text:
    James Arthur SULLIVAN v. STATE.
    6 Div. 996.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.

      Stephen B. Griffin, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, James Arthur Sullivan, was charged by an indictment returned against him by the Grand Jury of Jefferson County with theft of property in the first degree. He entered a plea of not guilty, was found guilty as charged in the indictment of theft in the first degree, and duly sentenced to be imprisoned in the penitentiary for a term of forty-two months. He appeals to this Court.

The appellant was represented at all proceedings in the trial court, and is represented in this Court by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant claims in his brief that the trial court erred to his prejudice when it overruled his motion for judgment of acquittal at the close of the state’s evidence on the grounds that the state has failed to prove the element of deception, and the facts do not sustain a probable cause to believe the crime was committed, and, also, the facts at this point, as presented by the state, did not support the allegations the state has made in the indictment. This presents to this Court the sufficiency of the state’s evidence, at the time it rested its case, to sustain the jury verdict of guilty.

The indictment charges that the appellant did knowingly obtain, by deception, control over seven thousand six hundred eighty dollars and ninety-seven cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the property of Bonanza Central Corporation, a corporation, with the intent to deprive the owner of said property, contrary to Section 13A-8-3 of the Alabama Criminal Code.

State’s evidence tended to prove that in October and November, 1981 Mr. Phil Gross owned and operated four Bonanza Restaurants in the City of Birmingham, Jefferson County, Alabama, and had hired the supervisory personnel, managers, and assistant managers, for the past fifteen years. That he had hired the appellant as an assistant manager trainee, and then as an assistant manager of the restaurant on 21st street. That the appellant had been assistant manager of the restaurant for about six months before November 2,1981. That as assistant manager the appellant had the responsibility to fill out and sign a daily report each night that he was on duty, and close the restaurant. The daily report shows the sales for the day, the number of units sold, the price collected for each item, and the total amount of money to be deposited in the bank each evening. That it was the duty of an assistant manager to attach a copy of the deposit slip to the report, and to place the money for the day, together with a deposit slip, in a money bag, lock it, and deposit it in the night depository at the Central Bank each evening after closing time. The blank deposit slips are furnished by the Central Bank with the proper account numbers on them, and the manager, or assistant manager, fills them out daily at closing time. A copy of the deposit slip is attached to the daily report which is signed by the manager, or assistant manager, who closes that day. State’s exhibits 1 and 2 are reports for October 30, 1981 for $4,322.47, and for November 1, 1981 for $3,296.50. That the appellant was the closing manager on October 30, 1981, and on November 1, 1981, and signed both reports. That the amount missing totaled $7,618.97. That when Mr. Gross heard that there may be a problem at the restaurant, he immediately went to the restaurant on 21st. street where he met with Mr. Davis, the manager, and Mr. Sullivan, the assistant manager, and a gentleman from Central Bank, and found out that the two deposits had not been made, and the deposit slips were not initialed by a bank teller. That Mr. Gross asked the appellant what was going on, and that the appellant was very noncommittal at the time. That Mr. Gross requested Mr. Davis to ask the appellant to come by, and for Mr. Davis and the appellant to be at the restaurant on Tuesday, as Mr. Gross wanted to talk to them on a one to one basis. That the appellant came to the restaurant, and Mr. Gross asked him to return the money, and that the appellant replied, “Mr. Gross, as good as you have been to me, do you think I would steal from you?” That several weeks before this conversation the appellant told Mr. Gross that his key to the bank depository would not work, and Mr. Gross told the appellant to go to the bank the next day and get a new key. That there were three keys to the bank depository. Mr. Davis, Mr. Sullivan, and Mr. Gross each had one. That the money bag had a lock on it, and the next day after a money bag was placed in the bank depository, the person who closed the restaurant the evening before would go to the bank, unlock the money bag, and count the money in the presence of a person who represented the bank, and who would stamp, and initial, the deposit slip. That the deposit slips and daily reports for October 30, and for November 1, 1981 were made out, and signed, by Mr. Sullivan, but the deposits were never placed in the depository at the bank.

State’s evidence further tended to prove that Mr. Ray Lee Davis was manager of the restaurant on 21st. street. That in October and November of 1981 he had twenty-four employees at the restaurant. That on October 30, and November 1, 1981, Mr. James Sullivan, the appellant, was assistant manager of the restaurant. That his duties as assistant manager are almost the same as the manager, which are running the restaurant, making daily reports, .making bank deposits, hiring, and firing employees. They are a team-type responsibility between the manager and the assistant manager. That November 2, 1981 was Mr. Davis’ day off, but at about 9:00 or 9:15 A.M., Mr. Davis went by the restaurant, and found that Mr. Sullivan was not there, so Mr. Davis took the key to the deposit bag, and went to the bank to claim the unprocessed bags which should have been dropped in the bank depository. That when Mr. Davis got to the bank, the deposit for Sunday, November 1, 1981, the day before, was not there. That when Mr. Davis went back to the restaurant at about 10:00 o’clock, A.M., he telephoned Mr. Sullivan, and told him that the Sunday evening money bag was not at the bank, and Mr. Sullivan told Mr. Davis that his key to the bank depository would not work on Sunday night, and that he had the deposit bag with him at his apartment, and that he would drop it by the bank on his way to work. That on Tuesday morning Mr. Davis went back to the bank to process the money bag, and when he got to the bank, he found out that the money bag had not been left there Monday by Mr. Sullivan. That Mr. Davis again called Mr. Sullivan from the bank, and Mr. Sullivan said he had left the money bag with a drive-in teller by the name of Bridgette, and the bag was supposed to be at the bank. That Mr. Davis then requested Mr. Sullivan to meet him back at the restaurant, and Mr. Sullivan came to the restaurant, and Mr. Davis and Sullivan went to the bank where they met with Mr. Yogi, a supervisor, Bridgette, a drive-in teller, and Mr. Davis told Bridgette that she knew Sullivan left the bag at her drive-in window, and Bridgette began to cry, and said he did not leave the bag with her, and Mr. Davis advised the bank employees that he knew Mr. Sullivan had left the bag at the drive-in teller window, and that they needed the money, and that he was going to call the police. Mr. Sullivan and Mr. Davis returned to the restaurant, and Mr. Davis called Mr. Gross. That Mr. Davis said to Mr. Sullivan that they really did not have a problem because the bank made pictures of all transactions made at the drive-in teller window, and the bank’s records would show that Mr. Sullivan did, in fact, deliver the bag to the drive-in teller’s window. That Mr. Davis then called the police, and before anyone arrived, Mr. Sullivan told Mr. Davis that he, Sullivan, really did not carry the bag to the drive-in teller window, but that somebody stole it out of his car, and that he was seared, and just made up the story about taking the bag to the drive-in teller window. That Mr. Sullivan made out a police report that someone had stolen the money out of his car. That this happened on Tuesday, November 3, 1981. That on Wednesday, November 4, 1981, Mr. Davis found out that the deposit for Friday night, October 30, 1981, was missing. That Mr. Davis called Mr. Sullivan, and he came to the restaurant, and there was a conference between Mr. Davis, Mr. Sullivan, and Mr. Gross, in which Mr. Gross asked Mr. Sullivan where Friday night’s deposit was, and Mr. Sullivan replied that he did not want to answer any more questions. That Mr. Sullivan closed Friday night. That when Mr. Sullivan was arrested, he had two keys to the bank depository, one was an old key, and one was a new key. That Mr. Gross also had a key, and Mr. Davis had a key.

State’s evidence further tended to prove that Bridgette Lanell Dabney was an employee at the main office of the Central Bank during the month of October and November, 1981, and was working as a drive-in teller, paying, and receiving. That on a Monday, or Tuesday, the appellant, Mr. Sullivan, came to the drive-in teller window, and gave her $150'00 in cash, and she gave him $150.00 in change, and he left, and then about thirty minutes later Mr. Sullivan and Mr. Davis, the manager of Bonanza, came to the bank, and Mr. Davis said that Mr. Sullivan told him that he had given the night deposit bag to Bridgette, and she told them that Mr. Sullivan had not given the bag to her. That later on the branch manager, and the operations officer, came to the drive-in window, and searched it, and did not find a money bag. That Bridgette was given a polygraph test by the bank, and passed it. That Mr. Davis did most of the talking to her at the bank, and Mr. Sullivan was very calm, and Mr. Davis asked Mr. Sullivan if he had given her the bag, and Mr. Sullivan did not reply loud enough for her to hear him.

State’s evidence further tended to prove that Anthony Figguers, an employee at the Bonanza Restaurant was on duty on November 1, 1981. That the Bonanza closed at 9:00 o’clock, P.M. That after they closed, Mr. Sullivan went back and did the paper work. That when Sullivan got through with the paper work, they went by the bank to make the bank deposit, and that the night depository key didn’t work, so Mr. Sullivan called Mr. Figguers to come and see if he could get the key to unlock the bank depository. That he tried the key, and it would not work. That he took Fig-guers and two others who worked at Bonanza to their homes. That Sullivan said he was going back by the Bonanza and put the money bag in the safe there. That on November 2, 1981 he worked the shift from 5:00 A.M. to 9:00 P.M., and left the Bonanza about 10:00 o’clock. That while Mr. Sullivan was back doing the paper work, Mr. Figguers was cleaning up, and letting customers out. That Figguers and Sullivan left to go home about 10:00. That when they left Central Bank, the money bag was on the front seat of Mr. Sullivan’s car under the arm rest. Two other employees were riding in the back seat. The Bonanza had three money bags. He rode home with Mr. Sullivan on Sunday and Monday, November 2 and 3.

State’s evidence further tended to prove that Sandy Miller, an employee of Stanley F. Lapidus, a certified public accountant’s firm, was in full charge of Bonanza’s account. That it was her duty to take the bank statement, when it came in from the bank, and the check stubs, and the daily reports of Bonanza, and reconcile the checkbook back to the bank statements. That state’s exhibit number 3 is a summary for the month of October prepared from the daily reports made by the manager, and the deposits made at the bank, day by day, and the name of the manager who made the reports, and the date the deposit was made at the bank. The deposit for October 1 was made on October 10 by Mr. Sullivan. That the daily report is made by the person who closes on that day, and has the deposit slips attached to it.

State’s evidence further tended to prove that Robert Funderburg was an employee as security director at Central Bank on November 3, 1981. That he became involved in this case when the manager came from Bonanza to pick up the bag. That he only picked up one bag, and there was supposed to be more than one. That he got the record stating that only one bag had been dropped over the weekend, and the only bag that he could find was just one that was dropped on Sunday night. State’s exhibit 4, a bank record under dual control, shows, when anyone who makes a deposit at night, the teller, when they go to work a bag, or count the bags that are in the night deposit, they log down the bag numbers, and when a person comes to pick up the bags, they are locked with a number on them. They have to sign with their initials showing that the bag has been picked up. State’s exhibit 4 shows that the bag was for 11/2/81, and it was for Monday morning. Bag number 304 was by Mr. Ray Davis at 9:23 Monday morning. Exhibit 4 was introduced into evidence. Then Sergeant Rosen and Mr. Funderburg went to Mr. Sullivan’s house, and brought him back to the Bonanza. That then Sergeant Harper with the Birmingham Police was called in, and they talked to Mr. Sullivan, and Mr. Funderburg left. Mr. Funderburg was out of the matter after Sergeant Harper got involved.

State’s evidence further tended to prove that Sergeant R.W. Harper of the Birmingham Police Department, on November 3, 1981, was assigned as a detective sergeant in business service. That Mr. Gross requested him to come over to the Bonanza Restaurant and talk with him which Sergeant Harper did. That when he arrived, Mr. Funderburg, Sergeant Robinson with the Sheriff’s Department, and Mr. Sullivan were present. That Sergeant Harper showed Mr. Sullivan the daily report slips that he had filled out with the deposit slips, and asked him if he had filled them out, and he said he had. Then Sergeant Harper asked him where the money was, after having read his rights to him, and he said he did not know. The state rested its case, and the appellant made a motion for an acquittal on the grounds that the state had failed to prove the element of deception; that the facts do not sustain a probable cause to believe a crime was committed, and that the facts as presented by the state did not support the allegations of the state made in the indictment.

Rule Number 12.1.(a), (b), and 12.2.(a), (b), (c) of Criminal Procedure, Temporary:

“Rule 12.
“Motion for judgment of acquittal.
“12.1. Nature and form of the motion.

“(a) NATURE OF THE MOTION. The court on motion of the defendant stating the grounds therefor, or on its own motion, shall direct the entry of a judgment of acquittal as to any charged offense, or as to any lesser included offense, for which the evidence is insufficient to support a finding of guilty beyond a reasonable doubt.

“(b) FORM OF THE MOTION. Motion for judgment of acquittal may be made either in writing or orally upon the record and shall be argued outside the hearing of the jury; except that motions pursuant to Temporary Rule 12.3 shall be in writing.

“12.2. Motion for judgment of acquittal before submission of case to factfinder.

“(a) TIME FOR MAKING MOTION. The defendant may make a motion for judgment of acquittal either at the close of the state’s evidence, or at the close of all the evidence.

“(b) DECISION ON MOTION. If the motion for judgment of acquittal is made after the close of the state’s evidence, the court shall rule on the motion before calling on the defendant to present his evidence. If the motion is made at the close of all the evidence in a jury case, the court shall rule on it before permitting argument or charging the jury; if it is not ruled on at that time, it is deemed denied. In a nonjury case, if the motion is not ruled on prior to the submission of the case for decision, the motion is deemed denied.

“(c) EFFECT OF MOTION. A defendant who moves for judgment of acquittal at the close of the state’s evidence may offer evidence in the event that the motion is not granted, without having reserved the right to do so, and to the same extent as if no such motion had been made. The making of a motion for judgment of acquittal is not a waiver of trial by jury. An order granting a motion for judgment of acquittal is effective without the assent of the jury.”

When a motion for a judgment of acquittal before submission of cause to a jury is made on the grounds that the state has failed to make out a prima facie case because the evidence is insufficient to support a finding of guilty beyond a reasonable doubt, it is the duty of the trial court to determine the sufficiency of the evidence to sustain a conviction under the indictment. In determining if the evidence of the state is sufficient to sustain a verdict, the trial court should consider only the evidence before the jury of the facts at the time the motion was made, and must consider it most favorably to the state. When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit the case for the jury to determine the weight it will give the evidence. This Court should not disturb the jury’s decision.

A person commits the crime of theft of property if he:

(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or

(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property. Code of Alabama, 1975, Title 13A-8-2. The theft of property which exceeds $1,000.00 in value constitutes theft of property in the first degree, a Class B felony. Code of Alabama, 1975, Title 13A-8-3.

We hold that under state’s evidence, and all reasonable inferences therefrom, the evidence in this case is sufficient to sustain a jury verdict of guilty of theft in the first degree as charged in the indictment, and that the trial court did not err to the prejudice of the appellant in overruling his motion for judgment of acquittal. Hinds v. State, Ala.Cr.App., 423 So.2d 1382; Dolvin v. State, Ala., 391 So.2d 133; Barbee v. State, Ala.Cr.App., 395 So.2d 1128; Crumpton v. State, Ala.Cr.App., 402 So.2d 1081; Johnson v. State, Ala.Cr.App., 378 So.2d 1164, certiorari quashed, Ala., 378 So.2d 1173; Kelly v. State, Ala.Cr.App., 423 So.2d 343; Bozeman v. State, Ala.Cr.App., 401 So.2d 167, certiorari denied, Ala., 401 So.2d 171, certiorari denied, 454 U.S. 1058, 102 S.Ct. 606, 70 L.Ed.2d 595.

The judgment of the trial court is due to be, and is hereby affirmed.

The foregoing opinion was prepared by Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Petition of FLORIDA BOARD OF BAR EXAMINERS FOR AMENDMENT OF the RULES OF the SUPREME COURT OF FLORIDA RELATING TO ADMISSIONS TO the BAR.
    No. 63603.
    Supreme Court of Florida.
    Oct. 20, 1983.
    Marvin E. Barkin, Chairman, Tampa, and C. Graham Carothers, Tallahassee, for the Fla. Bd. of Bar Examiners, petitioner.
   PER CURIAM.

This matter is before us on petition of the Florida Board of Bar Examiners for amendment of the Rules of the Supreme Court Relating to Admission to The Bar. Notice of the Board’s petition and of oral argument was published in the Florida Bar News, inviting responses thereto.

We approve the Board’s proposed changes and hereby adopt the amendments appended to this order effective upon filing, with the following exceptions: (1) Scores from Multistate Bar Examinations (MBE’s), up to and including the July 1983 administration, may be transferred, provided that Florida Board of Bar Examiners’ Form 32, bearing the National Board of Bar Examiners’ scaled score, is filed by midnight, June 30, 1984; (2) The changes in article VI, section 3(e) relating to subjects testable on Part A of the General Bar Examination shall not become effective before the examination to be administered in February 1985.

It is so ordered.

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

I. Article I, Section 14, relating to the release of information, is added to the Rules:

Section 14. All information maintained bv the Board in the discharge of those responsibilities delegated to it bv the Supreme Court of Florida shall be confidential except as provided bv these Rules or otherwise authorized bv the Court. All matters including, but not limited to. registrant and applicant files, investigative reports, examination material, and inter-office memoran-da shall be the property of the Supreme Court of Florida and the Board shall serve as the custodian of all such records.

The Board is authorized to disclose the following information relating to an individual registrant, applicant or member of The Florida Bar, absent specific instructions from the Court to the contrary:

a. Upon written request from The Florida Bar for information relating to disciplinary proceedings, reinstatement proceedings or unauthorized practice of law investigations. provided, however, that information received bv the Board under a specific agreement of confidentiality or otherwise restricted bv law shall not be disclosed.

b. Upon written request from the National Conference of Bar Examiners, or from foreign bar admitting agencies, foreign bar associations, or other similar agencies, when accompanied bv an authorization and release duly executed bv the person about whom such information is sought, provided, however, that information received bv the Board under a specific agreement of confidentiality or otherwise restricted bv law shall not be disclosed.

c. Upon written request from registrants or applicants for copies of documents previously filed bv them, or on their behalf with the Board with the written consent of the party submitting such documents, and copies of anv documents or exhibits tendered to the Board at an investigative or formal hearing before the Board and the transcripts of anv such hearings.

d. Upon service of a subpoena issued bv a Federal or Florida Grand Jury, or Florida State Attorney only in connection with a felony investigation, provided, however. that information otherwise restricted bv law shall not be disclosed.

II. Article III, Section 1(b), adding a definition, shall read:

b. Satisfactory evidence of graduation from a full-time accredited law school at a time when or within 12 months of such accreditation, or in the alternative, satisfactory evidence that the applicant has completed the requirements for graduation from a full-time accredited law school at a time when such law school was accredited or within 12 months of such accreditation, and that such accredited law school has or, in the alternative, will confer upon the applicant the degree of Bachelor of Laws or Doctor of Jurisprudence. The term “completed the requirements for graduation” refers to the time when completion of the requirements for graduation is recorded in the office of the law school dean or administrator. The term “accredited law school” has reference to any law school approved or provisionally approved by the American Bar Association or which is a member of the Association of American Law Schools. None of the following shall be substituted for law school training:

(1) Private study, correspondence school or law office training;
(2) Age or experience;
(3) Waived or lowered standards of legal training for particular persons or groups.

III. Article III, Section 4(b), relating to review of board decisions, shall read:

b. Any applicant or student registrant who is dissatisfied with the Board’s recommendation concerning such applicant’s or registrant’s character and fitness may file an appropriate petition with the Clerk of the Supreme Court of Florida, within a period of sixty (60) days after receipt of the Board’s recommendation. A copy of such petition shall be served upon the Executive Director of the Board. Upon receipt of such petition, the Executive Director shall place the file and other available informa-tien record of the formal hearing with the Supreme Court, and such Justice or Justices thereof as shall be designated by the Chief Justice may interview and hear such applicant or student registrant and make such inquiry of the Board and others as shall be necessary to a decision as to whether such applicant or student registrant meets the character and fitness requirements. The Justice or Justices so designated shall make a recommendation to the Court and the final action of the Court shall be duly entered in the minutes thereof.

IV.The following changes relate to non-transfer of Multistate Bar Examination scores:

A. Article IV, Section 1(b):

b. Application for Admission to The Florida Bar (Form 1 or Form 2, as applicable).

Although the application for admission into the General Bar Examination and the application for admission to The Florida Bar are entirely independent of each other, applicants are advised that the character and fitness investigation conducted by the Board in conjunction with the Application for Admission to The Florida Bar is detailed and may require 6-8 months for all facts to be marshalled and a decision reached by the Board. Therefore, law students are encouraged to file for admission to the Bar when entering their senior year in law school to assure completion of all character and fitness related matters at the time of grade release of the first examination following graduation. All applicants are required to file fully completed questionnaires and to be responsive to Board requests for further information in order to assure orderly processing of the files.

Applications for Admission into the General Bar Examination and to The Florida Bar shall be made upon forms supplied by the Board pursuant to Article V, Section 18. Those applicants utilizing Part B (Multi-state Bar Examination-MBE)-scores from other jurisdictions must have filed with that jurisdiction as an applicant for that bar — pr-ior to the administration of said MB&

Bar applications (Form 1 or Form 2) filed in a defective condition, i.e., without notarization, or supporting documents, or having blank or incomplete items on the application, shall be accepted but a fee of $20.00 as specified under Article Y, Section 4 shall be assessed.

The Application for Admission to The Florida Bar must be filed not later than 180 days from the date of the notice that success has been attained on all parts of the Florida Bar Examination (General Bar Examination and Multistate Professional Responsibility Examination — MPRE) as provided under Article VI, Section 9(b).

Note: Applications for the Multistate Professional Responsibility Examination (MPRE) are filed with the appropriate agency of the National Conference of Bar Examiners. Fees required for that administration shall be paid to the agency administering that examination.

B. Article IV, Section 4(c)(5) shall be deleted and Section 4(c)(6) shall be renumbered Section 4(c)(5) for consistency.

C. Article IV, Section 5:

Section 5. Applicants seeking postponement of their submission to Part A or Part B of the General Bar Examination or Part B-thereof if administered in Florida shall be permitted to do so upon payment of

a. a fee of $25.00 as specified under Article V, Section 13(a), if a written notice of postponement is received at least seven (7) days in advance of the commencement of the administration of such examination; or

b. a fee of $40.00 as specified under Article V, Section 13(b), if a written notice of postponement is received thereafter but preceding the deadline for filing for the next administration of such examination.

All such applicants who have previously postponed their submission to Part A or Part B of the General Bar Examination or Part B thereof if administered-in Florida must bring their applications to current status by the filing of another examination application by the deadline as specified under the provisions of Article VI, Section 5.

D. Article VI, Section 4:

Section 4. The General Bar Examination shall be administered on the last Tuesday and Wednesday of February and July of each calendar year. Part B (the-Multistate Bar — Examination—MBE)—is—presented simultaneously in the various participating states on -the last Wednesday of February and July of-each calendar year.

E. Article VI, Section 6:

Section 6. An applicant may elect to submit to the General Bar Examination by either of the following methods:

a. Method 1 (compensatory model) may be utilized only by applicants who submit to Parts A and B during the same administration of the General Bar Examination. To pass on Method 1 an applicant must have an average scaled score of 133 or better prior to July 1, 1982, and an average scaled score of 131 or better after July 1, 1982.
b. Method 2 (multiple cut off model) may be utilized only by applicants who4 submit to only one part of the General Bar Examination. To pass on Method 2 an applicant must have
(1) submitted to the Multistate Bar Examination (MBE) in another jurisdiction, received-a sealed score of not-less than 133 -pr-ior- to July 1, 1982, and a sealed score of not less than 131 after July 1, 1982, on-the Multistate Bar Examination (MBE)-aad who elected to submit to only Part A of the General-Bar Examination in Florida; or
(2) submitted to the General Bar-Examination-on a previous administration and received a scaled score of 133 or higher prior to July 1, 1982, and 131 or higher after July 1, 198⅜. on only-one-of the two parts of such examination-aad who wish-to^etake just the part previously failed-;

Applicants who elect to submit to only one part of the General Bar Examination on a given administration shall utilize Method 2 and may not combine a score attained on one part from one administration with a score on the other part from a different administration. Such applicants shall have taken the Multistate Bar Examination (MBE) previously (unless, of course, the Multistate Bar Examination (M-BE-) is the only part that they are taking).

An applicant who has attained a passing scaled score on only one part and who elects to submit to the compensatory model (Method 1) of the General Bar Examination as described above shall retain such passing score on said part even though such applicant shall fail to achieve a passing score on that part on subsequent administrations.

F.Article VI, Section 7:

Section 7. Each examination paper produced by an applicant on the General Bar Examination shall be separately graded. The scores of each section of Part A shall be converted to a common scale by a recognized statistical procedure so that each section will be equally weighted. The sum of the converted section scores will be the total score for Part A. All total scores attained by the applicants on Part A shall be converted to the same distribution as their Multistate Bar Examination (MBE) scaled scores. Multistate Bar Examination (MBE) scores (Part B) are the scaled scores on the Multistate Bar Examination (MBE) provided by the National Conference of Bar Examiners. Scaled scores shall be used in order to assure that the standard of measurement of competence from examination to examination is not affected by the difficulty of the particular test or the ability of that particular group as distinguished from the general population of applicants. Papers shall be graded and credited by number and not by applicant’s name. The name of the writer of the examination paper shall not be revealed by the staff to the members of the Board or readers or any source other than the Supreme Court of Florida. Each applicant must attain a scaled score of 133 or better prior to July 1,1982, a scaled score of 131 or better after July 1, 1982, on Part A and on Part B under Method 2 and an average of 133 or better prior to July 1, 1982, and an average of 131 or better after July 1,1982, under Method 1, or such scaled score as may be fixed by the Court. If the applicant-elects-to utilize a Part B score through submission- to the Multistate Bar Examination-(M-BE) -in-an admitting jurisdiction other than-the State of Florida, a certificate-bearing the National Conference of-Bar Examiners-sealed-score-attained in that jurisdiction shall be forwarded to the Florida Board- of Bar Examiners by the admitting jurisdiction — or—the Director — of Testing (National Conference of Bar Examiners) on a form supplied for that purpose by the Florida Board of Bar Examiners (Form 32).

[The remainder of Article VI, Section 7 is unchanged.]

G. Article VI, Section 9(a):

Section 9.(a) An applicant must successfully complete the General Bar Examination and the Multistate Professional Responsibility Examination (MPRE) within 25 months from first submitting to any portion of the examination in Florida, or-fr-onr-the date of an examination-in-another — jurisdiction-the- score of which has been accepted in lieu of submitting in Florida, An applicant who fails four times to pass any part of the General Bar Examination or who fails to pass both the General Bar Examination and the Multistate Professional Responsibility Examination (MPRE) within 25 months shall be ineligible to sit for any part of the examination until the passage of at least 1 administration of the General Bar Examination and the Multistate Professional Responsibility Examination (MPRE) from the close of the 25-month period. At the end of that period, the applicant must again successfully complete the General Bar Examination and the Multistate Professional Responsibility Examination (MPRE) in their entirety regardless of whether a part has been successfully completed in the past.

H. Article VI, Section 11:

Section 11. On each date set pursuant to Article VI, Section 10, the Board shall advise all persons submitting to any part of the General Bar Examination within the State of Florida at the last administration thereof, whether such person has passed or failed any or all parts of said examination. At that time those persons who have passed all parts of the examination but who have not been recommended to the Supreme Court for admission to The Florida Bar will be further advised of the status of their applications.

I. Article VI, Section 12:

Section 12. Applicants will be notified whether their Multistate Professional Responsibility Examination (MPRE) scores qualify as a passing score, and applicants submitting to Part B of the - General Bar Examination outside of the State of Florida shall-be-advised by the Board whether their scores qualify-as-passing scores.

V. Article VI, Section 3(c) is amended as it relates to subjects on Part A of the General Bar Examination and nontransfer of MBE scores:

c. The Florida Bar Examination shall consist of a General Bar Examination and the Multistate Professional Responsibility Examination (MPRE).

The General Bar Examination shall be designated as Part A and Part Br. and shall be administered only within the State of Florida.

Part A shall be of six hours’ duration and shall be composed of six one-hour segments to be promulgated by the Florida Board of Bar Examiners.

One segment shall embrace the subject of Florida Rules of Civil and Criminal Procedure, another shall embrace the subject of Florida Constitutional Law and the remaining four segments shall be selected from the following subjects including their equitable aspects:

Federal Constitutional Law
Business Entities Including Corporations and Partnerships
Wills and Administration of Estates
Trusts
Real Property
Evidence
Torts
Criminal Law
Contracts
Family Law

Part B shall consist of the Multistate Bar Examination (MBE) which is that examination offered to the several states by the National Conference of Bar Examiners and designated by that organization as the Multistate Bar Examination (MBEh: provided, however, that scores achieved by applicants on the Multistate Bar Examination administered by an admitting jurisdiction other than the State of Florida shall not be transferred to or recognized by the Board. The Multistate Professional Responsibility Examination (MPRE) shall be the examination offered to the several states by the National Conference of Bar Examiners designated by that organization as the Multi-state Professional Responsibility Examination (MPRE), which examination is administered generally three times each year throughout the country at various colleges and universities selected by the National Conference of Bar Examiners and its desig-nee.

VI. The Table of Contents is amended accordingly:

Section ARTICLE I - FLORIDA BOARD OF BAR EXAMINERS PAGE
M Release of information from applicant File 3 ARTICLE VI - EXAMINATION
12 Notification of Pass/Fail Information re MBE-an4 MPRE 15 Scores

       Added language is underlined, deleted language is lined out.


author: McDonald, justice. ALDERMAN, Chief Justice,

text:
    Joseph G. STOKES, Petitioner, v. Lloyd BELL, Respondent.
    No. 63132.
    Supreme Court of Florida.
    Nov. 17, 1983.
    Dale E. Rice, Crestview, for petitioner. Lloyd Bell, in pro. per.
   McDonald, justice.

The following question has been certified as being of great public importance:

SINCE SERVICE OF PROCESS ON A FLORIDA RESIDENT NORMALLY MAY BE EFFECTED STATEWIDE, IS THERE AN UNDERLYING POLICY REASON TO EXEMPT FLORIDA RESIDENTS FROM SERVICE WHEN ATTENDING COURT OUTSIDE THEIR COUNTY OF RESIDENCE IN THE SAME MANNER AS NONRESIDENTS OF THE STATE ARE EXEMPTED WHEN ATTENDING COURT WITHIN THE STATE?

Stokes v. Bell, 424 So.2d 949, 950 (Fla. 1st DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, and we answer the question in the affirmative.

Stokes, the tax collector for Okaloosa County, sued Bell for nonpayment of real estate taxes. Service of process occurred while Bell was in the Okaloosa County Courthouse defending himself in an unrelated civil action. Bell filed a motion to abate for lack of personal jurisdiction, alleging his permanent residence and principal place of business to be in the Bahamas and that his wife and children reside at his temporary residence in Miami Shores, Florida.

The trial court, relying on State ex rel. Cox v. Adams, 148 Fla. 426, 4 So.2d 457 (1941), granted the motion to abate. The district court stated that it could not reconcile Adams with section 48.011, Florida Statutes (1981), which provides that service of process runs throughout the state. The court could not find that Adams had been receded from, however, so it affirmed the trial court’s judgment and certified the question set out above.

As a general rule, “witnesses and suitors in attendance in court outside of the territorial jurisdiction of their residence are immune from service of process while attending court and for a reasonable time before and after going to court and in returning to their homes.” Rorick v. Chancey, 130 Fla. 442, 453, 178 So. 112, 116 (1937), vacated on other grounds on rehearing, 142 Fla. 298, 195 So. 422 (1939). Rorick concerns a nonresident of Florida, but in Adams this Court extended immunity from service of civil process to Florida residents. In Adams a resident of Hillsborough County, Cox, had been charged with contempt in Lafayette County. While in court to plead to the information, the sheriff served Cox with a summons in an unrelated civil case. This Court cited Rorick and issued a writ of prohibition against proceeding in the civil case.

We find that valid policy reasons supported adoption of this rule and that those reasons are still valid. One reason for granting witnesses and suitors immunity from service of civil process is the due administration of justice:

As commonly stated and applied, it [the rule] proceeds upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.

Lamb v. Schmitt, 285 U.S. 222, 225, 52 S.Ct. 317, 318, 76 L.Ed. 720 (1932). In Lamb the Court went on to rely on Parker v. Hotchkiss, 18 F.Cas. 1137, 1138 (C.C.E.D.Pa.1849) (No. 10,739):

The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. Witnesses would be chary of coming within our jurisdiction, and would be exposed to dangerous influences, if they might be punished with a lawsuit for displeasing parties by their testimony; and even parties in interest, whether on the record or not, might be deterred from the rightfully fearless assertion of a claim or the rightfully fearless assertion of a defence [sic], if they were liable to be visited on the instant with writs from the defeated party.

Parker points up another reason for the rule’s existence, i.e., the fear that lack of immunity would have a chilling effect on a person’s right of access to the courts and to defend himself. Even earlier than Parker, the New Jersey Supreme Court stated the same reasons for adhering to the rule of immunity from service of civil process:

This privilege of parties and witnesses, is alike the privilege of the court and the citizen. It protects the court from interruption and delay. It takes away a strong inducement to disobey its process: [sic] and enables the citizen to prosecute his rights without molestation, and procure the attendance of such as are necessary for their defence [sic] and support.

Halsey v. Stewart, 4 N.J.L. 420, 422 (1817).

These policy reasons — the due administration of justice and avoiding a chilling effect — are as valid today as when the Court wrote Rorick and Adams. Stokes attempts to distinguish Adams because that is a criminal case while the instant case is civil. We see no reason for such distinction, however, and hold that policy reasons do exist for exempting Florida residents from service of civil process while they are attending, or traveling to or from, court proceedings outside the county of their residence as witnesses or suitors. The district court’s question is answered in the affirmative, and its opinion is approved.

It is so ordered.

ADKINS and OVERTON, JJ., and BEN C. WILLIS, Associate Justice, concur.

ALDERMAN, C.J., dissents with an opinion, in which BOYD and EHRLICH, JJ., concur.

ALDERMAN, Chief Justice,

dissenting.

In response to the certified question, I would hold that service of process may be effected statewide on a Florida resident, and there is no valid underlying policy reason to exempt Florida residents from service when attending court outside of their county of residence but within the state. Section 48.011, Florida Statutes (1981), specifically and unambiguously provides that service of process runs throughout the state.

The general rule, cited by the majority, that witnesses and suitors in attendance in court outside the territorial jurisdiction of their residence are immune from service of process while attending court, should apply only to nonresidents of this state and not to residents traveling from county to county within the state. For the purposes of service of process, the territorial jurisdiction of the residence of a person residing in Florida is the boundaries of this state and not the boundaries of that person’s county of residence. Section 48.011 provides that summons, subpoenas, and other process in civil actions run throughout the state. There is no statutory limitation that restricts the service of process on Florida residents anywhere within the state.

In State ex rel. Ivey v. Circuit Court of Eleventh Judicial Circuit, 51 So.2d 792 (Fla.1951), this Court recognized this general rule as applying to nonresidents. Citing Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (1937), vacated on other grounds on rehearing, 142 Fla. 298, 195 So. 422 (1939), we stated that this privilege of immunity came down to us from the common law. This privilege as discussed in Rorick applied to nonresidents of the State of Florida. Again in Lienard v. DeWitt, 153 So.2d 302 (Fla.1963), we restated the principle recited in Rorick and referred to the general rule as the “non-resident witness immunity rule.” 153 So.2d at 303. We found the immunity rule controlling where the party sought to be served was a nonresident of the State of Florida.

The trial court in the present case relies on State ex rel. Cox v. Adams, a 1941 case of this Court which unexplainedly expanded the principle of the “non-resident witness immunity rule” to include other than nonresidents of the state. The First District could not reconcile Adams with section 48.-011 but felt that it was bound to follow Adams as the precedent of this Court.

When this Court in Adams relied entirely on Rorick in holding that the “non-resident witness immunity rule” applied to Florida residents, its reliance was misplaced because the rule in Rorick was limited to nonresidents. Adams is an aberration and should be corrected. Before and after Adams, “outside the territorial jurisdiction of residence” has meant outside the State of Florida. To hold otherwise is to rewrite section 48.011.

It is only reasonable and entirely consistent with the unambiguous language of section 48.011 that a resident of this state be subject to service of process anywhere in this state. It matters not that he is outside the county of his residence when he is served.

Accordingly, I would quash the decision of the District Court of Appeal, First District.

BOYD and EHRLICH, JJ., concur.

       An exception to this rule exists when process is issued in litigation incidental to or correlated with the subject matter of the case at bar, i.e., there is identity of parties and of subject matter. State ex rel. Ivey v. Circuit Court of Eleventh Judicial Circuit, 51 So.2d 792 (Fla.1951); Murphy & Jordan, Inc. v. Insurance Co. of N. Am., 278 So.2d 296 (Fla. 3d DCA 1973).


author: ADKINS, Justice.

text:
    Stephen Todd BOOKER, Appellant, v. STATE of Florida, Appellee. Stephen Todd BOOKER, Petitioner, v. Louie L. WAINWRIGHT, Respondent. Stephen Todd BOOKER, Petitioner, v. Bob GRAHAM, Governor, etc., Respondent.
    Nos. 64517-64519.
    Supreme Court of Florida.
    Nov. 17, 1983.

      James E. Coleman, Jr. and Marian E. Lindberg of Wilmer, Cutler and Pickering, Washington, D.C.; Jeffrey S. Weiner of Weiner, Robbins, Tunkey & Ross, Miami, and Paul S. Rothstein of Rothstein & Skoro, Gainesville, for appellant/petitioner.
    Jim Smith, Atty. Gen. and Lawrence Ka-den, Asst. Atty. Gen., Tallahassee, and Art Wiedinger, Asst. Gen. Counsel to the Governor, Tallahassee, appellee/respondent.
   ADKINS, Justice.

This is a direct appeal from an order of the circuit court of Alachua County denying appellant’s motion to vacate and set aside judgment and sentence and stay execution and other related matters. We also have before us petitions for writs of habeas corpus and mandamus. The appellant has been sentenced to death for the offense of first-degree murder. We have jurisdiction. Art. V, § (3)(b)(l), (7) and (9), Fla. Const.

Appellant, Stephen Todd Booker, was convicted and sentenced to death upon the jury’s recommendation in June 1978. In October 1978 a second sentencing hearing, without the presence of a jury, was conducted. This hearing also resulted in imposition of a death sentence for the murder charge. The circuit court’s judgment and sentence were upheld by this Court in March 1981. Booker v. State, 397 So.2d 910 (Fla.1981). Certiorari was denied by the United States Supreme Court. Booker v. Florida, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). The governor signed Booker’s death warrant to be effective the week of April 16, 1982.

On April 13, 1982, Booker filed a motion to vacate and a motion for new trial before the circuit court pursuant to Florida Rules of Criminal Procedure 3.850 and 3.600. The motions were denied and the court’s order denying those motions was upheld by this Court on April 19, 1982. Booker v. State, 413 So.2d 756 (Fla.1982). Booker then filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Florida. The federal district judge denied relief, but the United States Court of Appeals for the Eleventh Circuit granted a stay of execution. Booker v. Wainwright, 675 F.2d 1150 (11th Cir.1982). Ultimately, the eleventh circuit denied relief. Booker v. Wainwright, 703 F.2d 1251 (11th Cir.), rehearing and rehearing en banc denied, 708 F.2d 734 (11th Cir.1983). Cer-tiorari was denied by the United States Supreme Court a second time on October 17,1983, and on October 27,1983, the governor signed a second death warrant, effective the week of November 11, 1983.

On November 8, 1983, Booker filed the present motions before the circuit court. A hearing was set on the Rule 3.850 motion for November 10, 1983. On that date the trial judge granted Booker a continuance until November 14,1983. On November 16, 1983, the court entered its order denying all Booker’s motions. We affirm that order.

Booker’s 3.850 motion alleged five grounds for relief: A) competency of trial counsel; B) prosecutor’s inflammatory closing argument during sentencing; C) arbitrariness of Florida’s death penalty; D) constitutionality of electrocution; and, E) constitutionality of aggravating circumstance, section 921.141(5)(h) (heinous, atrocious, or cruel), Florida Statutes (1981).

The trial court found that all grounds, with the exception of ground A, were not cognizable on collateral attack because they could have been raised on direct appeal. We agree. Armstrong v. State, 429 So.2d 287, 288 (Fla.1983); Thompson v. State, 410 So.2d 500, 501 (Fla.1982).

Booker’s claim of ineffectiveness of trial counsel was based on allegations of failure to properly prepare an insanity defense or investigate mitigating circumstances. Specifically, Booker alleged that his counsel failed to investigate Booker’s past, failed to provide adequate medical evidence to his psychiatric experts, and failed to contact Booker’s grandmother who would have provided helpful testimony.

The trial court followed the evaluation of ineffective assistance of trial counsel as set forth by this Court in Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

First, the defendant must detail in his pleading the specific omission or overt act upon which the claim of ineffective assistance of counsel is based. Second, the defendant must show that the act or omission was a substantial and serious deficiency measurably below the standard of competent counsel. Third, the defendant must show that the deficiency, viewed under the circumstances, probably affected the outcome of the proceedings. Finally, the defendant’s showing of substantial, prejudicial deficiency must withstand the state’s rebuttal, which may be achieved by showing beyond a reasonable doubt that there was no prejudice in fact.

The trial judge found that Booker had not met his burden as a matter of law. We must agree. The relevant facts were set out in the trial court’s order after the court considered all of the evidence presented at the hearing, the court file and records, arguments and memoranda of counsel. The trial court found the following: Booker’s counsel, Mr. Bernstein, at the time of the Booker trial, was a seasoned attorney who had been with the public defender’s office about four years and had handled approximately four hundred felony cases and tried approximately ninety-six cases prior to representing Mr. Booker. He had handled some twelve to fifteen felony cases dealing with insanity issues prior to Booker’s case. Mr. Bernstein had tried, through penalty phase, one capital case, assisted in one more, and tried a third which never got to a penalty phase due to a not-guilty verdict. In addition, Mr. Bernstein had attended a statewide seminar for defense attorneys on the subject of capital cases prior to the Booker trial and was a senior member of the staff of the public defender’s office at the time.

The court found that in preparation of this case Mr. Bernstein took depositions of fifteen to eighteen witnesses, reviewed some fifty-five pieces of evidence prior to trial that the state introduced at trial. He filed numerous motions dealing with the constitutionality of the death penalty in Florida as reflected by the record on appeal. During the preparation of this case for trial Mr. Bernstein was in constant consultation with other members of his office regarding the issues of this case and, according to his testimony, did everything he could think of to prepare this case for trial and its penalty phase. This is exemplified by his testimony that voir dire in this case was very important to both the capital nature of the offense and the insanity defense and the record indicates that some four hundred twenty-nine pages were devoted to this portion of the trial.

After identifying early the sole defense to these charges as an insanity/lack of premeditation defense, Mr. Bernstein did the following to support and promote that defense: conducted several interviews with defendant; moved for and obtained services of three psychiatrists and one psychologist; obtained hospital records from mental experts from Alachua General Hospital and Walter Reed Hospital; obtained mental experts’ depositions of witnesses connected with Booker at or near the time of the crime; obtained from mental experts letters and notes from Booker to other parties including a suicide note and a pathologist’s report describing the nature of the killing; had several meetings with the court-appointed mental experts and called one such expert at the guilt phase of the trial and relied on the opinion of a second at the sentencing phase of the trial.

Although defense experts testified that Mr. Bernstein should have gone further and provided these experts further information regarding additional hospitalizations of Booker as well as his school and military records and some juvenile court records, the record is clear and unrebutted that the appointed medical/mental experts for Mr. Bernstein never requested these from Mr. Bernstein before reaching their opinion as to the mental condition of Booker. The record shows that one or more of these doctors was versed in and had been doing legal sanity and mental issues testing for the courts for some time, approaching one hundred cases prior to Booker’s case. Mr. Bernstein relied on these experts to determine what material they needed to render their expert opinions.

The trial court found Mr. Bernstein’s actions to be reasonable reliance by an attorney practicing law in 1978. We have considered the record in full and we agree with this conclusion. In addition, the trial court also found that the decision by Mr. Bernstein at trial to use the testimony of a particular expert rather than medical, school or other hospital records to establish Booker’s possible prior organic brain syndrome or schizophrenia was a reasonable trial strategy.

It was also alleged by expert attorneys for Booker that the failure of Mr. Bernstein to contact family members was a deficiency that illustrated his incompetency and/or ineffectiveness. The trial court found that Mr. Bernstein made reasonable efforts to obtain this information through interviews with Booker, checks with Booker’s past records, calls to Booker’s prior counsel in a prior robbery trial and otherwise. Mr. Bernstein also testified that, while the information in the grandmother’s affidavit might have opened new avenues to explore, he could not say it would have changed the outcome of the case via jury verdict, jury recommendation of sentence or the court’s actual sentence. We agree with the trial court’s conclusion that there is no merit to this portion of Booker’s argument on his ineffective assistance of counsel claim.

The trial court carefully listened to the testimony of defense experts on law dealing with such subjects as the absence of medical records, the absence of a competency hearing, the need for a neurologist in the case, how a penalty phase should be prepared for, and what an expert doctor should have in the way of information. The trial court was able to judge the demeanor of these witnesses and hear what parts of the record they read or failed to read and whether they had talked to Booker or Mr. Bernstein 'as to trial strategy with the experts. It is the trial court’s responsibility to judge the usefulness of this testimony, being the ultimate trier of fact in this cause. The trial court found that Mr. Bernstein did conduct the trial and penalty phases in an effective, competent manner in 1978. The test is one of reasonableness and effectiveness of counsel and we cannot disagree with the trial court’s conclusion that Booker did receive reasonable and effective counsel through the representation of Mr. Bernstein during the trial and penalty phase.

The court also found that Mr. Bernstein conducted a thorough, lengthy pre-trial investigation reasonably focused on the insanity defense. It was Mr. Bernstein’s trial strategy to try for second-degree murder should the insanity defense fail. This strategy was reasonable in light of the overwhelming evidence against his client. We agree with the court’s conclusion that Booker has failed the second prong of the Knight test, i.e., Booker has not shown an act or omission which was a substantial and serious deficiency measurable below the standard of competent counsel. Certainly, Booker has demonstrated nothing which, under the third prong of Knight, would have caused the results of the case to be different.

Accordingly, we find no error and affirm the order of the trial court denying Booker’s motion for post-conviction relief.

Booker bases his petition for writ of ha-beas corpus on the claim that he was denied proportionality review of his sentence on his direct appeal from his conviction and sentence of death. 397 So.2d at 910. We disagree.

In State v. Dixon, 283 So.2d 1, 10 (Fla.1973), cert. denied sub nom. Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), we stated that review by this Court guaranteed that a similar result would be reached under similar circumstances in other cases. This Court’s interpretation of section 921.141, Florida Statutes (1981), was upheld by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976):

By following this procedure [proportionality review] the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute. [Citation omitted] And any suggestion that the Florida court engages in only cursory or rubber-stamp review of death penalty cases is totally controverted by the fact that it has vacated over one-third of the death sentences that have come before it.

Id. at 259, 96 S.Ct. at 2969. See also Herzog v. State, 439 So.2d 1372 (Fla.1983), and Routly v. State, 440 So.2d 1257 (Fla.1983).

The fact that the issue of proportionality review is pending in the United States Supreme Court in Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982), cert. granted, - U.S. -, 103 S.Ct. 1425, 75 L.Ed.2d 804 (1983) (in Pulley v. Harris), is of no significance to the instant case. The United States Supreme Court has stated that the issue will not apply to states which are already conducting proportionality review. The United States Supreme Court has already approved of this Court’s method of review in a specific statement in Proffitt and this Court has repeatedly stated that we conduct proportionality review in all death cases.

Recently, in Messer v. State, 439 So.2d 875 (Fla.1983), we specifically stated that just because proportionality is not mentioned in its opinion on direct appeal, that does not mean that proportionality review has been omitted. This Court quoted from Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981), in which we previously noted that the Court’s review process insured proportionality among the various death sentences. Therefore, although we did not specifically mention other capital cases in our decision on Booker’s direct appeal, we did in fact undertake proportionality review. That review is an inherent aspect of our review of all capital cases. We need not specifically state that we are doing that which we have already determined to be an integral part of our review process.

We find that Booker is not entitled to relief and therefore deny his petition for writ of habeas corpus and for writ of mandamus.

We find no error on the part of the trial judge in denying the Rule 3.850 motion. We affirm the judgment of the court below, and we deny any further stay of execution.

No petition for rehearing will be entertained.

It is so ordered.

ALDERMAN, C.J., and BOYD, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM. PER CURIAM. FERGUSON, Justice

text:
    ASSOCIATION OF GOLDEN GLADES, CONDOMINIUM CLUB, INC., Appellant, v. GOLDEN GLADES CLUB RECREATION CORP., a Florida corporation, Appellee.
    No. 81-1692.
    District Court of Appeal of Florida, Third District.
    April 26, 1983.
    On Rehearing Nov. 29, 1983.
    Horton, Perse & Ginsberg, Ivan S. Benjamin, Miami, for appellant.
    Cypen & Cypen, Buchbinder & Elegant, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.

       Chief Judge Schwartz participated in the decision on rehearing, but did not hear oral argument on rehearing or original submission.

   PER CURIAM.

Section 718.401(8), Florida Statutes (1981), which prohibits rental escalation clauses in leases for condominium recreational facilities does not apply to prohibit enforcement of such clauses in contracts which antedate the statute. Fleeman v. Case, 342 So.2d 815 (Fla.1976).

Affirmed.

Before SCHWARTZ, C.J., and NES-BITT and FERGUSON, JJ.

ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration after rehearing, we adhere to the opinion and decision of April 26, 1983.

FERGUSON, Justice

(dissenting).

Appellant, Association of Golden Glades Condominium Club, Inc. (Association), appeals from a final judgment in favor of appellee, Golden Glades Club Recreation Corp. (Golden Glades), which holds that a cost of living adjustment to rents put into effect on January 1, 1975 is valid and enforceable, and which awards appellee the increased rents for the entire five-year period from January 1,1975 through December 31, 1979. This judgment was rendered after remand from our earlier opinion in Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium Club, Inc., 385 So.2d 103 (Fla. 3d DCA), rev. denied, 392 So.2d 1374 (Fla.1980). In that opinion we partially reversed a summary final judgment entered in favor of the Association and remanded with instructions to consider further evidence on the question of whether the judgment, which dismissed Golden Glades’ claim for all unpaid rent, was overbroad.

The question presented this time is whether Section 711.231, Florida Statutes (1975) — which renders unenforceable rent escalation clauses in condominium leases, and which applies to those leases which incorporate by reference subsequent amendments to the Condominium Act, Chapter 711 — impacts leases which pre-date the statute so as to preclude collection of those escalated rents which become due subsequent to the effective date of the statute. The majority says no. I disagree. My view is strengthened by Angora Enterprises, Inc. v. Cole, 439 So.2d 832 (Fla.1983), the most recent supreme court decision in this area, which will be discussed later. I would note at the outset that Fleeman v. Case, 342 So.2d 815 (Fla.1976), relied upon by the majority, is not controlling because that case, unlike this one, did not involve a lease agreement which incorporated by reference amendments to the Condominium Act. See Angora Enterprises, Inc. v. Cole, 439 So.2d at 834.

In March, 1970, Golden Glades and the Association entered into a written lease which contained an escalation clause providing for adjustments to rental payments, based upon a cost of living index, at five-year intervals, commencing January 1,1975, and continuing each five years thereafter throughout the term of the ninety-nine year lease. The first rental increase was put into effect on January 1, 1975. Section 711.231, Florida Statutes (1975) became effective on June 5, 1975.

Appellant contends that the effect of incorporating Section 711.231 by reference into the long-term lease was to render the escalation clause unenforceable as to amounts due subsequent to June 5, 1975, the effective date of the statute. Appellant concedes that appellee is entitled to the escalated amount from January 1, 1975 to June 5, 1975. In response, appellee contends that because the first five-year period rent increase went into effect on January 1, 1975, which was prior to the statute’s effective date of June 5, 1975, its right to the increased rents for the entire period from January 1,1975 through December 31, 1979 became vested. Appellee argues that Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978) is controlling here.

In Kaufman this court held that a trial judge was correct (1) in refusing to invalidate a rent increase of May 21, 1974, which occurred before the effective date of the statute, and (2) in prohibiting further rent increases after the effective date of the statute. We were not called upon in Kaufman, and did not answer the question now presented, i.e., whether the increase of January 1, 1975 could be enforced past June 5, 1975, the effective date of the anti-escalation amendment.

Addressing appellee’s contention that all escalated amounts of rent for the period from January 1, 1975 to December 31, 1979 became vested on January 1, 1975, I agree with appellant’s response that obligations flowing from a lease which are to become due at some future date are not vested but are merely contingent. De Vore v. Lee, 158 Fla. 608, 610-611, 30 So.2d 924, 926 (Fla.1947). The court in De Vore noted that:

[T]he undertaking to pay rent periodically ripens into a debt only as the times for payments of rent arrive, [cites omitted]. In other words, the debt becomes fixed from time to time as the amount of rental is earned by the use of the property by the lessee. An obligation for the full amount that the lessor would eventually receive from the lessee for the occupancy of the property for the entire time mentioned in the lease would not be established merely upon the execution of the instrument, for “rent does not accrue to the lessor as a debt or claim, unless payable in advance, until the lessee has enjoyed the use of the premises.... ” Id. at 611, 30 So.2d at 926.

Since the rent increase payments from January 1, 1975 through December 31, 1979 were not payable in advance, but accrued and were payable each month, appellee had no “vested” right to receive those payments accruing after June 5, 1975, when, according to Section 711.231, that part of the lease agreement which provided for escalation beginning January 1, 1975 was no longer enforceable.

Angora Enterprises, Inc. v. Cole, the most recent supreme court foray into the quagmire, comes close but still falls short of answering the question. There it was held that since the parties had agreed to be governed by future amendments to the Condominium Act, they therefore agreed to be bound by Section 711.231 which renders the escalation clause unenforceable. Angora thus supports my view because there is a reasonable inference that unenforceable means that the executory part of the escalation agreement would be void even as to a contract which predated Section 711.231. Appellee counters, correctly, that Angora does not expressly state that Section 711.-231 is to be applied to a rent increase which took effect prior to the statute’s effective date. The reasonable inference aside, it cannot be determined from the facts in Angora whether the rent escalation clause, which was rendered unenforceable, took effect prior to June 5,1975. So neither Kaufman nor Angora have laid to rest the precise question.

Because Section 711.231, Florida Statutes (1975) is incorporated by reference as part of the Declaration of Condominium and the lease, the trial court, in my opinion, erred in entering final judgment in favor of ap-pellee Golden Glades for the full amount of rent increase from January 1,1975 through December 31, 1979, and in enforcing the escalation clause of the subject recreation lease subsequent to June 5, 1975, the date Section 711.231 went into effect and became incorporated into the lease agreement. See Angora Enterprises, Inc. v. Cole; see also Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G, Condominium Association, 361 So.2d 128 (Fla.1978); Coral Isle East Condominium v. Snyder, 395 So.2d 1204 (Fla. 3d DCA), rev. denied, 407 So.2d 1105 (Fla.1981); Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium, Inc., supra.

The question presented by this appeal is of great public interest and should be certified to the supreme court.

      . Fleeman v. Case expressly did not decide whether lease arrangements for individual unit owners may in some instances “be unconscionable, inequitable or contain other deficiencies recognized in law as a basis for judicial invali-dation_” 342 So.2d at 818.
      In Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d DCA 1982), this court was faced with the issue whether a certain rent escalation clause tied to the Consumer Price Index was unconscionable under Florida contracts law. Based on the record presented, the trial court’s refusal to enforce the proviso in futuro was upheld.

      . Rent escalation clauses in condominium leases were declared void under Section 711.236 as created by Chapter 75-61, Laws of Florida [codified as Section 711.231, Florida Statutes (1975)]. Section 718.401(8)(a), Florida Statutes (1981), which is the renumbered version of Section 711.231, provides in part:
      It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in land leases or other leases or agreements for recreational facilities, land, or other commonly used facilities serving residential condominiums, and such clauses are hereby declared void for public policy, [e.s.]

      . I think it significant that the legislature used the word “enforcement” (see n. 1) which denotes that even as to a contract which was valid at its inception the agreement could be rendered nonperformable. The word “void”— used in the same sentence — when applied to contracts, commonly means without legal effect ab initio. National Union Indemnity Co. v. Bruce Bros., Inc., 44 Ariz. 454, 38 P.2d 648, 652 (1934). But here it must be given another accepted meaning — that the agreement is without legal force so far as it is executory, see Griffin v. Smith, 101 F.2d 348, 349 (7th Cir.1938), cert. denied, 308 U.S. 561, 60 S.Ct. 73, 84 L.Ed. 471 (1939) in order that the terms harmonize. Section 711.231 could not be applied to void the escalation clause as to the part governing rent increases for the period from January 1, 1975 to June 5, 1975, since that part of the escalation clause had been executed prior to the date the statute became effective. To apply the statute to that executed portion of the contract would amount to an unconstitutional impairment. See Fleeman v. Case, infra. In the case of a contract which is affected' in an unforeseen fashion due to a subsequent occurrence, no issue of unconstitutional impairment is presented where the parties by terms of the same instrument agreed that the contract was subject to that occurrence. See Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G, Condominium Association, 361 So.2d 128, 133 (Fla.1978).

      .Because the Declaration of Condominium states that the provisions of the Condominium Act “as the same may be amended from time to time” are incorporated by reference, and the Declaration makes reference to the long-term lease as being attached to the Declaration and “made a part hereof,” the lease is also subject to the incorporation by reference language. Angora Enterprises, Inc. v. Cole; Souci v. Division of Florida Land Sales and Condominiums, 421 So.2d 623, 629 (Fla. 1st DCA 1982).
      The incorporation by reference question was decided in favor of appellant in the earlier opinion of this case, Golden Glades Club Recreation Corp. v. Association of Golden Glades Condominium Club, Inc.

      . Because the question of the enforceability of the May 21, 1974 increase past June 5, 1975 was never specifically presented to the Kaufman court, that court’s approval of the trial court’s prohibition against further rent increases subsequent to the effective date of the statute need not necessarily be interpreted as applying only to the next five-year interval of increase, thereby permitting the lessor to collect all the monthly escalation payments for the initial five-year period beginning in May, 1974. Apparently, this was the interpretation made by the trial court when, in entering an order on August 18, 1978 after the conclusion of the interlocutory appeal, it awarded the lessor the escalation sums for the entire period from June 1, 1975 through April, 1978, along with interest.

      . See supra note 3.


text:
    Evert A. BANCKER, Jr., Appellant, v. Patricia Drabant BANCKER, Appellee.
    No. 82-1517.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 30, 1983.
    John B. Di Chiara of Di Giulian, Spellacy & Di Chiara, Fort Lauderdale, for appellant.
    Robert A. Huth, Jr., Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, HERSEY and WALDEN, JJ., concur.


text:
    HEMMERLE DEVELOPMENT CORPORATION, a Florida corporation and Popejoy-Daboub Corporation, a Florida corporation, Appellants, v. The ESTATE OF Susie MADAR, a/k/a Susan Madar, deceased, Appellee.
    No. 82-977.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 1983.
    Rehearing Denied Sept. 2, 1983.
    Charles A. Goff of Casoria, Goff & Friedman, P.A., Fort Lauderdale, for appellants.
    Bruce Zeidel of Cohen, Scherer & Cohn, P.A., North Palm Beach, and Thomas B. Griffith, Boca Raton, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, LETTS and HURLEY, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge, HURLEY, Judge,

text:
    Bernard HOROWITZ and David Horowitz, Appellants, v. STATE of Florida, Appellee.
    No. 82-2134.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Harry M. Solomon of Joel Hirschhorn, P.A., Miami, for appellant, Bernard Horowitz.
    Michael Tarre, Miami, for appellant, David Horowitz.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, J., concurs.

GLICKSTEIN, J., concurs with opinion.

HURLEY, J., dissents with opinion.

GLICKSTEIN, Judge,

concurring.

I agree with the affirmance.

The trial court’s original order upon which the present appeal was based recited two reasons for denying relief; namely, the legal insufficiency of appellants’ motion and the absence of support for his claims in the record. We issued an order requiring the trial court to forward the applicable portions of the record upon which it relied for the latter reason only as Florida Rules of Criminal Procedure 3.850 specifically requires the following:

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order.

We elected to proceed by order rather than remanding the case with a formal opinion in the interest of judicial economy.

In my view the trial court complied with the requirements of the rule. It subsequently forwarded the complete transcript of the trial, having referred thereto in the order being appealed. It is my further view that it is not incumbent upon the trial court to specify the particular parts of the transcript upon which it relies.

HURLEY, Judge,

dissenting.

The trial court’s order denying appellants’ motions for post-conviction relief is not accompanied by a specific portion of the record which conclusively shows that the prisoners are entitled to no relief. See Rule 3.850, Fla.R.Crim.P., Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). Consequently, I would remand the cause with instructions to delineate the specific portions of the record or grant an evidentiary hearing.


author: OTT, Chief Judge.

text:
    STATE of Florida, Appellant, v. Anthony Ray PEEK, Appellee.
    No. 83-129.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1983.
    As Corrected on Denial of Rehearing Nov. 14, 1983.

      Jim Smith, Atty. Gen., Tallahassee, Robert J. Landry, Asst. Atty. Gen., Tampa, and Michael J. Minerva, General Counsel, Tallahassee, for appellant.
    Edward S. Stafman, Tallahassee, for ap-pellee.
   OTT, Chief Judge.

The trial court awarded appellee’s attorney $1,898.11 for various costs incurred in representing appellee before the Executive Clemency Board. This cost award was in addition to a fee award of $1,000.00. In appealing, the state contends that the cost award exceeds the maximum sum allowed by law.

Section 925.035(4), Florida Statutes (1981), provides as follows:

(4) If the death sentence is imposed and is affirmed on appeal to the Supreme Court, the appointed attorney shall be allowed compensation, not to exceed $1,000, for attorney’s fees and costs incurred by representing the defendant as to an application for executive clemency, such compensation to be paid out of general revenue from funds budgeted to the Department of Corrections. The public defender or an attorney appointed pursuant to this section may be appointed by the trial court that rendered the judgment imposing the death penalty, to represent an indigent defendant who has applied for executive clemency as relief from the execution of the judgment imposing the death penalty.

(Emphasis supplied.)

The state requests this court to interpret the underlined words as a single limit of $1,000.00 for both attorney’s fees and costs incurred.

Section 925.035(4) should be read in pari materia with section 925.036, which provides as follows:

(1) An attorney appointed pursuant to s. 925.035 ... shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit; however, such compensation shall not exceed the maximum fee limits established by this section. In addition, such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court.

(Emphasis supplied.)

When read together we think it is clear that the legislature intended — and clearly provided — that reasonable costs would be determined and awarded by the original trial court in addition to a reasonable fee for his services. The $1,000.00 statutory limit applies only to the fee for services.

_ While we find no cases on point, we do find some support in the rationale of the Florida Supreme Court in Wakulla County v. Davis, 395 So.2d 540 (Fla.1981). In Wakulla, the court interpreted section 925.036, Florida Statutes (Supp.1978), to allow court-appointed attorneys to stack attorney’s fees when representing an indigent defendant on multiple counts. The supreme court reasoned:

If stacking is not permitted, the result could be quite unfair and unreasonable to the court-appointed attorney. He might be forced to defend a client on multiple nonlife felonies, and life felonies joined with a capital case, spend a large amount of time thereon, and still be limited to $2,500 in compensation for his services, as in this case. It is illogical to construe the law so that regardless of the number of charges on which a client is defended, his attorney is limited to a $2,500 fee. It is also illogical to construe the law in such a manner as to completely nullify the $2,000 maximum for life felonies simply because that offense is joined in the same prosecution with a separately punishable capital felony. Such is the case here. It would be much more reasonable and just to allow the attorney to stack the máxi-mums for each offense for which his client was tried. Under that interpretation, the attorney would be more realistically and fairly compensated for the time spent on the case, and less likely forced to accept what might often turn out to be unfair compensation for his representation.

We hold that an attorney who represents a defendant before the Executive Clemency Board, as provided by these statutes, is entitled to compensation for his services (a fee) in an amount not to exceed $1,000.00. In addition, he may be awarded those costs incurred that the court finds reasonable and proper.

The record does not support the state’s remaining contention that it was not afforded notice and an opportunity to be heard. It appeared before the trial court and filed a memorandum with the trial court on the petition, essentially arguing the same position asserted in this appeal. It did not object to or question the reasonableness or propriety of any of the items of cost.

The award of costs is therefore affirmed.

DANAHY and SCHOONOVER, JJ., concur.

      . We note that since the Florida Supreme Court opinion in Wakulla County v. Davis, 395 So.2d 540 (Fla.1981), was issued, the Florida Legislature amended section 925.036, Florida Statutes (1978 Supp.), to increase certain fee máximums and prohibit the stacking of fees. § 925.036, Fla.Stat. (1981). If our interpretation of sections 925.035(4) and 925.036, Florida Statutes (1981), does not accord with the present intent of the legislature, the legislature can correct with a specific amendment,


text:
    Larry John BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 82-452.
    District Court of Appeal of Florida, Fifth District.
    Oct. 20, 1983.
    James B. Gibson, Public Defender, Tallahassee, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Bumgarner v. State, 245 So.2d 635 (Fla. 4th DCA 1971); Manning v. State, 234 So.2d 16 (Fla. 2d DCA 1970); Nelson v. State, 208 So.2d 506 (Fla. 4th DCA 1968); Breamfield v. State, 166 So.2d 484 (Fla. 3d DCA 1964).

ORFINGER, C.J., and DAUKSCH and COBB, JJ., concur.


text:
    John RADNAY, Appellant, v. NEW ENGLAND SEA FOOD UNLIMITED, INC., Appellee.
    No. 83-1941.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Denied Dec. 8, 1983.
    Gerald Beyer and Charles D. Franken, Fort Lauderdale, for appellant.
    Hayden & Milliken and John D. Kallen, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See: Robb v. Picarelli, 319 So.2d 645 (Fla. 3d DCA 1975); Section 48.-161 Florida Statutes (1979); Compare: Martino v. Florida Insurance Guaranty Association, 383 So.2d 942 (Fla. 3d DCA 1980).


text:
    Charles J. COSBY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-745.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 9, 1983.
    Ginsburg, Nagin, Rosin & Ginsburg, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Edwards v. State, 439 So.2d 1028 (Fla. 3d DCA 1983); Cuciak v. State, 410 So.2d 916, 918 (Fla.1982); Raulerson v. State, 358 So.2d 826, 830 (Fla.1978), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978); Hines v. State, 358 So.2d 183, 185 (Fla.1978).


author: BASKIN, Judge.

text:
    SOUTH SHORE HOSPITAL and Hartford Accident and Indemnity Company, Appellants, v. William EASTON, M.D., and Argonaut Insurance Company, Appellees.
    No. 81-2444.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.

      Horton, Perse & Ginsberg and Arnold Ginsberg, H. Dane Mottlau, Miami, for appellants.
    Stephens, Lynn, Chernay & Klein and Robert Klein, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Loretha Barnes died during an operation at South Shore Hospital. Personal representatives of her estate sued Dr. Easton and South Shore Hospital on behalf of her survivors and on behalf of the estate. Dr. Easton and his insurer settled the estate’s claim. They received a release providing:

KNOW ALL MEN BY THESE PRESENTS:
That We NAN GREEN and WILLIE GREEN, as co-administrators of the Estate of LORETHA BARNES, deceased,
First party, for and in consideration of the sum of TWO HUNDRED THOUSAND DOLLARS, or other valuable considerations, received from or on behalf of
WILLIAM EASTON, M.D. and ARGONAUT INSURANCE COMPANY,
second party, the receipt whereof is hereby acknowledged,
HEREBY remise, release, acquit, satisfy, and forever discharge only the said second parties of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialities, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said first parties ever had, now had [sic], or which any personal representative, successor, heir or assign of said first parties, hereafter can, shall or may have, against said second parties for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents.
This Release shall include all claims which the first parties now have or might have against WILLIAM EASTON, M.D. and ARGONAUT INSURANCE COMPANY arising from medical treatment received by LORETHA BARNES, deceased, while a patient at Southshore Hospital and Medical Center on April 24, 1974 but shall not release any other persons or corporations and specifically shall not release any claims of Southshore Hospital and Medical Center, a Florida corporation, and Hartford Accident and Indemnity Company, a foreign corporation.
Further, this Release, although complete as to WILLIAM EASTON, M.D. and ARGONAUT INSURANCE COMPANY, is expressly made in consideration of payment of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) for the claim of the Estate (that is, loss of net accumulations as set forth in the Florida Standard Jury Instructions) and none of said payment shall be for the claims of the surviving children of LORETHA BARNES, deceased, it being agreed that the claim of the Estate for loss of net accumulations has a value for settlement purposes of $200,000.00 but that the claim of the survivors exceeds substantially in value this amount, and that this Release is not intended to alter in any way the liability of Southshore Hospital and Medical Center and Hartford Accident and Indemnity Company to NAN GREEN and WILLIE GREEN as co-administrators of the Estate of LORETHA BARNES, deceased, for the benefit of each of the surviving children of LORE-THA BARNES, deceased, (emphasis added)

When the action filed by the personal representatives on behalf of the children resulted in a verdict of $500,000 against the hospital, the hospital tried unsuccessfully to set off the $200,000 paid on behalf of Dr. Easton’s obligation against the $500,000 award. Upon failing to obtain a set-off, South Shore sought contribution from Dr. Easton, but the trial court rejected South Shore’s claim and granted summary judgment in favor of Easton and his insurer.

The issue presented in this appeal is whether the release provided by the personal representatives precludes South Shore from obtaining contribution from Easton toward payment of the children’s claims.

The Florida Wrongful Death Act, section 768.21, Florida Statutes (1981) provides:

768.21 Damages. — All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent’s injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(3) Minor children of the decedent may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
(6) The decedent’s personal representative may recover for the decedent’s estate the following:
(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:
1. If the decedent’s survivors include a surviving spouse or lineal descendants;

The Act contemplates that damages allowed the estate are separate and distinct from damages recoverable by the deceased’s survivors.

A further indication that the claims are distinct appears in Florida Standard Jury Instruction 6.6(b) and its comment. Net accumulations are recoverable, according to the comment, only when a spouse or lineal descendant is a survivor,

b. Lost accumulations:

The estate’s loss of net accumulations: “Net accumulations” is the part of the decedent’s net income [from salary or business] after taxes, including pension benefits [but excluding income from investments continuing beyond death], which the decedent, after paying his personal expenses and monies for the support of his survivors, would have left as part of his estate if he had lived his normal life expectancy.
Comment on 6.6b
Lost accumulations are recoverable only when the decedent’s survivors include a spouse or lineal descendant. Further instructions may be required if there is evidence that the decedent had income not qualifying as “net business or salary income” within the meaning of § 768.-18(5) F.S.

The release executed by the personal representatives in exchange for $200,000 discharged the doctor only from claims by the estate. It recognizes, however, that the children’s damages exceed $200,000. Thus, the release applies to damages under section 768.21(6), but does not affect damages recoverable under section 768.21(3).

The Uniform Contribution Among Joint Tortfeasors Act, section 768.31(5), Florida Statutes (1981), states:

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

Because the release extinguishes Easton’s liability only for damages due the estate and not from damages due to the survivors, South Shore may be entitled to contribution under section 768.31(2)(d):

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

Reversed and remanded for further proceedings consistent with this opinion.


author: PER CURIAM. FERGUSON, Judge

text:
    Michael RUDNICK, as Personal Representative of the Estate of Todd Rudnick, a deceased minor, and Michael Rudnick and Darlene Rudnick, individually, Appellants, v. Michel Henry NAHMAD, M.D. and Richard E. Litt, M.D., Appellees.
    No. 82-444.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Horton, Perse & Ginsberg and Edward Perse, Miami, Martin J. Schwartz, Hollywood, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and A.H. Toothman, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellees.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed.

FERGUSON, Judge

(concurring).

This appeal is brought from a judgment on a jury verdict for defendants/physicians in a medical malpractice action.

The point on appeal. — whether the court erred in failing to charge the jury on a total absence of consent to perform an intravenous pyelogram — does not address an issue framed by the pleadings. Neither was there a motion made at trial to conform the pleadings to the evidence.

It was alleged in the complaint that the plaintiffs gave uninformed consent to conduct a “kidney x-ray”; the case was tried on that theory and the jury was gven an instruction on lack of informed consent. The case was not tried, impliedly, on a theory of total absence of consent as is argued by appellant. Total lack of consent states a cause of action for trespass or battery and requires proof different from that required to establish uninformed consent. See Meretsky v. Ellenby, 370 So.2d 1222 (Fla. 3d DCA 1979) (in cases of trespass or battery it is not the opinion of doctors regarding the practice in the medical community which determines whether the tort has been committed).


text:
    Berry O. RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1703.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Bennett H. Brummer, Public Defender, and Claudia B. Greenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Watson v. State, 437 So.2d 702 (Fla. 4th DCA 1983); Dupree v. State, 436 So.2d 317 (Fla. 1st DCA 1983); Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982); Beck v. State, 405 So.2d 1365 (Fla. 4th DCA 1981); Rowan v. State, 252 So.2d 851 (Fla. 3d DCA 1971).


text:
    The STATE of Florida, Appellant, v. Jose CASO, Appellee.
    No. 82-1806.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellant.
    No appearance for appellee.
    Before HUBBART, NESBITT and PEARSON, DANIEL S., JJ.
   PER CURIAM.

For the reasons and authorities cited in State v. Spencer, 432 So.2d 718, 720 (Fla. 3d DCA 1983), the order granting the defendant’s motion to suppress is reversed and the case is remanded for further proceedings.