in response to the State’s argument. The Court then said:

I agree with the State’s argument that there is an anomaly in telling the jury that they are not to be concerned about something, and then promptly telling them what it is that they are not to be concerned about. But, the rule says that the Court shall do it. The cases say that it is directory only, and decline to reverse when the trial court refuses to give the instruction. In this case, I am going to give it. (Emphasis supplied.)

The court then asked whether there was any argument as to the accuracy of the defendant’s proposed instructions as to the maximum and minimum penalties. The court expressed uncertainty about the correctness of the minimum sentences set out in the requested instructions. The defendant made no attempt to justify the instructions he had submitted or to answer the questions raised by the court. Because he was not sure that the requested instructions were correct, the trial judge announced that he had reconsidered his original decision to give them and that he was going to deny the defendant’s request. Specifically, the court said:

I am going to reconsider the ruling and not give the instruction under the maximum and minimum, and the record will indicate the reason. I am actually not sure, from this statute, but what the minimum punishment would be, a minimum fine. I frankly find that the statute is unclear. It leaves a situation that’s quite ambiguous. Therefore, the Defendant’s Requested Numbers Three, Four, Five, Six, and Seven, are refused.

Defendant voiced no objection in any form to this later denial.

In the context of this record, Thomas certainly did nothing timely to inform the trial court of his objection to the denial of his request. He made no argument in support of his requested instruction which could be interpreted as a statement of specific grounds for objection. He failed to preserve this point for appeal, and I would therefore approve the decision of the district court.

BOYD, J., concurs.

       A different situation would arise if the court were to instruct on penalties, but not give the specific instruction submitted by the defense. In that instance, the contemporaneous objection rule would require a specific objection.


author: PER CURIAM.

text:
    Agnes GATES, Appellant, v. Robert W. GATES, Appellee.
    No. ZZ-430.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1981.
    Rehearing Denied Aug. 23, 1982.
    Elaine N. Duggar of Gardner, Shelfer, Mendelson, Duggar & Thompson, Tallahassee, for appellant.
    Walter J. Smith of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellee.
   PER CURIAM.

Affirmed.

McCORD and MILLS, JJ., and AGNER, ROYCE, Associate Judge, concur.

ON MOTION FOR REHEARING

Appellant, Agnes Gates, contended, among other things in this appeal, that the trial court erred in this divorce action in awarding her ex-husband, Robert Gates, a special equity in the marital home. The home was purchased in 1972 by appellee and was thereafter titled in both parties’ names as tenants by the entireties. Divorce proceedings were instituted in 1980. In our per curiam affirmance of the trial court, we necessarily considered the following question: Whether a special equity can be asserted as to property in a divorce proceeding when the property was transferred into the name of husband and wife, as tenants by the entireties, after the adoption of the 1968 Constitution and when the divorce proceedings were instituted after the Supreme Court decision in Ball v. Ball, 335 So.2d 5 (Fla.1976). By our affirmance, we answered the above question in the affirmative. However, in light of the fact that our decision in this case conflicts with the decision of the District Court of Appeal, Fifth District, in Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), our ruling on the motion for rehearing requires some discussion.

The Wright decision relies on this Court’s decision in Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978). In that case, this Court was faced with the following set of facts: Land was conveyed to the husband by husband’s father prior to husband’s marriage and, after the marriage, husband deeded the land to himself and his wife as tenants by the entireties in 1959. In 1959, state law was to the effect that by transferring the property to himself and his wife, the husband was presumed to have intended a gift of an entirety interest to his wife. Resolution of the Parramore case involved an interpretation of Ball. In Ball, the court recognized the revision of the 1968 Florida Constitution, which stated that: “There shall be no distinction between married women and married men in the holding, control, disposition, or encumbering of their property, both real and personal.” Art. X, § 5, Fla.Const. The court ruled that after the 1968 constitutional revision, the gift presumption is no longer necessary and

that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases, the property should be awarded to that spouse as if the tenancy were created solely for sur-vivorship purposes during coveture, in the absence of contradictory evidence that a gift was intended.

As to retroactivity of the Ball decision, the court went on to state:

To avoid the litigation which would result from the retroactive application of this decision, we hold that it shall apply only to dissolution proceedings instituted after the date this opinion becomes final.

In Parramore, the court declined to apply the Ball ruling even though the dissolution proceedings in Parramore were instituted after the Ball decision became final. The court reasoned that the Supreme Court clearly did not intend for the Ball decision to have retroactive application and to apply Ball to the facts of that case, where the property transfer took place in 1959 while the gift presumption was in effect, would be a retroactive application of the Ball ruling.

The Wright case involved a transfer of property from husband to husband and wife after 1969. Divorce proceedings were instituted in that case after the date of the Ball decision and after the 1968 constitutional revision. The Wright court chose to apply Parramore, saying that the Parramore decision had interpreted the Ball ruling as not allowing any application of the Ball principle to any transfer of property occurring prior to the date of the Ball decision. We respectfully disagree with the ruling in Wright and its interpretation of the Parra-more decision. It is our opinion that the Ball decision should be interpreted to apply to any case in which the divorce proceedings were instituted after the 1976 Ball decision and in which the transfer of property took place after the 1968 constitutional revision. That view does not conflict with Parramore.

The motion for rehearing is denied, and we certify this case to the Supreme Court of Florida as being in direct conflict with the Wright decision, which case is presently pending before the Florida Supreme Court.

McCORD and MILLS, JJ., and AGNER, ROYCE, Associate Judge, concur.