author: PER CURIAM. TORBERT, Chief Justice

text:
    Ex parte Matthew Alen SHUTTLEWORTH and Deborah Ann Shuttleworth. (Re In the Matter of Mary Ann (Matthews) KELLEY, Matthew Alan Shuttleworth, Father, and Deborah Ann Kelley, Mother v. LICENSED FOSTER PARENTS, et al.).
    80-311.
    Supreme Court of Alabama.
    Oct. 2, 1981.
    Rehearing Denied Feb. 5, 1982.
    Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for petitioners.

      Susan M. Tuggle of The Legal Clinic of Foley, Rodenhauser & Tuggle, Huntsville, for respondents.
   PER CURIAM.

This is a case involving termination of parental rights by the Family Court of Jefferson County, Alabama.

We granted a petition for writ of certio-rari to the Court of Civil Appeals to review the propriety of its affirmance of the judgment of the Family Court of Jefferson County, denying relief on a Rule 60(b), A.R. C.P., motion to the natural parents of an illegitimate child. 410 So.2d 894. The poignant plea of these young parents for custody of their first-born child deserved and received careful and considerate attention by two of our courts. Nevertheless, they have not met with success. Because of a threshold procedural error, which may have substantially undercut the substantive issues involved in the case, we are constrained to reverse.

In order to place the issues in proper focus, we provide a brief statement of the facts. The petitioners Deborah Ann Shut-tleworth (Deborah) and Matthew Alen Shuttleworth (Matthew) are 21 years of age. A baby girl, Mary Ann Kelley (Mary Ann), was born to them on January 1,1980, in the State of Tennessee. Deborah and Matthew were, and are, students at Calhoun Community College, are in love, and have, since the birth of their child, married. Matthew never denied paternity of the child and has relentlessly objected to adoption and objected to abortion. Deborah admits he is the father of the child. From the first time he learned that Deborah was pregnant, he wanted to marry her and become the legal father of the child. On the other hand, Deborah vascillated. She was ill during the pregnancy with pre-eclampsia, a physical disorder caused by a toxic condition developed in late pregnancy.

In her confusion and illness, she consulted with Laura Dinwitty (Ms. Dinwitty) of the Catholic Social Services Agency of Huntsville, Alabama, about placing the child for adoption. She testified that she told. Ms. Dinwitty that Matthew was opposed to adoption and would not consent thereto. In spite of this, Ms. Dinwitty wrote the court that, “Mr. Shuttleworth, age 21, is willing to sign the necessary papers and chooses to sign them stating that he neither denies nor admits paternity. He would like the papers mailed to him at his address, 211 Mark Street, Decatur, Alabama 35601.”

On another occasion in a “court summary” she wrote “He [Matthew Shuttleworth] was contacted regarding the birth of Mary Ann Matthews and agreed to adoption placement. His present address is 211 Mark Street, Decatur, Alabama 35601.”

At the time Ms. Dinwitty authored these statements, she had never met Matthew. These statements were before the court for its consideration on March 25, 1980, when the parental rights of Matthew to his then three-month-old daughter were terminated. Doubtless, they entered into the decision making process and may have substantially influenced the court to order the following:

It having been made to appear to the Court that the putative father, Matthew Alan Shuttleworth, does have knowledge of this hearing, has discussed the case with the social worker with the Catholic Social Services indicating his consent, and having failed to appear, and
The Court having considered and understood the same, is of the opinion that it would be in the best interests of the future welfare of said child that the putative father be relieved of its custody, all interested parties in open court having expressed consent and agreement to the order herein made, it is, accordingly,
ORDERED, ADJUDGED AND DECREED BY THE court that all parental rights which the putative father, Matthew Alan Shuttleworth has in or to the care and custody of said infant, Mary Ann Matthews, be and they are hereby terminated and severed, and the care, custody and control of said child is hereby committed to the Catholic Social Services for permanent placement or adoption.

By her own statement, Ms. Dinwitty admits that she saw Matthew for the first time on May 21, 1980, almost two months after his parental rights were terminated. She said that she made the representation to the court concerning agreement of the father because the mother had said on one occasion that he would agree, although on other occasions she had said he would not agree.

Deborah testified in court that Ms. Din-witty told her she had twelve months after the court hearing to make up her mind as to whether or not the surrender of her child would be permanent. Ms. Dinwitty denies making such a representation. She does not deny that she attempted to notarize a consent paper purportedly signed by Matthew Alen Shuttleworth, although she had not seen him sign it. Her jurat on this particular paper was cancelled almost immediately by her, after considering the impropriety of making such a certification. This document was not presented to the court at the hearing on March 25, because it was not received until after the hearing was completed.

Ms. Dinwitty admitted that if she had handled the custody proceedings in Madison County, Alabama, she would have written the father and had direct communication from him before final hearing in Family Court. The proceedings were held in Jefferson County at the request of Deborah in order to protect the secrecy of her giving birth to an illegitimate child. In furtherance of the same purpose, the child was born in Tennessee. Similarly, Matthew says he signed the consent because he was told by Deborah that it was necessary to protect the secrecy of the birth, but not to surrender his parental rights.

Although Matthew, along with his wife, is a student at Calhoun Community College, he is a licensed cosmetologist and works as such 40 hours per week. Matthew’s parents, as well as Deborah’s parents, have been supportive of them throughout their crisis. Harold Kelley, the father of Deborah, is employed with the Tennessee Valley Nuclear Division and earns an income in the $30,000.00 to $40,000.00 bracket. He has offered to his daughter and her husband anything that they might need in the way of financial or moral support for the help of the baby. Likewise, H. W. Shuttleworth, the father of Matthew Shuttleworth, is an instructor, basketball coach, and athletic director at Calhoun Community College. He earns approximately $25,000.00 a year and has also agreed to help support his son’s child. Both of their spouses have offered to give any help needed.

It is uncontroverted that Matthew did not sign for the process notifying him of the termination hearing, as required under Rule 4.1(c)(2), A.R.C.P. The father of Matthew signed as agent for Matthew, but, in fact, was not his agent. After signing the papers from the Family Court, the father put the process in his son’s room, where Matthew received it. Later, Matthew took the papers to Deborah who told him they were papers from the court which he should sign in order to protect the secrecy of the birth. Matthew testified that he thought that in any proceeding designed to terminate his rights, he would receive papers from the sheriff’s office by way of a knock on his door and personal delivery. He said [he had planned] that when he got those papers he would get a lawyer and fight the case. After learning that his parental rights had been terminated, on June 10, 1980, Matthew, along with Deborah, filed a motion under Rule 60(b), A.R.C.P., to set aside the court’s order of March 25, 1980. The motion sought to join the adoptive parents, who at the time of the filing of the motion had had custody of Mary Ann for only two months. They were not joined, however. On July 21,1980, the court heard testimony on the motion and continued it to August 4 for additional testimony. The court, on August 14, 1980, entered a four-page order denying relief under the Rule 60(b) motion. The court concluded:

It is obvious that the proposed adoptive parents have acted in good faith and have taken the child in their home to be adopted. The Court is well aware that regardless of its decision there will be much sadness concerning the placement of this child. The court is of the opinion that if such sadness must exist, the ones who allowed it to come into existence must be the ones to shoulder the burden.

At the outset, we must determine if Matthew was properly notified of the hearing set to determine if his parental rights in and to Mary Ann should be terminated. If he was not properly notified, then the Family Court of Jefferson County had no authority to terminate his rights. The Legal Clinic urges us not to disturb the judgment of the Family Court of Jefferson County, because Matthew Shuttleworth did receive notice of the March 25th hearing, albeit not in the exact form prescribed by Rule 4.1(c)(2), A.R.C.P. All that was lacking was his signature on the return receipt, and that this formality does not violate the due process requirements of the United States Constitution. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). They go on further to say that an unwed father is not entitled to notice in a hearing to terminate parental rights, although in delinquency cases he is entitled to notice and even the appointment of counsel if he is indigent. Smoke v. State Department of Pensions and Security, 378 So.2d 1149 (Ala.Civ.App.1979); Crews v. Houston County Department of Pensions and Security, 358 So.2d 451 (Ala.Civ.App.1978); cert. denied, 358 So.2d 456 (Ala.1978).

In the seminal decision of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Supreme Court of the United States declared that in delinquency hearings due process requires that adequate written notice, at the earliest practicable time, be afforded to the child and his parents or guardian, informing them of the specific issues they must meet to allow them to prepare a defense. The court further held that in such delinquency proceedings the child and his parents must be advised of their right to be represented by counsel and that if they are not able to afford same, counsel should be appointed to represent them. Following that decision, legislatures of various states provided for such notice and counsel in delinquency cases. Such due process safeguards in Alabama are found in Code 1975, § 12-15-63. We can perceive no reason to guarantee these due process safeguards in a delinquency case and refuse them in a case terminating parental rights. In the former, the child is subject to severe punishment by incarceration or otherwise. In the latter, the natural bonds of family are subject to destruction. The judicial action in both instances portends grave consequences, indeed. Our courts, to their credit, have perceived no distinction. The very case cited by the Legal Clinic, Smoke, is a termination of parental rights case, pure and simple, with no attendant delinquency procedures. The child in Smoke also was an illegitimate child.

Over 58 years ago, this court, in the case of Lewis v. Crowell, 210 Ala. 199, 200, 97 So. 691, 692 (1923), held that the father of bastard children was entitled to their custody. The court said:

The putative father of bastards, desiring the custody and control of them, is entitled to it against all but the mother, if competent to care for and suitable to take charge of them; and if it appears from the evidence that the best interest and welfare of the children will be thereby secured.

The critical question, however, is whether such a parent is entitled to notice prior to the revocation of any parental rights which he might have? In the leading case of Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81 (1931), Annot., 76 A.L.R. 238 (1932), it was held that a parent of legitimate children cannot be deprived of their custody without a hearing before a court of competent jurisdiction in which he has been properly served with process, has entered an appearance, and has been allowed an opportunity to appear and be heard. The same procedural safeguards now have been provided for the parents of illegitimate children by the United States Supreme Court decision in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). There, the Illinois law provided that children of all parents could be removed from them in a neglect proceeding that entailed notice, hearing, and proof of parental unfitness. An unwed father, however, was subject to loss of his children absent a showing of unfitness. He was not entitled to notice or hearing. The Illinois dependency law did not recognize such a parent’s interest in his illegitimate children. Upon their mother’s death, such children became wards of the state. The United States Supreme Court held that the unwed father’s 14th amendment due process and equal protection rights were violated.

Having determined that an unwed father is entitled to proper notice and a hearing in proceedings to terminate parental rights, we now must determine whether or not such notice was afforded Matthew in the instant case. Rule 13, Alabama Rules of Juvenile Procedure, provides that: “service of summons shall be pursuant to the Alabama Rules of Civil Procedure except as hereinafter provided.” Service was attempted on Matthew Shuttleworth under Rule 4.1(c)(2). That section reads as follows:

.How Served. The clerk in that event shall place a copy of the process and complaint or other document to be served in an envelope and shall address the envelope to the person to be served with instructions to forward. He shall affix adequate postage, and place the sealed envelope in the United States mail as certified mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery and address where delivered. When the person to be served is a natural person, the clerk shall also request restricted delivery, unless otherwise ordered by the court. The clerk shall forthwith enter the fact of mailing on the docket sheet of the action and make a similar entry when the return receipt is received by him.

The Committee’s comment on Rule 4.1(c) provides that:

When the person to be served is a natural person, the clerk must require “restricted delivery” since this method of delivery has superseded the earlier provision for “deliver to addressee only.” See Postal Bulletin 21023, February 13, 1975. Under the Regulation, this type of delivery is defined as follows:
Restricted Delivery provides a means by which a mailer may direct that delivery be made only to the addressee or to an agent of the addressee who has been specifically authorized in writing by the addressee to receive his mail. This service is available only for articles addressed to natural persons specified by name. ... ” Postal Service Manual, Sec. 165.31, February 7, 1975.

Clearly, the provisions of Rule 4.1(c)(2) were not complied with. The summons was not delivered to Matthew. He did not sign for it, and did not authorize his father as agent to receive it. Rule 4.1(c)(2), A.R.C.P., introduced a new concept allowing service within the state by certified mail. We require strict compliance therewith. Matthew was under the impression he would be served in the old way by the sheriff or his deputy knocking on his door. The least he should be entitled to is that the innovative change would be strictly complied with.

In O’Donohue v. Citizens Bank, 350 So.2d 1049 (Ala.Civ.App.1977), the Court of Civil Appeals had the occasion to construe the twin of Rule 4.1(c)(2), A.R.C.P.—Rule 4.1(b)(2). Rule 4.1(b)(2) provides:

As an alternative to delivery by the sheriff, process issuing from any court governed by these rules may be delivered by the clerk to any person not less than eighteen years of age, who is not a party and who has been designated by order of the court to make service of process.

In the O’Donohue case, service of summons was made by the plaintiff’s lawyer, although he had not been designated by order of the court to make such service. On a motion to quash service because of this defect, the court then appointed plaintiff’s attorney, thereby purportedly ratifying the attorney’s previously illegal action. The Court of Civil Appeals held Rule 4.1(b)(2), A.R.C.P., must be strictly complied with and reversed and remanded the case. We agree its decision in O’Donohue was proper, and it is in accordance with our resolution of the service problem in this case. Likewise, Rule 4.1(c)(2) must be strictly complied with. Having said all of this, we could stop here, reverse and remand the case, and leave dangling a very emotionally sensitive issue, as well as the future hopes and aspirations of several individuals, including a 21-month old infant.

It now has been one year since the Family Court overruled Matthew and Deborah’s Rule 60(b) motion.. Compared with other judicial systems, our courts can be complimented for their efficiency in processing actions. However, from the point of view of the interested parties the time must have seemed interminable. It appears from the record that the Family Court, in entertaining the Rule 60(b) motion, in effect, held a second, but more protracted custody hearing. Although Matthew and Deborah had requested the foster parents’ presence at the hearing, the court declined to join them. There is no testimony whatsoever as to the fitness of the foster parents to have custody of Mary Ann. On the other hand, there is abundant testimony as to the fitness of the petitioners, buttressed with the support of their very fine parents and their financial incomes.

The best interest of the child is the fundamental concern of the court in every child custody case. However, where there are conflicting claims between parents and non-parents and the parents are deemed by the court to be fit and proper persons, the primary right to custody is with the parents. Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939); Pendergrass v. Watkins, 383 So.2d 851 (Ala.Civ.App.1980). This court also has said that “the right of a parent, the mother or the father, to the custody and control of a child must not be concluded by one unbecoming or immoral act.” Whitten v. Whitten, 214 Ala. 653, 654, 108 So. 751 (1926). The right of natural parents to have the custody of their offspring comports with the natural tendencies of our society. This in no way is meant to disparage the love and affection that non-natural parents have given to their adopted children. The family unit is the basic foundation of our society. There are forces at work which attempt to tear it asunder. It is the duty of the courts to forge chains that will bind that unit together. Although Deborah, in her illness and confusion, sought to give away her child (she thought temporarily), she now sees, as Matthew has always seen, it is their duty to love, care for, and bring up their child and hopefully other children in a manner which will make them decent and respected citizens of this state and nation. Her mistake may have been due to over reliance on Ms. Dinwitty or misunderstanding her. The court, likewise, may have been led astray by representations and statements made by Ms. Din-witty, whether made with improper purpose or innocently. Out of the fires of adversity, strong personalities are molded. Their willingness to push forward in this litigation is indicative that they have developed the trait of perseverence.

However, we are unwilling to adjust the delicate balancing of these principles as they mesh in the factual situation that may exist with the persons involved at the present time. The trial court is peculiarly suited to perform this task. For these reasons, the judgment of the Court of Civil Appeals is due to be reversed and the cause is remanded to the Court of Civil Appeals with directions to reverse the judgment of the Family Court of Jefferson County and require it to hold a hearing to determine the parental rights of the petitioners in the light of the principles set forth in this opinion. The Family Court is also to determine if there has been a valid waiver of rights made by the petitioners.

REVERSED AND REMANDED WITH DIRECTIONS.

FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., concurs in the result.

MADDOX, J., not sitting.

ON APPLICATION FOR REHEARING

TORBERT, Chief Justice

(concurring in the result and in the denial of rehearing).

I concur in the decision of the Court to remand this case for a determination by the trial court of whether the natural father knowingly consented to the adoption of the child, or otherwise waived his right to object. I believe that this is the sole question to be dealt with by the trial court. While the agencies involved may be called upon to defend their actions, I believe that the adoptive parents must remain anonymous.

      . The petition for certiorari was filed in this court under the name Matthew Alen Shuttle-worth, although the case in the Court of Civil Appeals was styled Matthew Alan Shuttle-worth.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    In the Matter of Mary Ann (Matthews) KELLEY, Matthew Alan Shuttleworth, Father and Deborah Ann Kelley, Mother v. LICENSED FOSTER PARENTS, et al.
    Civ. 2468.
    Court of Civil Appeals of Alabama.
    Feb. 24, 1982.
   On Remand From the Supreme Court.

WRIGHT, Presiding Judge.

Whereas rehearing in this matter was denied by the supreme court, 410 So.2d 896 on February 5, 1982, and the cause remanded to this court; and

Whereas, the supreme court by opinion dated October 2, 1981, did reverse the opinion and judgment of this court, 410 So.2d 894 entered December 10, 1980, and remand the cause to this court with directions;

In accordance therewith, it is therefore the order of this court that our original judgment herein is set aside and judgment is hereby entered reversing the judgment of the Circuit Court of Jefferson County, Alabama, entered August 1, 1980, in civil action CV-JU-80-5042, and remanding the matter to that court with direction to forthwith hold further hearings as set out in paragraph last of said opinion of the Alabama Supreme Court.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    James H. CAVER v. Rhonda Manning CAVER.
    Civ. 3054.
    Court of Civil Appeals of Alabama.
    Feb. 24, 1982.

      W. Clarence Atkeison and Kenneth Shinbaum, Prattville, for appellant.
    Elno A. Smith, Jr. of Smith, Cruse & Perdue, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

In the stating portion of her complaint, the wife alleged the ages and residency of the parties, that they were married and had no children, that an incompatibility of temperament exists between them, that she needs pendente lite support, and that the wife is without sufficient funds to pay her attorney but that the husband is financially capable of contributing for her legal services. Only the following relief was requested: a divorce, that the husband pay the wife’s attorney fees and the court costs, that her maiden name be restored to her and for general relief.

Her motion for pendente lite support was denied.

The complaint was served upon the husband, and, upon his failure to appear and plead, a default was entered against him. In the wife’s testimony by written interrogatories, she stated that the parties owned a 1980 Pontiac automobile, which she considered to be her car, and that she had paid the last four installments upon that vehicle’s debt. The circuit court rendered a final divorce judgment which taxed her with the court costs and restored her maiden name to her. It also contained the following relief which is now questioned: It granted the 1980 vehicle to her, made the husband “responsible for said payments” and rendered judgment against him for $893.88 for the preceding four monthly auto installments which the wife had paid.

The husband promptly filed a Rule 59 motion to set aside the final default judgment on the primary ground that the relief which was granted which related to the vehicle and its past and present indebtedness was different in kind and exceeded the relief which the wife prayed for in her demand for judgment in her complaint or as was alleged in that pleading.

A timely appeal has been taken by the husband from the judgment of the trial court which denied his motion. In that judgment, the circuit court stated that, in its opinion, the prayer for general relief properly placed in issue not only the status of the marital relationship itself but also the property rights and obligations of the parties in those possessions acquired during the course of the marriage, the automobile in question having been so obtained jointly by the parties. Accordingly, it was determined that A.R.C.P. Rule 54(c) did not preclude the judgment which was rendered.

Rule 54(c) provides as follows:

(c) Demand for judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

Only the first sentence of that rule is presently in controversy. Since this case involves a judgment by default, the rule’s second sentence has no application by its expressed provisions. Hence, the only case as cited by the wife to this court, Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (1975) has no pertinence since it was based upon the latter portion of Rule 54(c) and upon Rule 15(b). Awad did not concern a default judgment and the matter of the unrequested relief had been impliedly tried by consent.

The case of Northcutt v. Northcutt, 262 Ala. 98, 77 So.2d 336 (1954), was decided prior to the adoption of the A.R.C.P. There, that court was only deciding that, upon a collateral attack, a divorce decree would be allowed to stand although it granted permanent alimony as an incident to a bill for a divorce under a prayer for general relief although no prayer was made in the complaint for such specific relief. It was an answer and waiver case and did not involve a judgment by default. The court made it crystal clear that it was not dealing with a direct attack upon a judgment through a timely appeal but was solely concerned with a collateral attack upon the judgment.

We similarly strongly stress that we are concerned only with a direct attack upon the judgment and not with a collateral attack thereon.

The committee comments concerning the first sentence of Rule 54(c), stated that it is based upon the fundamental unfairness of giving greater or different relief in a judgment from that of which the defendant was given notice by the complaint in cases where he does not appear and defend against the action.

We have located only one Alabama opinion which construes a Rule 54(c) default case, Continental Casualty Company v. Barter, 55 Ala.App. 441, 316 So.2d 690 (1975). There, the complaint which was served upon the defendant claimed $2,500 as damages, but the default judgment was for $2,856. This court held that the trial court had no authority to render its default judgment since it was entered for an amount exceeding that claimed in its original complaint, it being stated therein, “It is obviously the purpose of the rule that a defendant after being served with a complaint and determining not to appear and defend, not be found liable after default for a different offense or amount of damages than that originally charged.”

Although the second sentence of Rule 54(c) is therein involved, the following language from Carden v. Penney, 362 So.2d 266 (Ala.Civ.App.1978) may be utilized when construing the first sentence of the rule:

Accordingly, logic dictates that in those situations where an opposing party has no notice, by pleadings ... regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. (Cite omitted.)

362 So.2d at 269.

A party should have the right to assume that a court’s judgment following his default will not extend beyond the issues presented by the complaint and the relief requested therein. He is deprived of his day in court if a default judgment is taken against him which neither comports with the issues stated nor. with the relief sought. In a judgment-by-default divorce case, before a disposition of property, or the payment of debts may be granted or ordered, those issues should be reasonably disclosed by a fair reading of the complaint therein either in the statement of the claim or in the demand for judgment. While we have notice pleadings, they must at least give notice. A litigant should be able to reasonably glean somewhere from the complaint which is served upon him that his spouse is seeking a property settlement and the payment of debts by him. Pleadings must claim relief or allege facts which are sufficient to give notice of the desire for such a property award or for the payment of debts before a judgment by default may render such relief. Where such notice is neither demanded in nor disclosed by the pleadings, the awarding of such relief in a divorce judgment by default is erroneous, and it is subject to a direct attack through a timely appeal.

We reverse and remand.

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

REVERSED AND REMANDED.

All the Judges concur.


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    In the Matter of James Ronald CARTEE.
    Civ. 3057.
    Court of Civil Appeals of Alabama.
    Feb. 24, 1982.
    Thomas Troy Zieman, Jr. of Miller, Hamilton, Snider & Odom, Mobile, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an involuntary commitment order rendered November 17, 1981, by the Mobile County Probate Court against James Ronald Cartee. The cause arose under the following pertinent facts:

Curtis Cartee petitioned for involuntary commitment of his brother Ronald, appellant herein, on October 14,1981. A guardian ad litem was appointed for appellant. On the date of the first scheduled “probable cause” hearing, Ronald was unavailable, and the hearing was continued to October 22, 1981. Once again Ronald had not been served and was not present. The hearing was reset for November 10, 1981. After the continuance on October 22, Curtis Car-tee signed a criminal complaint against his brother, apparently for the purpose of causing his arrest and insuring his presence at the hearing. As a result, Ronald was arrested and spent four and one-half days in the county jail prior to the November 10, 1981, “probable cause” hearing.

At that hearing, the probate court found “probable cause” and ordered that appellant be taken to the psychiatric ward of the University of South Alabama Medical Center in Mobile. He was there examined by a clinical psychologist and found to be a “paranoid schizophrenic with acute exacerbation.” Following a hearing on the merits on November 17, 1981, the probate court found that:

“Both sides having rested, the Court finds that James R. Cartee is psychotic; that there is treatment available for his condition; that confinement is the least restrictive alternative available; that he has committed overt acts. The Sheriff’s office will be directed to take him up to the hospital at Mount Vernon.”

From that order Ronald appeals through his guardian ad litem, Thomas Troy Zie-man, Jr., and does so in forma pauperis.

The evidence admitted in the probate court revealed the following:

Ronald Cartee is forty years old and a former air traffic controller now on disability. He lives in his own apartment and takes care of his personal needs. At times he appears to have worn the same clothes for several days. In the six months prior to the hearing, he told his brother that he and his oldest stepson, living in New Orleans, had agreed to meet on a street in Mobile for a “fight to the death.” If he won the fight, the mayor of Mobile would be there to give him the keys to the city. He wanted his brother to be present and share in his awards. On occasions he tried to get his brother Curtis to “go partying” with him and on one occasion challenged his brother to fight when he refused. He told his brother that he was “really going to pay now.” His brother testified that Ronald “acted hostile” toward him and his wife as well as their mother and sister. Such hostility was apparently verbal and attitudinal and not exhibited through overt acts. Ronald also made strange remarks.

Section 22-52-10 Code (1975) clearly sets out the findings of fact required for involuntary commitment. The findings must be based on “clear, unequivocal and convincing evidence.” The required findings are:

(a) (1) That the person sought to be committed is mentally ill; and
(2)That as a consequence of the mental illness the person poses a real and present threat of substantial harm to himself or to others; and
(3) That the threat of substantial harm has been evidenced by a recent overt act; and
(4) That treatment is available for the person’s mental illness or that confinement is necessary to prevent the person from causing substantial harm to himself or to others; and
(5) The commitment is the least restrictive alternative necessary and available for treatment of the person’s mental illness.. ..
(b) If any such element be unproved, the probate judge shall deny the petition and discharge the subject of the petition sine die... .

The probate court’s order tracked the Code provision almost verbatim. The issue on appeal is whether the evidence relied on to support those findings was “clear, unequivocal and convincing.” We find the evidence presented to show that appellant posed a “real and present threat of substantial harm to himself or to others” (especially as “evidenced by a recent overt act”), failed to meet the standard of “clear, unequivocal and convincing” required by the statute. The ore tenus rule does not save the judgment because the undisputed facts do not meet the high requirements of the statute as a matter of law.

The burden of proof for involuntary commitment in Alabama is indeed a heavy one, and is higher than has been required constitutionally for due process purposes. See, Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). However, as we noted in Walker v. Dancer, 386 So.2d 475 (Ala.Civ.App.1980) “our legislature has spoken and we are without authority to alter the statute since states may include, but are not required to adopt, the higher ‘unequivocal’ standard.” 386 So. at 478. The evidence considered in the probate court fails to meet that standard. See, Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974).

Since the evidence is insufficient to meet the “clear, unequivocal and convincing” standard, this cause is due to be reversed.

In accordance with §§ 22-52-14, 15 and the request of attorney for James Ronald Cartee for a grant of attorney’s fee on appeal, a fee of $300 is hereby awarded and assessed against petitioner, Curtis Cartee, together with all costs. This matter is reversed and remanded to the probate court of Mobile County for consideration of assessment of an attorney fee for the appointed attorney for the services performed in that court and any other matter properly brought before the court.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY, J., concurs.

HOLMES, J., concurs specially.

HOLMES, Judge

(concurring specially).

The majority is undoubtedly correct in its conclusion that the appellee failed to meet the burden of proof as set out in section 22-52-10. Consequently this court has no choice but to reverse and I concur in the reversal. I differ from the majority, however, in that I believe this case requires more than a mere reversal. It is my position that the case should be reversed and remanded to the probate court for a determination based upon the considerations *as elucidated below.

This special concurrence is spawned by the probate court’s refusal to allow testimony of events which occurred more than six months prior to the hearing. Apparently the probate court was of the opinion that this limitation was required by the word “recent” as used in section 22-52-10(a)(3). I have been, however, unable to find any language in the statute or cases which requires such a limitation on the taking of evidence in involuntary commitment proceedings.

I will first consider the statute itself. The language used in section 22-52-10 is taken almost verbatim from the opinion of the United States District Court in Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974). In discussing the recent overt act requirement the court stated:

To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has actually been dangerous in the recent past and that such danger was manifested by an overt act, attempt or threat to do substantial harm to himself or to another.

386 F.Supp. at 391. The court made no attempt beyond the quoted language to explain oh define “recent.”

It is not surprising that the federal district court failed to define “recent” for few courts have attempted to formulate a concise definition of “recent.” In an early case our supreme court said that “recent” is “incapable of exact or precise definition.” White v. State, 72 Ala. 195, 200 (1882). Instead of defining “recent,” most courts have simply described “recent” as a relative term whose exact definition depends upon the facts and circumstances of each separate case. White v. State, supra; Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977); State v. Sharp, 174 Kan. 672, 258 P.2d 306 (1953); State v. Giordano, 121 N.J.L. 469, 3 A.2d 290 (1939). Absent a consideration of the facts and circumstances of each separate case, “recent” has no meaning.

The six month limitation on receipt of evidence that was imposed by the probate court in this case is not consonant with the law as discussed above. The six month limitation was an attempt by the probate court to define “recent” without considering the totality of the circumstances. I would thus remand the case to the probate court to allow the parties to introduce further pertinent testimony, if any exists, of events or actions which occurred beyond the six month limitation. With the full circumstances of the case before it, the probate court may then properly determine if the appellee has met his burden of proof under section 22-52-10, particularly whether “the threat of substantial harm has been evidenced by a recent overt act.”

I emphasize that I do not mean to say that an act or event which occurred seven months, or eight months or even four months prior to the hearing is necessarily recent as contemplated by the statute. All I mean to say is that what acts or events are “recent” as contemplated by the statute can be determined only after considering the facts and circumstances of the case in their entirety.

I would further note that, to me, the record clearly reveals the appellant is mentally ill and is in need of treatment. Upon proper consideration by the probate court perhaps appropriate treatment will be forthcoming.

      . Due to the requirement of a recent overt act in the statute, the probate court refused to allow testimony of events more than six months prior to hearing.

      . In Lynch v. Baxley the federal district court held that Alabama’s prior involuntary commitment statute was unconstitutional.


author: TYSON, Judge.

text:
    Benny HAMMONDS v. STATE of Alabama.
    3 Div. 313.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Robert E. Sasser and John T. Alley, Jr., of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Benny Hammonds’ indictment in this cause reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment,
BENNY HAMMONDS,
whose name is to the Grand Jury otherwise unknown, did, with the intent to commit the crime of Murder (Section 13A-6-2 of the Code of Alabama) attempt to commit said offense, in violation of § 13A-4-2 of the Code of Alabama,
against the peace and dignity of the State of Alabama.”

The appellant, subsequently, filed a “plea in abatement” (R. 191), a “demurrer” (R. 193), and a “motion to quash” (R. 195), each challenging the sufficiency of the indictment on seventeen identical grounds including the assertion that “[t]he indictment fails to adequately apprise the Defendant of what he must defend against.”

The trial court treated these challenges to the indictment as a “demand for a bill of particulars” (R. 202) by appellant, and ordered that the name of the alleged victim, the time and place of the alleged offense, the instrument involved in the offense, and appellant’s alleged involvement in the offense be specified by the state. These details were supplied by the state in its “answers to the court’s, order.” (R. 200-201).

Appellant was tried for “attempted murder” and found guilty of “first-degree assault.” The trial court sentenced appellant to seventeen years’ imprisonment.

Appellant’s motions to exclude the state’s evidence, for a directed verdict, and for a new trial were denied.

Because of our opinion on the challenge to this indictment, we pretermit consideration of the weight and sufficiency of the evidence in this cause.

I

The issue here presented is whether or not the trial court erred in treating appellant’s demurrer to the indictment as a demand for a “bill of particulars,” and in allowing the trial to proceed based on the state’s answers thereto.

[i] The state conceded during oral argument on this appeal, and we agree, that the indictment in this case was insufficient as a matter of law because it failed to apprise this appellant of the charges against him. The often quoted case of Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1977), concisely states the Alabama rule with reference the due process requirements for a sufficient indictment:

“The constitutional right of an accused to demand the nature and cause of the accusation against him is not a technical right, but is fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense.
“An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.”

It is clear from the record that this indictment fails to meet these requirements. The indictment charges an “attempted murder” by this appellant but does not identify the incident from which this charge arises. The indictment fails to specify the victim, the date, the means of perpetrating the crime or appellant’s involvement therein. Although these facts are not always essential, at least some further specification of the offense charged was necessary in this instance.

There was evidence to show that this appellant had been involved in at least three separate incidents which might have been the subject of this particular indictment. On one occasion the brake lines on appellant’s wife’s automobile were cut, but no injuries resulted therefrom. On a second occasion, the brake lines of an automobile owned by.Ealon Hardee were cut, and again no injury resulted. Both of these “brake line” incidents occurred before January 1, 1980, the effective date of the new Alabama Criminal Code. The third incident was the shooting during which Ealon Har-dee, the woman with whom appellant’s wife was staying, received gunshot wounds to the arm and abdomen. This incident occurred after the effective date of the new Code. It was alleged at trial that this appellant was an active participant in the first two incidents, but that he merely solicited the services of the gunman in the alleged shooting incident.

On the face of this indictment, there is no way to determine with which of these three possible offenses (or some other offense not apparent from this record) that the grand jury charged this appellant.

The able trial judge recognized this deficiency in the indictment and in the interests of expediency and economy and fair play, treated appellant’s demurrer thereto as “a demand for a bill of particulars” and ordered that the state specify the facts necessary to inform appellant of the particular charge against him. The state complied with the order and identified the latter incident, i.e., the shooting of Ealon Hardee, as the subject of the “attempted murder” indictment.

The appellant contends as a matter of law that the trial court had no authority to treat the demurrer as a demand for a “bill of particulars.” Appellant notes that, as a practical matter, the effect of the post-indictment identification by the state was an amendment to the indictment without appellant’s consent. (See § 15-8-91, Code of Alabama 1975, for the proper course of action when the defendant does not consent to an amendment.) As a result this appellant was called to answer the prosecution’s interpretation of the offense charged in the indictment rather than the charge “intended by the grand jury." Summers v. State, supra.

We agree that, in this instance, this indictment was not curable without appellant’s consent. The indictment failed to “identify the accusation” against the appellant and thereby violated his right to due process. Gayden v. State, 262 Ala. 468, 80 So.2d 501 (1955), and cases therein cited; Summers v. State, supra; Andrews v. State, 344 So.2d 533 (Ala.Cr.App.), cert. denied, 344 So.2d 538 (Ala.1977); Harrison v. State, 384 So.2d 641 (Ala.Cr.App.1980). For aught that appears in the record and on the face of the indictment, itself, the appellant was “tried for an offense different from that intended by the grand jury.” Authorities cited.

In some situations a defendant may not be injured by an insufficient indictment if he “otherwise obtains the details” necessary for his defense. Manson v. State, 349 So.2d 67 (Ala.Cr.App.), cert. denied, 349 So.2d 86 (Ala.1977). In other jurisdictions a “demand for a bill of particulars” is an accepted method for “otherwise obtaining details.” See United States v. Haas, 583 F.2d 216 (5th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979), and cases therein cited. However, this practice has never been “accepted” in Alabama. Gayden v. State, supra; Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973) (dissenting opinion); Danley v. State, 34 Ala.App. 412, 41 So.2d 414 (1949); Johnson v. State, 335 So.2d 663 (Ala.Cr.App.), cert. denied, 335 So.2d 678 (Ala.), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976); Andrews v. State, supra.

Moreover, where it is used, the function of the “bill of particulars” is to supply the details of an already specified offense to enable the defendant to prepare his case. See United States v. Haas, supra. Such a procedure should not be used (absent the defendant’s consent) to identify the offense charged when the grand jury has failed to do so in the indictment.

We do appreciate the trial court’s interest .in judicial economy; however, since we have found the indictment to be fatally defective, in order to afford this appellant due process of law, we must reverse this judgment and sentence below, and remand this case to the trial court for further action not inconsistent with this opinion. We do so without comment on the merits of the possible charges that might be brought against this appellant and without comment on the other issues raised on this appeal, including any aspect of the evidence in this cause.

REVERSED AND REMANDED FOR A NEW TRIAL.

HARRIS, P. J., and DeCARLO and BOWEN, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Dennis Edward WILLIAMS v. STATE.
    8 Div. 573.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.

      James E. Smith, III and J. Michael Tanner, Sheffield, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was indicted and convicted for the February 2, 1980, murder of Robert Washington. The trial court fixed his punishment at thirty years’ imprisonment. At arraignment and throughout the trial proceedings, appellant was represented by counsel of his choice. After sentence was imposed he gave notice of appeal and was found to be indigent. He was appointed counsel to represent him on appeal and furnished a free transcript.

Appellant does not challenge the sufficiency of the state’s evidence. We have completely and thoroughly reviewed the state’s evidence and find it to have presented a prima facie case of murder. § 13A-6-2, Code of Alabama (Amended 1977). Further, the state’s evidence fully supports the verdict of guilty. Thus, only a brief narration of the facts is necessary.

On February 1, appellant and his wife attended a social gathering at the Sheffield home of Elizabeth Smith. Several couples were in attendance. During the course of the evening, appellant and two others drove to Florence. While gone, the victim and his date arrived. Shortly thereafter a heated and lengthy argument began between the victim and appellant’s wife.

When appellant returned, he was greeted in the front yard by his wife and the victim. Several others looked on as Mrs. Williams told appellant of the victim’s advances toward her. From a distance between two and six feet away, appellant shot the victim with the bullet piercing several organs before exiting from his back. The victim ran away and was found dead early the next morning. The state’s evidence established without a doubt that appellant shot and killed the victim.

Appellant presented evidence to support his defense of self-defense. He attempted to establish that the victim was the aggressor and had initially drawn and fired a pistol at him.

Appellant contends that he was not present in court when the jury venire was qualified and his jury selected. Thus, he argues that such constituted reversible error.

The judgment entry reflects that appellant was present during this stage of the trial proceedings. Further, a question directed to the venire by the district attorney indicated the presence of appellant. No statement was made by the trial court indicating appellant’s presence or absence.

No hearing of any type was held below to determine the legitimacy of appellant’s contention, nor was any objection or motion made to invoke a ruling from the trial court. No motion for a new trial was filed raising the above contention. Thus, there is nothing preserved for our review. Boykin v. State, Ala.Cr.App., 398 So.2d 766, cert. denied, Ala., 398 So.2d 771 (1981); Brown v. State, Ala.Cr.App., 392 So.2d 1248 (1980), cert. denied, Ala., 392 So.2d 1266 (1981).

Nevertheless, a review of the record leads us to the opposite conclusion than that reached by appellant. Merely because no statement by the trial court indicating appellant’s presence at this time appears in the record, such, when viewed in conjunction with the remainder of the record, is insufficient to mandate reversal of this cause. See Durden v. State, Ala.Cr.App., 394 So.2d 967 (1980), cert. denied, Ala., 394 So.2d 977 (1981).

Appellant argues that the trial court erred in allowing the jury to separate without initially personally inquiring of him as to whether he desired such.

The record reflects that the trial court questioned appellant’s retained counsel as to whether the jury could separate, to which his counsel affirmatively replied. At that point the trial court instructed appellant’s counsel, “Okay, I need it in writing from the defendant.” Appellant’s counsel acknowledged the court’s request and furnished it a handwritten statement, apparently signed by appellant, to that effect. No objection or motion was made below to such procedure nor was there any hearing of any type raising the alleged error.

In three of the cases cited by appellant in support of reversal, we note that the alleged error was preserved by the securing of an adverse ruling. The other authority cited by him does not support his contention.

We find that appellant failed to properly preserve the alleged error for review. Caldwell v. State, Ala.Cr.App., 393 So.2d 499 (1981); Pope v. State, Ala.Cr.App., 387 So.2d 300 (1980); Ragland v. State, Ala.Cr.App., 383 So.2d 897 (1980); Hare v. State, Ala.Cr.App., 377 So.2d 1143, cert. denied, Ala., 377 So.2d 1148 (1979); Barton v. State, Ala.Cr.App., 376 So.2d 756, cert. denied, Ala., 376 So.2d 761 (1979); Woods v. State, Ala.Cr.App., 346 So. 9, cert. denied, Ala., 346 So.2d 10 (1977); Arnold v. State, Ala.Cr.App., 340 So.2d 873, cert. denied, Ala., 340 So.2d 877 (1976); Cooper v. State, Ala.Cr.App., 340 So.2d 871, cert. denied, Ala., 340 So.2d 872 (1976); Hill v. State, Ala.Cr.App., 339 So.2d 601, cert. denied, Ala., 339 So.2d 610 (1976); Armstead v. State, 57 Ala.App. 459, 329 So.2d 150, 151 (1976); Turner v. State, 54 Ala.App. 467, 309 So.2d 503 (1975).

Appellant contends that the trial court erred in denying his motion for a mistrial based on juror misconduct.

After an overnight recess, appellant made his motion arguing that a local newspaper article which appeared in the previous evening’s edition, if read by the jury, would prejudice it against him. The trial court noted that the article contained several inaccuracies. It found that six members of the jury had seen the article. The trial court questioned the jurors as to whether they could “continue to listen to the evidence . .. and be impartial and fair and base [their] verdict ... on the testimony . . . and completely eliminate and disregard what [they had] read in the paper.” The jurors responded in the affirmative. The trial court instructed the jurors:

“I want to instruct to you that anything that you read in the paper is not evidence and I do know for a fact that they had mistaken information because they said [Judge] N. Pride Tompkins was trying the case and I am trying the case. So, I don’t know where they get their information from, but I know it was wrong and I ask that you disregard this — it’s not evidence in this case and it should not be considered by you as such in this case and you are to completely disregard it from your deliberations when you go in to deliberate this case. At night when you go home, please do not read the paper and do not listen to the radio. Do not listen to anything that might be on as far as this is concerned.”

The granting of a mistrial rests within the sound discretion of the trial judge, and his ruling thereon will not be overturned absent a clear abuse thereof. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Lewis v. State, Ala.Cr.App., 399 So.2d 907 (1981); Terry v. State, Ala.Cr.App., 397 So.2d 217, cert. denied, Ala., 397 So.2d 223 (1981). Whether vel non the reading of the newspaper article has influenced the jury to the detriment of appellant is a question of fact to be determined by the trial court in the exercise of its sound discretion. See generally, Cox v. State, Ala.Cr.App., 394 So.2d 103 (1981).

We find no abuse of the trial court’s discretion in overruling appellant’s motion. Its action in swiftly and professionally isolating the potential problem, inquiring as to its possible influence upon the jurors, and its prompt instructing and polling of the jury insured that no prejudice to appellant was suffered. Thus, we find no error in the trial court’s actions.

Lastly, the appellant contends that the trial court erred in giving additional instructions regarding the defense of self-defense.

After the jury had been charged, to which no exception was taken, sent to deliberate, and excused for lunch, the state requested an additional charge to cover an omission made by the trial court during its oral charge. The trial court’s oral charge on self-defense included all the applicable portions of § 13A-3-23, Code of Alabama (Amended 1977), except subsection (c). The trial court stated that it had mistakenly omitted that portion from its charge and overruled appellant’s objection. Upon returning from lunch, the jury was recharged on the defense of self-defense as before as well as given the omitted instruction.

It is the duty of the trial judge to fully and correctly state the law of the case to the jury. Cole v. State, Ala.Cr.App., 352 So.2d 17, cert. denied, Ala., 352 So.2d 20 (1977). See generally, Gibson v. State, Ala.Cr.App., 387 So.2d 325 (1980). Such is required to insure a fair trial and just verdict for appellant and the state.

In the instant case, we find no error in the trial court’s adding to its original charge to the jury. The addition was applicable under the facts and a proper statement of the law. No undue emphasis was placed on the omitted portion as it was included in the complete charge on self-defense re-given by the trial court. Further, the trial court admonished the jury not to place any special significance or importance on the portion of its oral charge that it re-gave. Consequently, we find no error in the actions of the trial court.

Having found no errors in the record, the judgment of conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: ALDERMAN, Justice.

text:
    Mary DAVIS and Jack Davis, her husband, Petitioners, v. Mollie MANDAU, Billy H. Bryant, Paul F. Dicken, Rocks & Stones, Inc., Biff-Burger of Clewiston, Inc., National Biff-Burger, Clewiston Builders, Inc., Swindle Bros. Dragline & Paving, and Donald R. Evans d/b/a Evans Plumbing & Supply Co., Respondents.
    No. 60999.
    Supreme Court of Florida.
    Dec. 3, 1981.
    Rehearing Denied March 10, 1982.
    Michael D. Felton of the Law Offices of David H. Zoberg, Miami, for petitioners.
    Andrew D. Owens, Jr. of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for Mandau, Bryant, Dicken, Rocks & Stones, Inc. and Biff-Burger of Clewiston, Inc.
    Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for Nat. Biff-Burger.
    Jack J. Rafter, Jr., Clewiston, for Clewi-ston Builders, Inc. and Swindle Bros. Drag-line & Paving.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for Evans.
   ALDERMAN, Justice.

The District Court of Appeal, Second District, in Davis v. Mandau, 400 So.2d 89 (Fla.2d DCA 1981), affirmed in summary fashion the trial court’s entry of summary judgment for respondents but decided that the trial court erred in entering a cost order in favor of respondent Evans to the extent that it taxed the costs of depositions. The district court then certified that the portion of its decision relating to the award of costs for depositions conflicts with several decisions. Evans, against whom this decision was made, has chosen not to seek review of the district court’s decision. Rather, petitioners, who prevailed on this point in the district court, now seek review of the district court’s decision on an entirely different basis. They argue that the district court erred in affirming the summary judgments in favor of appellees and attempt to demonstrate conflict of decisions on this point.

In Petrik v. New Hampshire Insurance Co., 400 So.2d 8 (Fla.1981), where the question certified was not brought to us for review, we held that we did not have jurisdiction to review other issues. In the present case, where the conflict certified has not been brought to us for review, we likewise do not have jurisdiction. Furthermore, the district court’s decision on the summary judgment issue was effectually an affirmance without opinion with which express and direct conflict cannot be established. Jenkins v. State, 385 So.2d 1356 (Fla.1980).

Accordingly, the petition for review is dismissed.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., “concur.

ADKINS, Acting C. J., dissents.


author: McDONALD, Justice. ALDERMAN, Justice,

text:
    Ronald Anthony CUCIAK, Petitioner, v. STATE of Florida, Respondent.
    No. 60294.
    Supreme Court of Florida.
    Jan. 21, 1982.
    Rehearing Denied March 24, 1982.

      Richard L. Jorandby, Public Defender and Jon May, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   McDONALD, Justice.

The Fourth District Court of Appeal has certified the following questions to be of great public importance:

I. IS A DEFENDANT IN A VIOLATION OF PROBATION PROCEEDING ENTITLED TO FULL DISCOVERY UNDER THE FLORIDA RULES OF CRIMINAL PROCEDURE?
II. IF DISCOVERY IS AVAILABLE IN A VIOLATION OF PROBATION PROCEEDING, IS A RICHARDSON INQUIRY REQUIRED AS TO NONCOMPLIANCE?

Cuciak v. State, 394 So.2d 500, 504 (Fla. 4th DCA 1981).

We hold that a defendant in a probation revocation proceeding is entitled to reasonable discovery pursuant to Florida Rule of Criminal Procedure 3.220. We further hold that an inquiry pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), should be made by the trial court when a violation of the discovery rules occurs, but the failure to make such an inquiry does not require reversal when an appellate court finds to its satisfaction that the error was harmless.

Ronald Cuciak pled guilty to burglary in February 1979 and received three years probation with adjudication of guilt withheld. The following April he was involved in a hit-and-run accident, and the state filed an affidavit for violation of probation. Shortly after the filing of the affidavit, Cuciak’s defense counsel filed a written demand for discovery pursuant to Florida Rule of Criminal Procedure 3.220(a) to which the state never responded.

At the June 1979 probation revocation hearing, defense counsel objected and informed the court of the unanswered discovery demand. Cuciak’s attorney continued to object as each of the state’s four witnesses testified. The court denied all objections, noting that the affidavit named two witnesses and the remaining two were police officers whose names appeared on the accident report. No inquiry was made as to why the state failed to respond to the discovery demand or the resulting possible prejudice to the defendant. The court revoked Cuciak’s probation and sentenced him to state prison.

The Fourth District Court of Appeal affirmed the revocation of probation because Cuciak failed to demonstrate that the lack of discovery was prejudicial to him. The court held that a defendant in a probation revocation proceeding is entitled to discovery but that the failure to hold a Richardson hearing does not require per se reversal. The court also stated that an appellant has the burden of proving prejudice on appeal.

A basic philosophy underlying discovery is the prevention of surprise and the implementation of an improved fact finding process. As Judge Hurley noted in his concurrence, “[l]ong ago we recognized ... that trial by ambush is so unfair as to be viola-tive of due process.” 394 So.2d at 505. Broad discovery rights are given by the Florida Rules of Criminal Procedure, which were designed in large part to effectuate this policy of fairness.

In Hines v. State, 358 So.2d 183, 185 (Fla.1978), this Court stated: “If a probationer needs additional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him.” This decision has been followed in Coby v. State, 397 So.2d 974 (Fla. 3d DCA 1981); Suarez v. State, 377 So.2d 769 (Fla. 3d DCA 1979); and Cioeta v. State, 367 So.2d 718 (Fla. 3d DCA 1979). Fair play and justice require that a defendant in a probation revocation hearing be entitled to reasonable discovery pursuant to rule 3.220.

The framers of rule 3.220 utilized the American Bar Association’s Standards for Criminal Justice relating to discovery and procedure before trial. Discovery requirements are set forth in this standard while the recommendations for revocation of probation proceedings are contained in the standard designated Sentencing Alternatives and Procedures. That standard makes no mention of the use of discovery in preparing for a probation revocation hearing. This appears to be because the standard recommends that a final revocation hearing be held after the disposition of any criminal charges that were the cause of the violation of probation. Pre-revocation hearing discovery would then be unnecessary. We are aware that rule 3.220 contemplates a trial context, but basic fairness requires an extension of discovery into the probation revocation setting.

The district court notes that discovery is not widely used in violation of probation proceedings. 394 So.2d at 501. Most probation violations are also substantive offenses upon which criminal charges can be brought; in those instances the probationer is already entitled to discovery. The right to discovery in probation revocation proceedings will not significantly burden the trial courts because there are fewer instances where the violation of probation is not a substantive offense.

Additionally, we recognize the clear distinctions between a criminal trial and a violation of probation proceeding. A probation revocation hearing is more informal, the charging affidavit need not comply with the requirements indictments and informa-tions must meet, the strict rules of evidence can be deviated from, and the admission of hearsay is not error. Furthermore, there is a lesser burden of proof because only the conscience of the court must be satisfied. This informality highlights the desirability of pre-hearing discovery; the probationer needs the greater accuracy and reliability which discovery affords.

The trial court has the inherent power to decide what is reasonable discovery in a probation revocation proceeding. The state may apply to the judge for a modification of the probationer’s demand for discovery if it becomes too burdensome. At the very least a probationer is entitled to the name and identification of his accusers and other basic information that is reasonably necessary to the preparation of his defense.

The second question certified by the district court is whether a violation of discovery in a probation revocation proceeding requires a Richardson hearing. In Richardson we held that a violation of the rules of criminal procedure by the state requires reversal of a conviction unless the trial court conducts an inquiry into all the circumstances surrounding the breach, with the state having the burden of showing the trial court that the defendant was not prejudiced.

We hold that a trial court is required to make the necessary inquiry regarding possible prejudice to a probationer when the discovery rules are violated. The probationer has the burden of bringing the violation to the court’s attention in a timely manner. We modify the holding of Richardson in revocation hearings by ruling that failure to conduct a Richardson hearing after notification does not require reversal when the appellate court finds to its satisfaction that the error is harmless. Contrary to the district court’s ruling, however, we hold that the burden will remain on the state to prove to the appellate court that the failure to conduct a Richardson inquiry was nonprejudicial.

The trial court did not make an inquiry into the possible prejudice to the defendant in the instant cause. The facts of this case, however, make it clear that there was no prejudice to Cuciak. We agree with the district court’s conclusion that Cuciak had not been prejudiced and approve the result.

It is so ordered.

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

ALDERMAN, J., concurs in result only with an opinion, in which ADKINS, J., concurs.

ALDERMAN, Justice,

concurring in result only.

I concur in the affirmance of the revocation of Cuciak’s probation, but I disagree with the majority’s determination that a defendant is entitled to discovery pursuant to Florida Rule of Criminal Procedure 3.220. As is clear from its language, the strict discovery requirements of this rule were not intended to apply to parole revocation proceedings but rather were intended to apply in the criminal trial context.

The Supreme Court of the United States in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), has held that a probationer in a probation revocation proceeding is not entitled to the full panoply of rights guaranteed a defendant in a criminal proceeding. He is entitled only to minimal due process rights. These minimal rights are written notice of the claimed violation of probation, disclosure of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confrontation and cross-examination of adverse witnesses, a neutral and detached hearing body, and a written statement by the fact finders as to the evidence relied on and the reason for revoking probation. Gagnon v. Scarpelli, 411 U.S. at 786, 93 S.Ct. at 1761.

Although a probationer is entitled to disclosure of the evidence against him, this does not entitle him to utilize Rule 3.220 as a means of enforcing this minimal due process right. Rather, if the probationer can demonstrate that certain vital evidence used against him at the revocation proceeding was not disclosed, he may have a successful claim for violation of his procedural due process right. See Hines v. State, 358 So.2d 183, 185 n. 6 (Fla.1978); Sukert v. State, 325 So.2d 439 (Fla. 3d DCA 1976).

The Supreme Court has recognized that there is no general constitutional right to discovery in a criminal case and that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), did not create such a general right. In Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), the Supreme Court said:

It does not follow from the prohibition against concealing evidence favorable to the accused [Brady] that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably. There is no general constitutional right to discovery in a criminal case, and Brady did not create one; as the Court wrote recently, “the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded ... . ” Wardius v. Oregon, 412 U.S. 470, 474 [93 S.Ct. 2208, 2212, 37 L.Ed.2d 82] (1973). Brady is not implicated here where the only claim is that the State should have revealed that it would present the eyewitness testimony of a particular agent against the defendant at trial.

429 U.S. at 559-60, 97 S.Ct. at 845-16 (emphasis added). Likewise, under the Florida Constitution, there is no general constitutional right of discovery in criminal cases. Prior to the adoption of the discovery rule for criminal cases in Florida, the doctrine of discovery was “a complete and utter stranger to criminal proceedings.” State v. Lampp, 155 So.2d 10, 12 (Fla. 2d DCA 1963), appeal dismissed, 166 So.2d 891 (Fla.1964).

Our decision in Hines v. State does not compel the result reached by the majority. In Hines, we held that a probationer in a revocation proceeding was entitled to the minimal due process requirements delineated by the Supreme Court of the United States in Gagnon v. Scarpelli. We did not say that he was guaranteed discovery pursuant to Rule 3.220 but rather referencing to Sukert v. State, we said that if he needs additional information to prepare a defense to the charges against him, various methods of discovery are available to him under the rules. These various methods include depositions or subpoenas but not strict and formal discovery pursuant to Rule 3.220. In Sukert, the defendant was not complaining that he was denied his discovery rights under Rule 3.220. Rather, Sukert contended that he was denied due process when the State failed to disclose the materials upon which the revocation of his probation was based. On this basis, the Third District held that the probation revocation was arbitrary and unreasonable.

In my view, discovery in the manner prescribed by Rule 3.220 should not be required in probation revocation proceedings. To hold otherwise is tantamount to turning the revocation hearing into a proceeding akin to a criminal trial contrary to the pronounced distinctions between these proceedings. See Bernhardt v. State, 288 So.2d 490 (Fla.1974). As the majority recognizes, the trial court has the inherent power to decide what discovery should be allowed a defendant in a probation revocation proceeding.

I answer the first certified question in the negative and would hold that the defendant in a violation of probation proceeding is not entitled to full discovery under Rule 3.220. Answering the second certified question, if there is to be such an application of Rule 3.220 as the majority advances, I would not extend the per se reversal rule of Richardson v. State, 246 So.2d 771 (Fla.1971), to probation revocation. Instead, consistent with the district court, I would hold that the appellate court should review each case where this issue has been properly raised to determine whether the defendant has in fact been prejudiced. I also would place the burden on the defendant to show prejudicial error.

Viewing his claim under the minimal due process requirements which must be accorded a probationer, I find no violation of due process and concur in the affirmance of the revocation of Cueiak’s probation.

ADKINS, J., concurs.

       The Florida Bar Committee on Criminal Justice may wish to investigate the distinctions between discovery in a criminal trial and discovery in a probation revocation hearing and suggest amendments to the rules of criminal procedure setting forth these distinctions.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Catherine H. CARTER and Brinly S. Carter, Respondents.
    No. 59091.
    Supreme Court of Florida.
    Feb. 25, 1982.
    John F. Harkness, Jr., Executive Director; Stanley A. Spring, Staff Counsel and John A. Weiss, Discipline Counsel, Tallahassee, David G. McGunegle, Bar Counsel, Orlando, John A. Boggs, Branch Staff Counsel, Tampa, and Philip J. Chanfrau, Jr., Chairman, Seventh Judicial Circuit Grievance Committee “A”, Daytona Beach, of The Florida Bar, for complainant.
    H. Rex Owen of Owen & McCrory, St. Petersburg, for Catherine H. Carter.
    Richard T. Earle, Jr. of Earle & Earle, St. Petersburg, for Brinly S. Carter.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar against Catherine H. Carter and Brinly S. Carter, report of the referee, and petition for review by The Florida Bar. The referee recommends and we agree that Catherine Carter be found not guilty on any of the counts charged in the complaint.

As to Brinly Carter, the referee recommends that he be found guilty of counts four and eight charged in the complaint. The referee finds the following as to count four, violation of the Florida Bar Code of Professional Responsibility, Disciplinary Rule l-K^A)©:

Respondent admits that he filed, as attorney, motions to recuse the trial judge in the litigation styled, “Catherine H. Carter v. Mary S. Howarth, Case No. 73-364-01, Division D, Seventh Judicial Circuit Court,” and on November 6, 1975, filed a pleading submitting further argument for Leon F. Stewart to recuse himself (Exhibit No. 29). He admits that statements made in Exhibit No. 29 were derogatory to the Circuit Judge.
BRINLY S. CARTER contends that the motion was not for the purpose of harassment but was an emotional mistake for trying to represent himself in such a personal matter. He does admit that the motion went beyond legal grounds for disqualification and recusal and did violate the Code of Professional Responsibility, Rule 1-102(A)(5).

In recommending that Brinly Carter be found guilty of count eight, violation of Disciplinary Rule 9-102(B)(4) and Integration Rule 11.02(4), the referee finds:

The evidence indicates that the respondent received a check in excess of $3,000 payable to him as attorney for Mary S. Howarth. The check was received prior to the onset of the 1973 litigation and placed in his trust account. After the litigation was instituted, he refused to surrender those funds due and owing to Mary S. Howarth despite her several demands through her attorney for over a year. Only after he was served with a subpoena duces tecum were the monies turned over.
In his answer, BRINLY S. CARTER admitted the allegations specifically set out above.
The Referee finds that Mary S. Ho-warth, having been a former client of BRINLY S. CARTER’S, and the Ho-warth Trust Properties, being a present client at the time of the litigation, that BRINLY S. CARTER had a responsibility under the Disciplinary Rules and Integration Rules to either deposit the money in the Howarth Trust Properties Account or place the money into the registry of the court by proper motion or by petition for interpleader. To retain the money in his own personal account was conduct that is violative of the above rules.

The referee recommends that Brinly Carter be publicly reprimanded for his misconduct.

The referee has patiently and thoroughly reviewed the facts of this complicated intrafamily dispute over the management of family property involving three lawyers — Catherine Carter, Brinly Carter, and Mary Howarth (mother of Catherine and grandmother of Brinly). His findings of fact should be accorded substantial weight and should not be overturned unless clearly erroneous or lacking in evidentiary support. The Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968). We approve the referee’s findings of fact and his recommendation of a public reprimand.

Accordingly, respondent Brinly S. Carter is hereby publicly reprimanded, and the publication of this opinion in Southern Reporter shall constitute a public reprimand.

This matter is remanded to the referee for the determination as to how costs should be assessed.

It is so ordered.

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

      . DR 1-102(A)(5) reads:
      (A) A lawyer shall not:

      (5) Engage in conduct that is prejudicial to the administration of justice.

      . DR 9-102(B)(4) reads:
      (B) A lawyer shall:

      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

      . Integration Rule 11.02(4) reads:
      (4) Trust funds and fees. Money or other property entrusted to an attorney for a specific purpose, including advances for costs and expenses, is held in trust and must be applied only to that purpose. Money and other property of clients coming into the hands of an attorney are not subject to counterclaim or setoff for attorney fees, and a refusal to account for and deliver over such property and money upon demand shall be deemed a conversion. This is not to preclude the retention of money or other property upon which the lawyer has a valid lien for his services or to preclude the payment of agreed fees from the proceeds of transactions or collections. Controversies as to the amount of fees are not grounds for disciplinary proceedings unless the amount demanded is clearly excessive, extortionate or the demand is fraudulent.
      In a controversy alleging a clearly excessive, extortionate or fraudulent fee, announced willingness of an attorney to submit a dispute as to the amount of a fee to a competent tribunal for determination may be considered in any determination as to intent or in mitigation of discipline; provided such willingness shall not preclude admission of any other relevant admissible evidence relating to such controversy, including evidence as to the withholding of funds or property of the client, or to the other injury to the client occasioned by such controversy.


text:
    THE FLORIDA BAR, Complainant, v. John Larson LUND, Respondent.
    No. 60432.
    Supreme Court of Florida.
    Feb. 25, 1982.
    John F. Harkness, Jr., Executive Director and.Stanley A. Spring, Staff Counsel, Tallahassee, Cynthia S. Prettyman, Bar Counsel, Fort Lauderdale, and William T. Haver-field, Chairman, Twentieth Judicial Circuit Grievance Committee “A”, Fort Myers, of The Florida Bar, for complainant.
    John Larson Lund, in pro. per.
   PER CURIAM.

In this disciplinary proceeding the referee has recommended that the respondent, a member of the Florida Bar, be found guilty of violation of the Florida Bar Code of Professional Responsibility Disciplinary Rules 1-102(AX1), 1-102(A)(4), 1-102(A)(5), and 1-102(A)(6).

The complaint arises from testimony that the respondent had given before a grievance committee hearing. The respondent admits that a small portion of his testimony turned out to be untrue, but that he was unaware of its untruthfulness and that there was no intentional misrepresentation. He urges this Court that the referee’s findings of fact do not support a conclusion of a violation of any disciplinary rule.

We reject that contention and approve the referee’s report. We also adopt the referee’s recommendation of discipline and suspend John Larson Lund for a period of ten days. The suspension shall be effective March 29, 1982, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. He is further directed to pay costs in the sum of $684.20 to the Florida Bar.

It is so ordered.

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

BOYD, J., dissents.

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

        (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.
      (6)Engage in any other conduct that adversely reflects on his fitness to practice law.


author: BASKIN, Judge. BARKDULL, Judge,

text:
    Frank Emerson WILT, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1595.
    District Court of Appeal of Florida, Third District.
    Filed March 16, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

During his trial for second-degree murder and possession of a firearm during the commission of a felony, arising from the shooting of James Yates following a fight in a barroom, defendant Wilt sought to establish that he killed Yates in self-defense. He failed to convince the jury, however, and upon conviction was sentenced to serve fifty years in the state penitentiary. This appeal ensued.

Wilt contends that the trial court erred when it denied his motion for mistrial based upon the state’s improper cross-examination. During direct examination, Wilt admitted that he had previously been convicted of a crime. The prosecutor cross-examined Wilt asking, “[A]s a convicted felon you are not allowed to carry a gun; are you?” Defense counsel objected, but the objection was overruled. His motion for mistrial was denied. We reverse.

In our view, the question introduced evidence of another crime, that is, the possession of a firearm by a convicted felon, which was not material to the issues being tried and served only to establish criminal propensity. While the fact that a defendant has previously been convicted of a crime is relevant to his credibility, once that admission has been obtained, further questioning must be viewed as an attempt to attack character. For nearly one hundred years, it has been the law in Florida that unless a defendant has placed his character in issue, such an attack deprives him of a fair trial and constitutes reversible error. Lewis v. State, 377 So.2d 640 (Fla.1980); Young v. State, 141 Fla. 529, 195 So. 569 (1939); Mann v. State, 22 Fla. 600 (1886); Fla.Evid. Code, § 90.610, Fla.Stat. (1979).

Wilt took the stand to establish that the shooting occurred when the victim approached and threatened him with a piece of broken glass. Wilt admitted that he had a gun on his person and that he had been convicted of a crime. The state’s attempt to undermine his character or to show a propensity to commit other offenses was irrelevant to any material fact in issue. Williams v. State, 110 So.2d 654 (Fla.1959); Mooney v. State (Fla. 1st DCA 1982) (Case No. XX-243, opinion filed January 6, 1982).

We reject the state’s argument that if we find error we must deem it harmless because the testimony of other witnesses constituted overwhelming evidence of defendant Wilt’s guilt. The testimony merely confirmed that Wilt shot Yates but did not refute his contention that he acted in self-defense.

The remaining point has been decided by State v. Monroe, 406 So.2d 1115 (Fla.1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981); section 775.021(4), Florida Statutes (1979).

Reversed and remanded for a new trial.

BARKDULL, Judge,

dissenting.

I respectfully dissent. I agree that the question in regard to the defendant, as a convicted felon, being in possession of a gun was improper; however, under the facts in this case as shown by the overwhelming evidence of the defendant’s guilt, it would appear that the harmless error doctrine should be considered and the conviction and sentence of second degree murder should be affirmed. See: Gordon v. State, 288 So.2d 295 (Fla. 4th DCA 1974); Hamilton v. State, 356 So.2d 30 (Fla. 3d DCA 1978); Keel v. State, 243 So.2d 630 (Fla. 4th DCA 1974); Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980); United States v. Mayo, 646 F.2d 369 (9th Cir. 1980).

      . The defendant has not argued, nor do we address, the issue of the state’s failure to comply with Florida Evidence Code, section 90.-404(2), Florida Statutes (1979).

      . One witness actually testified he saw a gun in the defendant’s hand, and other witnesses did see the defendant raise his hand toward the deceased, heard the shot, and saw the deceased fall to the floor.


text:
    WARREN, JONES & WARREN and Highlands Insurance Company, Appellants, v. Ernest GOODMAN, Aetna Insurance Co., Stanley Girard, Allstate Insurance Co. and Carl Kleiser, Appellees.
    No. 81-1250.
    District Court of Appeal of Florida, Third District.
    March 16, 1981.
    Adams, Kelley & Kronenberg and Steven Kronenberg, Miami, for appellants.
    Headley & Headley; Daniels & Hicks and Sam Daniels, Miami, for appellees.
    Before HUBBART, C. J., and FERGUSON, J., and MELVIN, WOODROW M. (Ret.) Associate Judge.
   PER CURIAM.

Affirmed. Hardware Mutual Insurance Company v. Roth, 222 So.2d 768 (Fla. 3d DCA 1969).