text:
    Tommy Elisha HALL v. Hazel Laverne HALL.
    Civ. 3855.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.

      T.M. Brantley, Bay Minette, for appellant.
    Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The husband states several propositions of law in his brief, but, when they are reduced to issues, he complains that the trial court erred in two respects. We affirm.

Two different circuit judges were concerned with the contested litigation. The first was judge Hayes, who initially tried the case and rendered a final judgment on August 5, 1982, which divorced the parties (perhaps), divided their property, and awarded custody and support for their three minor children, but it did not provide for periodic alimony for the wife. On August 11, 1982, the wife filed her motion under Rule 59 of the Alabama Rules of Civil Procedure that the trial court reconsider its actions, and Judge Hayes set it for a hearing for October 25,1982. On August 25, 1982, Judge Hayes signed a very pivotal order or judgment which read “Motion to reconsider, GRANTED.” No notice was given to the attorneys of that order and the motion was argued by counsel before the trial court on October 25, 1982, but no order was then, or subsequently, entered upon the motion, although Judge Hayes apparently indicated that it would be overruled. The wife by new counsel, uninformed of the August 25 ruling, gave notice of an appeal on November 22, 1982, but her counsel did not pursue the appeal when it was ascertained that the wife’s August 11 motion to reconsider had been granted on August 25, 1982.

’ Judge Hayes was succeeded as circuit judge by Judge Enfinger in January 1983. Alabama Reporter, 418-420 So.2d at XIII.

On February 10, 1983, the husband sought to amend the August 25, 1982 judgment under Rule 60(a) so as to deny the wife’s motion to reconsider rather than granting it. Among supporting exhibits to the 60(a) motion, as subsequently amended, was an affidavit of former Judge Hayes wherein he briefly outlined some of the history of the litigation commencing with the August 5, 1982 final judgment and it concluded as follows:

“I have examined the Case Action Summary in this cause wherein it appears that on the 25th day of August, 1982, an entry was made “Motion to reconsider, GRANTED.” It was not my intent to reconsider this divorce matter and this entry was made by way of a clerical error and should be stricken, and the following substitution “Motion to reconsider, DENIED.”

Judge Enfinger denied the husband’s 60(a) motion on March 17, 1983, and that adverse ruling constitutes the husband’s first issue.

The wife primarily argues that the husband’s motion asked for such a substantial change in the judgment as to not be a clerical error of Judge Hayes but, rather, that it falls within the purview of Rule 60(b) instead of 60(a). We cannot accommodate that contention, for a recent decision of our supreme court clearly places the husband’s motion under the provisions of Rule 60(a). Continental Oil Co. v. Williams, 370 So.2d 953 (Ala.1979).

While we have no particular disagreement with the husband’s propositions of law which were presented and argued by his able counsel, the decisive issue for our decision is whether Judge Enfinger abused the discretion which is possessed by a trial court when the husband’s Rule 60(a) motion was denied.

Traditionally, a trial court has had the discretionary power to grant ór deny the opening, modification or vacation of a judgment and the action so taken by the trial court would not be disturbed on appeal unless it was shown to be palpably wrong. Grigsby v. Liles, 274 Ala. 67, 147 So.2d 846 (1962). That rule has been retained in amending alleged mistakes under Rule 60(a) and “[Discretion must be allowed the courts in this regard.” Mickle v. Mickle, 334 So.2d 900, 902 (Ala.1976).

The former judge, through the affidavit, could not dictate the present judge’s decision, nor could he exercise that judge’s discretion. Judge Enfinger solely had the discretion to grant or deny the 60(a) relief. It is noteworthy that Judge Hayes’ affidavit does not state facts from which it may be ascertained with reasonable certainty that the August 25,1982 order was entered through his oversight or mistake. Much of the quoted portion of the affidavit was conclusionary in nature and Judge Enfinger was not bound by any unauthorized conclusion in it.

We find no palpable abuse of the court’s discretion in denying the Rule 60(a) motion.

After the second ore tenus trial on April 28, 1983, Judge Enfinger entered a final judgment. Among other provisions, it divorced the parties for incompatibility, awarded custody of the three minor children to the wife, ordered the husband to pay to the wife $350 per month per child as child support and $1,000 per month as periodic alimony. The property was divided with the wife receiving the home, the personal certificates of deposit, the furniture and a 1975 Cadillac automobile. The husband was awarded their business, named Hall’s Auto Supply, a travel trailer and his boat, motor, and boat trailer.

No contention is made by the husband that the division of property was inequitable; however, he earnestly argues that the awarded child support and periodic alimony were so excessive as to constitute an abuse of discretion.

In review of the record congruent with the attending presumptions of correctness of the findings of the trial court, the following supportive evidence is revealed.

The wife received a twenty-year-old house which was purchased for $11,500 to which further rooms costing $15,000 and a $10,000 swimming pool had been added by the parties. Her furniture and car were not valued, but the house and certificates of deposit awarded to her could have been evaluated by the trial court to be worth as low as $150,000. The business had a book value net worth of $217,000, but the wife’s testimony would have increased that figure by $93,000. The parties testified that each of them had worked exceptionally hard and long in establishing and building up the business since January 1970. The wife received no salary for the first five years.

The parties have been married for twenty-two years. The wife has only worked at two jobs in her lifetime. Since their separation, she has unsuccessfully sought employment at a number of parts businesses as well as in industry.

The parties have four children, one of whom is over nineteen years of age. The three minor children reside with the wife and were eight, ten and sixteen years of age at the time of the last trial. The wife itemized monthly expenses for herself and the three children in excess of $1,625. However, she did not include in that total a number of her individual expenses, such as clothing, incidentals, entertainment, automobile repairs and replacement, cosmetics, dental, medical, house maintenance or the replacement or repairs of appliances, furniture and household goods. Orthodontic expenses are anticipated for the two younger children when they reach the proper age.

In recent years, the automobile parts business which was awarded to the husband had netted an average net income of around $50,000, the highest being $60,000 in 1980. An accountant testified that, for several years, the business had retained earnings of at least $19,000 each year. It has been a growing concern, and there was no evidence to indicate any economic bleakness in its future.

By adding child support, alimony and probable interest from her certificates of deposit, the wife’s present gross receipts approximate $36,000 a year. Assuming a $60,000 gross income for the husband from the business, and after deducting the awarded child support and periodic alimony therefrom, he will also have a present gross income balance of around $36,000 per year. Stated differently, at the present time and before taxes, the wife and the husband probably will have approximately equal gross incomes.

The evidence having been heard orally by the trial court, its decision as to periodic alimony and child support is presumed to be correct and can be set aside on appeal only when it is palpably wrong. The division of property, the award of periodic alimony and the amount of child support are matters which are very interrelated and which fall within the sound discretion of the trial court and will not be disturbed upon an appeal except for a showing of plain and palpable abuse of that discretion. Pugh v. Pugh, 406 So.2d 966 (Ala.Civ.App.1981); Chernau v. Chernau, 396 So.2d 1061 (Ala.Civ.App.1981); Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980).

While the law does not establish any fixed standard for determining periodic alimony, some relevant factors to be considered are the “future prospects of the parties; their ages, sex, health and station in life; how long they were married; and in appropriate cases, the conduct of the parties with reference to the cause of the divorce.” Phillips v. Phillips, 49 Ala.App. 514, 523, 274 So.2d 71, 79 (1973).

In determining the amount of child support, the needs of the children and the financial ability of the parent to contribute to those needs must be considered. Smith v. Smith, 387 So.2d 224 (Ala.Civ.App.1980).

A prescribed formula to be used in determining the amount of child support or periodic alimony has not been mandated in Alabama. Every case is different and unique. “While established formulas provide for certainty and ease of decision, we have the best system where each decision is tailormade for the facts in every individual case. Hence, a trial judge must, of necessity, be granted discretion....” Smith v. Smith, supra, at 225; Phillips v. Phillips, supra. We have no authority to formularize those matters although, upon the same or similar facts, different amounts will commonly be awarded by the various trial courts in the proper exercise of their judicial discretion.

In conjunction with the attendant presumptions, we have carefully considered all of the evidence, each of the factors governing the award and amount of periodic alimony, the needs of the children, the ability of the father to pay, the possible differences in the property division, and each of the equities here concerned. We cannot say that the trial court was palpably wrong when the entire record and the total scheme of the final judgment are duly considered. We find no clear and perceptible abuse of discretion as to the amount awarded for either child support or periodic alimony. The judgment is supported by competent evidence.

We note that the child support provisions of the judgment authorize an automatic reduction of $350 per month as each child reaches majority, marries or becomes self-supporting. We are further cognizant that the amount of monthly support per minor child and the amount of monthly alimony may be eliminated, reduced or increased if future events produce a material change in the circumstances of the affected parties.

The judgment of the trial court is affirmed.

Appellee’s request for attorney fees on appeal is granted in the sum of $500.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BROADLEAF, INC., a corporation v. Steven F. PIERCE.
    Civ. 4037.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.
    Robert Burdine, Jr., Florence, for appellant.
    Ralph M. Young of Gonce, Young, Howard & Westbrook, Florence, for appellee.
   PER CURIAM.

A summary judgment was entered against the appellant-Broadleaf, Inc., and in favor of the appellee-insurance agent, Pierce. Broadleaf appeals and we revérse and remand.

The dispositive issue is whether there is a genuine issue of a material fact so as to prohibit the entry of a summary judgment.

The record pertinently reveals the following:

A workmen’s compensation claim was filed against Broadleaf, Inc., for an injury occurring on February 3, 1982. Broadleaf filed a general denial and a third-party complaint against its insurance carrier, U.S.F. & G. and U.S;F. & G.’s agent, the appellee-Pierce.

In its third-party complaint, Broadleaf alleged that neither third-party defendant informed Broadleaf of the policy’s cancellation, and that Pierce misrepresented to Broadleaf that the renewal premium was due January 30, 1982, when in fact it was due December 30, 1981. Additionally, Broadleaf alleged that on January 28, 1982, it (Broadleaf) remitted a check to Pierce for what it believed to be the workmen’s compensation policy premium and that Pierce’s misrepresentations led it to believe that it was adequately protected by a U.S.F. & G. workmen’s compensation insurance policy.

The third-party complaint against U.S.F. & G. was tried without a jury and a judgment was entered in favor of U.S.F. & G. No appeal was taken from this judgment.

Thereafter, upon the pleadings, affidavits, counter-affidavits, and previously transcripted testimony, the trial court entered a summary judgment in favor of ap-pellee-Pierce. Hence, this appeal.

It appears appropriate at this point to quote from Silk v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 437 So.2d 112, 113 (Ala.1983), authored by Mr. Justice Maddox:

“The usual rules governing our review of summary judgment apply here. The standard for summary judgment as set forth in Rule 56, Ala.R.Civ.P., has two basic parts: the trial court must determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to judgment as a matter of law. Houston v. McClure, 425 So.2d 1114, 1116 (Ala.1983). Furthermore, this standard is conjunctive. Houston v. McClure, supra; McGuire v. Wilson, 372 So.2d 1297 (Ala.1979). The burden is upon the moving party to clearly show that there is no genuine issue of a material fact, and all reasonable doubts concerning that genuine issue of material fact must be resolved against the moving party. Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981); Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981). The burden is further increased by the scintilla evidence rule, which requires that summary judgment not be granted if there is a scintilla of evidence supporting the position of the non-mov-ant. Fountain v. Phillips, supra; Browning v. Birmingham News, 348 So.2d 455 (Ala.1978).”

With the above principles of law in mind, to this court, there does exist a genuine issue of a material fact, etc.

As indicated, Broadleaf contends there is a genuine issue of a material fact that prohibits the entry of summary judgment.

Pierce, the insurance agent, to the contrary, states there are four areas in which “undisputed” facts mandate affirmance of the judgment below.

After having carefully read the record and having considered arguments, this court is of the opinion that material factual issues do in fact exist and that the judgment by the learned and distinguished trial judge granting summary judgment must be reversed.

Pierce’s first contention in favor of affirmance is that regardless of any alleged misrepresentations by Pierce, the finder of fact could not find that Broad-leaf’s January 28,1982, check was intended as payment for the U.S.F. & G. premium. Pierce’s proof on this issue is as follows: Sometime in December 1981 or January 1982, Pierce’s secretary, Carrie Spivey, prepared a memorandum for Broadleaf, setting out the amounts owed by Broadleaf on four policies of insurance. The memorandum showed an aggregate of $2,853 due on three policies issued by Baldwin Mutual Insurance Company; the fourth policy listed was the U.S.F. & G. policy, with a yearly premium of $4,843 or a $1,210.75 quarterly premium. Subsequently (on January 28, 1982), Broadleaf issued a check payable to Baldwin Mutual for exactly $2,853. Pierce contends that under these facts as a matter of law a finder of fact could not find that Broadleaf intended to pay the premium on the U.S.F. & G. policy.

However, Broadleaf’s version of the relevant facts differs sharply from Pierce’s. Broadleaf admits having received the memorandum prepared by Carrie Spivey; however, Broadleaf, through the affidavit of Renee York (a Broadleaf employee), contends that it did not consult the memorandum when it issued the January 28, 1982, check in her affidavit. Ms. York testified that she received the memorandum in December. Then, in late January, she testified, she actually went to Pierce’s office and told him she wanted to pay all premiums then due. Ms. York said Pierce told her the amount due and to make the check payable to Baldwin Mutual. In light of the factual issues created by Ms. York’s affidavit, appellee’s argument cannot be relied upon to sustain the summary judgment entered below. See, e.g., First National Bank of Birmingham v. Culberson, 342 So.2d 347 (Ala.1977).

Pierce’s second argument in support of affirmance is factually related to the first and is based upon the reliance element of a misrepresentation cause of action. See Earnest v. Prichett-Moore, 401 So.2d 752 (Ala.1981). Pierce’s argument is that “[t]he obvious fallacy with [Broadleaf’s contention that Carrie Spivey’s memorandum caused it to not pay the premium prior to December 30, 1981] is that [Broadleaf] did not pay that premium by the date shown on the memo either.”

The third-party plaintiff’s answer to this argument is the same as its answer to the first: although Broadleaf now admits that the required premium was never remitted to U.S.F. & G., it contends that Pierce’s January 28, 1982, representations to Renee York as to the amount of the check and the name of the payee led Broadleaf to believe it was paying U.S.F. & G.

A third contention by Pierce, also based on the reliance element, is that Broadleaf could not reasonably rely on the incorrect date in the memorandum because it already had knowledge, from other sources, that the policy would expire December 31, 1981. Pierce contends Broadleaf gained this knowledge from the declaration sheet attached to the policy, a premium renewal notice U.S.F. & G. sent Broadleaf on October 6, 1981, and a conversation Renee York had with Carrie Spivey on December 29. Pierce contends that in that conversation Ms. Spivey specifically told Ms. York that the compensation policy premium was due December 30.

This ground cannot be relied on to support the judgment below because Broad-leaf’s evidence conflicts as to notice Broad-leaf received. Not only did Ms. York give a different account of the conversation with Ms. Spivy — she testified in her affidavit that she told Ms. Spivey to merely write down the policies due and that Jack Johnston would come by the office to pick up the list — but also both Johnston and Ms. York denied ever having received any premium renewal notices whatsoever.

A fourth reason appellee gives for affirmance is Broadleaf’s failure to properly plead its fraud cause of action. See A.R.Civ.P. 8(a), 9(b). Here, Pierce argues that Broadleaf failed to allege a specific false representation made by Pierce. Without examining Broadleaf’s complaint to, test the validity of Broadleaf’s argument, this court notes that a party who fails to timely raise the issue of failure to plead with particularity normally waives that requirement. See 2A Moore’s Federal Practice ¶ 9.03 (2d ed. 1982). By failing to raise this pleading defect until after his own summary judgment motion, Pierce has allowed Broadleaf the opportunity to supplement its fraud pleadings with affidavits arid other evidentiary materials which cure the pleading defect by supplying evidence of several false representations. Accordingly, this pleading defect cannot be relied upon to support affirmance.

Summarizing, the affidavit of York and the reasonable inferences therefrom, when viewed in the light most favorable to the nonmoving party, indicate that Broadleaf contacted its insurance agent and asked what it owed on all of its insurance policies. The alleged inquiry was prior to the expiration date of the workmen’s compensation policy. Broadleaf was given a list and amount to be due. The list indicated, according to York, that the workmen’s compensation policy was not due until January 30, 1982. Broadleaf, again according to York, believed that it had paid the indicated amount prior to January 30, 1982.

In view of the above, this court has no alternative but to find there does exist a genuine issue of a material fact regarding the alleged misrepresentation which prohibits the granting of a summary judgment.

The case is reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Jessie TUCKER v. STATE of Alabama.
    Civ. 4104.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1984.

      W. Kenneth Gibson, Fairhope, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a vehicle condemnation case.

The state sought to condemn a particular 1975 Ford Thunderbird automobile under allegations that it was used during the illegal sale of a controlled substance, marijuana. A summons was issued to Tucker and, after being served with process, he filed an answer which denied each allegation of the complaint. An ore tenus trial before the court resulted in a final order of condemnation of the car. Tucker appealed and raises two issues.

I.

The only witness to testify was Lance Monley, whose first job in law enforcement was with the police department of the city of Bay Minette. For two years during that period of time, he worked for the sheriff of Baldwin County as an undercover agent. His employment for the next two years was as a narcotics investigator for the sheriff’s department.

While Monley had previously seen Tucker, he first conversed with him on July 16, 1982 in Fairhope, Alabama. After a “local guy” told Monley to talk to Tucker, the investigator had gone to the Orange Street Pier and Tucker drove there in the Thunderbird. When Tucker parked, the officer went to the driver’s side of the Thunderbird where Tucker was sitting and informed Tucker that he wanted to buy a sack of marijuana; whereupon Tucker handed him a sack of marijuana and Mon-ley paid Tucker $25 for it.

During the four year period when he had been either an undercover agent or a narcotics investigator, Monley had made over one hundred purchases of substances that appeared to him to be marijuana and which had later been proven in fact to be marijuana. He testified that he was familiar with the appearance of marijuana, was familiar with its odor, and was familiar with the manner in which it was packaged for sale. He stated that the marijuana which he purchased from Tucker for $25 was packaged in a plastic bag, a sandwich-type bag, which is standard method of packaging. Those facts and opinions were given without objection.

The 1975 Thunderbird bore tag number BHZ 718, which was issued to Tucker.

In his brief Tucker contends through able counsel that Monley’s evidence was inadequate proof that the contents of the sack was a controlled substance, that the term “marijuana” is limited to Cannabis sativa L. under the code and that the state made no effort to prove that the sack contained the substance.

Here, the complaint used the term “marijuana” and the experienced officer unequivocally identified the substance in the sack as being “marijuana.” It has been held that once a positive identification has been made that a substance is “marijuana” no proof of the chemical content of the substance is necessary. Winnings v. State, 370 So.2d 323, 328 (Ala.Cr.App.), cert. denied, 370 So.2d 329 (Ala.1979). This is because tetrahydrocannabinols, a schedule one controlled substance eommonly called THC, embraces chemically that which is covered by the word “marijuana.” Haynes v. State, 54 Ala.App. 714, 312 So.2d 406 (Ala.Cr.App.1975).

This is a civil condemnation case. The burden of proof upon the state is to establish, not beyond a reasonable doubt, but to the reasonable satisfaction of the trier of fact — the trial court in this instance — that the substance was marijuana. Woods v. State, 247 Ala. 155, 22 So.2d 901 (1945); § 20-2-93(a)(4)(d)(1), Code 1975.

In Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758 (Ala.Cr.App.1971), a possession of marijuana case, it was stated:

“Based on the appellate records of marijuana trials brought to this court we know that, except in the case of the defendant’s admission, the practice of the prosecution has been to produce either a chemical analysis or the opinion of a witness who has seen or studied marijuana. Hence we conclude that this is a realm requiring opinion evidence. See Cano v. State, Tex.Cr.App., 450 S.W.2d 646; State v. Emmett [77] Wash. [2d 520], 463 P.2d 609 (h.n. 5); People v. McLean, 56 Cal.2d 660, 16 Cal.Rptr. 347, 365 P.2d 403; Miller v. State, 168 Tex. Cr.R. 570, 330 S.W.2d 466.
“A witness is not qualified as an expert unless there is proof or a stipulation that he is familiar with the subject upon which he is asked to give an opinion. The qualification may come from study, practice, experience or observation of a given subject. The predicate is addressed to sound judicial discretion so as to lead to the conclusion that the witness knows more than an ordinary witness about the field. See Ala.. Digest, Criminal Law Key 478.”

Those rules here apply.

As to whether a particular witness is allowed to testify as an expert is largely a matter for the exercise of the judicial discretion of the trial court, whose decision in that regard will not be reversed upon appeal unless it was palpably wrong. C. Gamble, McElroy’s Alabama Evidence, § 127.01(5) (3d ed. 1977). Under the evidence, Officer Monley possessed such knowledge, skill, and experience that his opinion on the matter would shed light upon the issue of whether the substance was marijuana, and the trial court, in its discretion, properly permitted Monley to give his opinion upon the subject. The weight to be given to that opinion was a matter for the trial court in this nonjury trial and we find no error in that regard.

An adequate positive identification was made by his opinion evidence that the substance was marijuana. The evidence of Monley, if it reasonably satisfied the trial court, was sufficient proof that Tucker used his 1975 Thunderbird to transport a controlled substance for the purpose of the sale by him of that substance. Accordingly, the vehicle was subject to forfeiture under section 20-2-93(a)(5), Code 1975.

II.

It is required that forfeiture proceedings be instituted promptly. Kirkland v. State, ex rel. Baxley, 340 So.2d 1121, 1126 (Ala.Civ.App.1976), cert. denied, 340 So.2d 1127 (Ala.1977); § 20-2-93(c), Code 1975.

Tucker complains that the state’s failure to commence these proceedings for more than six months after the seizure of the automobile violated that statute and unconstitutionally deprived him of his vehicle.

That issue was not raised in the trial court in any manner and is presented as an issue for the first time on this appeal. Unless there is an absence of jurisdiction over the subject matter, appellate courts will not consider constitutional challenges which were not presented to the trial court. Woodham v. Woodham, 387 So.2d 150 (Ala.1980); Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254 (Ala.Civ.App.1974); Rule 12(h)(1) and 12(h)(3), Alabama Rules of Civil Procedure; 2 Ala.Dig., Appeal & Error Key No. 170(2). Due process objections, pleadings, and any evidence which might be offered by the state as to the necessity for a delay or by the defendant as to any damage or prejudice which was caused by the delay should have been presented and evaluated at the trial court level. Such was not done in this case in any manner. Therefore, there was no adverse ruling of the trial court which we can review. Rountree v. Sanders, 413 So.2d 1159 (Ala.Civ.App.1982). Accordingly, we are precluded from a consideration of this issue. Woodham v. Woodham, supra.

The judgment of the trial court is affirmed.

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

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Linda L. WHITE v. Daniel F. WHITE.
    Civ. 3862.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.

      Kenneth W. Quattlebaum of Brogden & Quattlebaum, Ozark, for appellant.
    Robert W. Barr of Gibson & Barr, Troy, for appellee.
   HOLMES, Judge.

This is a child custody case.

The trial court, after an ore terms hearing, modified a prior decree of divorce by awarding custody of the parties’ minor child to the father.

The mother, through able counsel who has favored this court with an excellent brief, appeals and we affirm.

The dispositive issue on appeal is whether the trial court so abused its discretion in awarding custody of the child to the father as to require reversal. As indicated, we find no such abuse of discretion.

We do not deem it necessary to set out in detail the facts. Suffice it to say that viewing the evidence with the attendant presumption of correctness accorded the trial court’s decision, the following is revealed.

We note at this point that while much of the pertinent evidence is not in dispute, the import of such facts could well be “disputed.”

The parties were divorced in 1979. Custody of the parties’ now five-year-old child was awarded to the mother. Shortly after the divorce, the mother began a relationship with a married man. In part because of this relationship, the mother on the ninth day of January 1983, consumed several beers and a bottle of wine. In addition, the mother took an overdose of a drug.

The alcohol consumption and drug overdose was done in the “presence” of the child and while only the child and the mother were present. There is some evidence that the child became upset because of the above occurrence.

The mother, as a result of the above, was admitted to a local hospital and later to a hospital apparently specializing in alcohol and drug abuse, to wit, Charter Woods. While at Charter Woods for a period in excess of two weeks, the mother was treated by a psychiatrist.

The psychiatrist testified that the mother was suffering from reactive depression and that her prognosis was good. Additionally, the doctor testified there was a possibility of another “drug incident,” etc., but that was not likely.

The father has since the divorce remarried. The father’s present wife testified she wanted the child and would treat the child as her own.

The trial court, after the January incident, granted temporary custody to the father. In fact, the mother admitted that temporary custody should be placed with the father, but denied that there was such a change of circumstances to warrant a permanent change of custody.

As indicated earlier, we review judgments of this sort with a presumption of correctness. See Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977), and cases cited therein. Furthermore, in this instance, the award of custody is a matter for the exercise of judicial discretion by the trial judge and this court will reverse only where the trial judge is plainly and palpably wrong. Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977).

As seen from the above, the trial court was confronted with a difficult decision. While the mother appears to be progressing with her “problem,” the fact remains she did take a drug overdose while alone with the child, and further, has some psychiatric problems. See Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977). In addition, there was evidence of involvement with a married man.

In view of the above, for this court to reverse the trial court would be to substitute our judgment for that of the trial court. This the law does not permit. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


author: WRIGHT, Presiding Judge.

text:
    David WATTS d/b/a Watts Insurance Agency v. TALLADEGA FEDERAL SAVINGS AND LOAN ASSOCIATION.
    Civ. 3864.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1984.

      Phillip H. Smith, Talladega, for appellant.
    Margaret L. Fleming of McCrary & King, Talladega, for appellee.
   WRIGHT, Presiding Judge.

Talladega Federal Savings and Loan executed a loan, secured by a mortgage upon real property, to James Dewey and Mary F. Ford. As a condition to granting the loan, Talladega Federal required the Fords to make payments, which it held in escrow, for use in the payment of fire insurance on the property. A policy of fire insurance was issued on November 30, 1977, by Utica Fire Insurance Company through its agent David Watts, d/b/a Watts Insurance Agency. The Fords were the named insured with Talladega Federal as mortgagee. The policy’s term was for twelve months beginning November 30, 1977. It contained a continuous renewal provision.

Talladega Federal paid the annual premiums from the escrow account, upon billing from Watts that they were due, through November 1980. Watts did not bill Tallade-ga Federal for the premium for the year beginning November 1980.

On August 29,1981, the insured property was damaged by fire in the approximate amount of $15,000. The Fords filed a claim for the loss. Utica denied payment due to the unpaid premium. The Fords brought suit against Utica, Watts, and Talladega Federal, alleging breach of contract to provide and maintain insurance on the property. Utica impleaded $9,349.12 and was dismissed from the suit. Talladega Federal settled with the Fords for $6,583.97 and filed a cross claim against Watts claiming damages in the amount of $15,000.

The cross claim alleges generally that defendant Watts breached a duty to Tal-ladega Federal to send to it a notice of premiums due upon the fire insurance policy issued by Watts as general agent for the insurer, Utica Fire Insurance Company. The duty was alleged to arise from either an oral understanding or prior business dealings between Talladega Federal and Watts. It was further alleged that Watts failed to send notice of premium due, which Talladega Federal had relied upon. As a result, Talladega Federal failed to pay the premium when due and became liable to its mortgagors when a fire loss occurred. Because there was an uninsured loss by the insured mortgagors, Talladega Federal paid to them the sum of $6,583.97 in settlement and claimed that amount together with costs and attorney fees from Watts.

Subsequent to oral hearing, the trial court entered judgment in favor of Tallade-ga Federal in the amount of $6,583.97 and costs. The judgment in general terms finds the issues in favor of cross-complainant Talladega Federal.

It is clear from the allegations of the cross-complaint and from the evidence presented to the court, that the theory of the trial was that of breach of contract. Such contract was implied from conversations between Talladega Federal and Watts at the initiation of their business dealings, the subsequent manner of conducting such dealings and the knowledge of each of the customs and practices of their respective businesses. It is well settled that a contract may be implied by law from proof of such facts. Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976).

Watts contends on appeal that there was no evidence to support the judgment in that (a) there is no evidence of a duty owed by him to Talladega Federal nor evidence of a breach of any duty; (b) there is no evidence of injury or damage to Talladega Federal arising from a breach of duty; (c) there is no proof of the amount of damage nor that such alleged damage was within the contemplation of the parties; and (d) if there was a breach of some duty, Talladega Federal was a joint tort feasor and not entitled to contribution as a matter of law.

We will first dispose of the last contention relating to joint tort-feasors. The complaints of both original plaintiff and cross-plaintiff, together with the theory upon which this matter was heard by the court, clearly show that the entire action was founded upon contract not tort. Therefore, the contention of Watts of the presence of contributory negligence and joint tort-feasors has no relation to the case. We therefore proceed to discussion of the other contentions of Watts.

The essence of the issues presented by appellant Watts relates to the factual question of whether there was between Watts and Talladega Federal a relationship from which arose a duty which was breached by Watts to the damage of Talladega Federal.

In considering that issue, it is to be kept in mind that the testimony was heard orally by the trial judge sitting as the trier of fact. In such a case, his judgment must be presumed correct, and may not be disturbed by this court if supported by the evidence and the reasonable inferences to be drawn from it. Mac Pon Co. v. Vinsant Painting and Decorating, 423 So.2d 216 (Ala.1982). There was testimony that in 1974, at its opening for business, the president of Talladega Federal talked with Watts about their operation and the procedures to be used in securing and paying for insurance from loan escrow accounts. The insuring company, or its agent, would send to Talladega Federal, at the end of a policy term, notice of the amount of the renewal premium for the new year and when it was due. Talladega Federal then would draw a check for that amount upon the escrow account and pay it to the insurer through its agent.

The Fords negotiated a loan with Tal-ladega Federal in November 1977. Watts, apparently at the request of the Fords, acting as a general agent for Utica Fire, issued a policy of fire insurance covering certain property of Ford, given as security for the loan, in the amount of $20,000. The first year’s premium was disbursed by the closing attorney upon the delivery of the policy and premium statement. The policy was automatically renewed for the next two years upon payment by Talladega Federal to Watts after receipt of notice of premium due. It is undisputed that this procedure was the custom in such cases.

Prior to the expiration of the policy in 1980, Ford inquired of Watts’ employee if coverage could be increased. The employee told Ford that the insuring company would have to approve additional coverage as $20,000 in coverage was the limit of Watts’ general agency. The employee told the loan officer of Talladega Federal about the conversation with Ford. Watts’ employee later told Ford the additional coverage could not be given. No instruction was given by Ford as to cancellation of the policy or that he was obtaining coverage from another company. Ford had homeowner’s coverage with Watts for his home which was also security for the loan with Talladega Federal.

When the fire policy neared expiration in November 1980, the usual renewal premium notice for it was not sent by Watts to Talladega Federal. The renewal premium notice for the homeowner’s policy was sent and was paid for the policy year November 1980 to November 1981 from the Fords’ escrow account. The uninsured property burned in August 1981.

With the cross-complaint and the stated evidence before it, the court entered its judgment. Though the judgment contained no finding of fact, it will be assumed that the trial court found the facts sufficient to support its judgment. Thomas v. Davis, 410 So.2d 889, 891 (Ala.1982). Whether the business relationship and previous practice or custom of doing business between Talladega Federal and Watts Insurance Agency effected an implied contract, placing upon Watts the duty of notifying Talladega Federal that premium was due upon the Fords’ fire policy, presented a question of fact for the trial court. Clayton v. Simpson, 346 So.2d 457 (Ala.Civ.App.1977). It is the opinion of this court that such finding is sufficiently supported by the evidence.

Having found the duty, the question of a breach and damage flowing therefrom was a further determination for the trial court. The failure of sending a premium due notice by Watts to Talladega Federal was undisputed. He did not send it as in previous years and as was the custom. He contended that written notice was excused because telephonic notice was given that Ford wanted additional coverage which he could not write. The trial court apparently found that such notice did not excuse a breach. We will not hold such finding erroneous.

We have arrived at the issue of whether the breach of the contract caused Tallade-ga Federal injury and whether the evidence furnished sufficient measure for damage for such injury.

It was without dispute that Watts knew of the escrow agreement for payment of insurance premiums between Talladega Federal and the Fords. It was admitted by Watts that he looked to Talladega Federal for payment, though Ford had ordered the insurance. Watts knew, or should have known, that Ford relied upon Talladega Federal to use his escrow funds to keep his property insured. If Talladega Federal did not use such funds to keep the property insured, there was clearly injury to it and Ford in the event of fire loss. Clearly the court was at liberty to find that loss to be within the contemplation of the parties. It is further evident that if Watts failed in its duty to Talladega Federal, it could cause Talladega Federal to become liable to the Fords if loss occurred. The damage suffered by Ford from an uninsured fire loss due to nonpayment of premium would be due from Talladega Federal. Talladega Federal would pass on that liability to Watts because of Watts’ breach of his duty to it.

Watts presents the contention that the amount of the settlement between Tallade-ga Federal and the Fords was not a legal measure of the damage of Talladega Federal. The basis of the contention is that the amount shown as paid by Talladega Federal resulted from a settlement between the original plaintiffs and defendant, rather than a trial to judgment upon the liability of Talladega Federal. Therefore in order to recover from Watts as an indemnitor, Talladega Federal had the burden of establishing that it was actually liable to the Fords and that the settlement of its liability was a reasonable one.

The contention of Watts appears to be the general rule if indemnity is sought against an indemnitor without notice of either the original suit or of the settlement by the indemnitee. Moses-Ecco Company v. Roscoe-Ajax Corporation, 320 F.2d 685 (D.C.Cir.1963). However, if the indemnitor is notified of the action against the indem-nitee, particularly if a party therein, and can exercise his right to present indemni-tee’s defenses under Rule 14, A.R.Civ.P., he is precluded from contesting the indem-nitee’s liability in a subsequent indemnity or third-party action. “Notice and an opportunity to defend are the indispensable due process satisfying elements.” Jennings v. United States, 374 F.2d 983 (4th Cir.1967). Jennings stands for the proposition that lack of notice, either of original suit or a settlement with opportunity to participate by indemnitor, vitiates the binding effect of the judgment or settlement and entitles the indemnitor to be heard on the issue of indemnitee’s liability and the reasonableness of a settlement. This court has stated these principles before in the case of Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975), albeit in a different factual context.

The facts of this case, when examined in light of these stated principles, indicate as follows: Watts was not only a cross-defendant of Talladega Federal, he was also an original defendant of the suit brought by the Fords. He was informed of and served with copies of all the proceedings, including the settlement by Utica Fire and Talladega Federal with plaintiff. The record fails to indicate any effort to object thereto or participate therein. He was present at the time of the pre-trial hearing of the third-party action where it was stipulated that the settlements had been made. The pre-trial order states that, “all other parties and issues but the third-party complaint have been eliminated except the cross-claimant and cross-respondent.” Watts filed no pleadings after service of the amended cross-claim. It clearly appears that he had ample notice and opportunity to participate in or object to the settlement.

Jennings says, “The indemnitor’s knowing failure to participate is deemed a consent to representation by the indemnitee, thus forming the predicate for application of the rule that a litigant is entitled only once to his day in court.” Jennings, supra at 986.

It is further to be noted that the relationship of plaintiffs with Talladega Federal and their escrow agreement was testified about and stipulated to in the trial between Talladega Federal and Watts. The liability of Talladega Federal to the Fords was amply supported and was an issue of fact for the court. There does not appear in the record any effort by Watts to challenge the reasonableness or imprudence of the settlement. The opinion in Moses-Ecco Company, supra, indicates that only if there is a challenge of a settlement as imprudent, must the indemnitee justify it as prudent. Moses-Ecco Company, supra at 689.

In summary, Watts had notice of the original suit and all of its proceedings, including the opportunity to object or participate. He had his day in court. In addition to notice of suit and settlement, the court heard evidence sufficient to have determined the liability of Talladega Federal to the Fords and the liability of Watts over to Talladega Federal. There being no challenge to the stipulated amount of the settlement, the court is assumed to have found it to be reasonable and the proper measure of damage. Thomas v. Davis, supra.

Finding no error, the judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EHRLICH, Justice. EHRLICH, Justice.

text:
    STATE of Florida, Petitioner, v. Robert E. STRASSER, Respondent.
    No. 62665.
    Supreme Court of Florida.
    Oct. 13, 1983.
    On Rehearing Feb. 9, 1984.
    Jim Smith, Atty. Gen., and Max Rud-mann, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Richard B. Greene, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   EHRLICH, Justice.

This cause is before us because the decision of the district court, Strasser v. State, 420 So.2d 611 (Fla. 4th DCA 1982), directly and expressly conflicts with the decision of the Second District Court of Appeal on the same issue, Burney v. State, 402 So.2d 38 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve the holding in Burney and therefore quash the holding of Strasser.

Strasser was charged with and convicted of robbery in January of 1981 on evidence which supported a conviction of the completed act. The trial judge instructed on robbery, grand theft, and petty theft, but he refused to instruct on attempted robbery. It is not disputed that this refusal was reversible error at that time. In October, 1981, however, new rules of criminal procedure went into effect, In re Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981), which permit the trial court to refuse to instruct on attempt on evidence analogous to that presented in Strasser’s case. It is not disputed that these rules would control any new trial Strasser could be granted, thus he would not be entitled to the requested instruction on retrial.

On virtually identical facts, in Burney, the Second District refused to remand for new trial, noting, “We are not required to do a useless act nor are we required to act if it is impossible for us to grant effectual relief.” 402 So.2d at 39. We agree. Strasser would gain nothing from a new trial. The only effect would be to .increase the pressures on the already overburdened judicial system and, ultimately, on the taxpayer. We will not ignore the substance of justice in a blind adherence to its forms.

Accordingly, the holding of the Second District in Burney is approved and that of the Fourth District in Strasser is quashed.

It is so ordered.

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

McDONALD, J., dissents.

ON PETITION FOR REHEARING

EHRLICH, Justice.

Respondent, in its petition for rehearing, points out that we failed to address the second issue raised in its brief, an issue which assumes greater significance in light of our disposition of the first issue.

Respondent points out that at trial the prosecutor elicited from a state witness evidence that Strasser had exercised his right to remain silent. The defense preserved the issue for appeal by timely objection and raised it before the district court. The district court reversed and remanded for new trial on the jury-instruction issue we addressed in our original opinion, and never addressed the issue on which we now focus.

We note that, in the absence of a decision from the district court, procedural formality would suggest that we should remand to the district court for entry of a decision on the issue. However, in light of this Court’s decision in State v. Burwick, 442 So.2d 944 (Fla.1983), such procedural nicety would merely delay the judicial process without benefiting anyone. We therefore remand for new trial on the basis of Burwick.

For the record, we note that we have considered respondent’s ■ third point and find it to be without merit.

Thus, the decision of the district court is approved in result only and the cause is remanded for new trial.

It is so ordered.

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

ALDERMAN, C.J., dissents.


author: ADKINS, Justice.

text:
    Jimmy Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 63389.
    Supreme Court of Florida.
    Nov. 10, 1983.
    Rehearing Denied March 8, 1984.
    Certiorari Denied May 29, 1984.
    See 104 S.Ct. 2671.

      Nora Leto, Lakeland, Robert Augustus Harper, Jr., Tallahassee, and Dennis W. Hartley, Colorado Springs, Colo., for appellant.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

In 1978, appellant was convicted of two counts of first-degree murder and sentenced to death on each count. Upon direct appeal, this Court affirmed these convictions and sentences. Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). After executive clemency proceedings the governor signed a death warrant. On March 2, 1983, appellant filed a motion to vacate the judgments and sentences pursuant to Florida Rule of Criminal Procedure 3.850 stating six grounds for relief and also sought an evidentiary hearing and a stay of execution. Prior to the hearing on these motions, appellant filed an amendment to his motion for post-conviction relief on three additional grounds. On March 9, 1983, the trial court denied appellant’s motions for post-conviction relief without an evidentiary hearing incorporating a copy of the trial record to his order. The appellant filed this appeal. We have jurisdiction. Art. V, § 3(b)(7) & (9), Fla. Const.

Appellant alleged the following six grounds for relief in his original Rule 3.850 motion: 1) that the introduction into evidence of defendant’s confession violated his right to counsel as guaranteed by the sixth and fourteenth amendments; 2) that the jury was improperly instructed on the issue of mitigating circumstances in violation of the defendant’s rights under the eighth and fourteenth amendments; 3) that the jury was selected through procedures that systematically excluded from jury service persons having opposition to the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); 4) that defendant was deprived of due process by the state’s failure to provide notice of the aggravating circumstances upon which it intended to rely in violation of the eighth and fourteenth amendments; 5) that the failure to suppress defendant’s post-arrest confession which was obtained after the defendant had invoked his right to consult counsel was in violation of the fifth, sixth and fourteenth amendments; and 6) that the defendant was denied the effective assistance of counsel at the guilt and penalty stages of his capital trial in violation of the sixth, eighth and fourteenth amendments. In addition to these grounds, the appellant alleged three other grounds in his amendment to his motion. Those grounds are: 1) that the sentencing process ignored the safeguards of Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); 2) that the sentence should be vacated because non-statutory aggravating circumstances were found by the trial court in violation of the defendant’s rights under the eighth and fourteenth amendments; and 3) that the state withheld mitigating facts from the defense in violation of defendant’s rights under the fifth and fourteenth amendments.

Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack. Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla.1980), cert. denied, — U.S. -, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983); Adams v. State, 380 So.2d 423, 242 (Fla.1980).

We find that all except two of the foregoing issues were or could have been raised on direct appeal and therefore are precluded from our consideration by collateral review. The two issues which we will consider on this appeal are appellant’s claim of ineffective assistance of counsel and the claim that the state withheld mitigating facts from the defense.

In support of appellant’s ground based on the alleged ineffective assistance of trial counsel, he cites a number of specific instances in which counsel’s failure to act allegedly amounted to ineffective assistance of counsel. Appellant asserts that counsel failed to make a motion to suppress any of the confessions introduced against the appellant. He also claims: 1) that counsel failed to cross-examine crucial witnesses and that the cross-examination of others was perfunctory; 2) that counsel’s voir dire examination at appellant’s trial was ineffective; 3) that counsel failed to investigate any information for the guilt or penalty phases of the trial; 4) that counsel failed to file any motions designed to aid in the defense of the appellant; and 5) that counsel failed to avail himself of significant facts and witnesses that may have been effective in presenting claims for mitigation including developing any psychological testimony with regard to possible witnesses.

When ineffective assistance of counsel is asserted, the burden is on the appellant to specifically allege and establish grounds for relief and to establish whether such grounds resulted in prejudice to him. Meeks v. State. This Court set standards for assessing whether the performance of counsel in a given situation amounts to legal incompetency in Knight v. State, 394 So.2d 997, 1001 (Fla.1981). We adopted the following four principles to make this determination. First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading. Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. In making this second determination, the performance of counsel must be judged in light of the totality of the circumstances. Meeks v. State. Third, the defendant has the burden to show that this deficiency, when considered under the circumstances of his case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. Fourth, in the event a defendant does show a substantial deficiency and presents a pri-ma facie showing of prejudice, the state still has the opportunity to rebut those assertions by showing beyond a reasonable doubt that there was no prejudice in fact.

Appellant has failed to allege specific facts to demonstrate that, but for any of the claimed omissions of trial counsel, the results of appellant’s case would have been different. Nothing has been shown to this Court concerning what evidence would have been discovered had counsel not failed to do the specific acts which appellant claims constitute ineffective assistance of counsel. Appellant has failed the requirement under Knight of showing that any of these deficiencies were substantial enough to demonstrate a prejudice to him.

In support of appellant’s claim that the state withheld mitigating facts from the defense in this case in violation of his rights under the fifth and fourteenth amendments, appellant alleges that the prosecution withheld statements made by his mother which would have lent credibility to his statements which were made on video tape and would have added evidence in mitigation. Appellant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as the legal basis for his argument.

The state argues, first of all, that this issue should' not be considered by this Court because it was contained in an un-sworn motion contrary to the requirements of the Florida Rules of Criminal Procedure. See Fla.R.Crim.P. 3.850. The trial court refused to consider this issue on this basis and we agree that the trial court was procedurally precluded from giving this issue consideration. Moreover, even if appellant’s Brady claim had been preserved and even if we were to consider the merits of this claim, we would have to hold that it is insufficient as a matter of law. Brady requires that the defendant not be aware of the withheld evidence before or during trial. Arango v. State, 437 So.2d 1099 (Fla.1983). The information contained in the affidavit was obviously available to the appellant and to trial counsel insofar as it involves appellant’s own life story.

Therefore, we must conclude that the appellant has failed to show any basis upon which we should grant him an evidentiary hearing. We affirm the order of the trial court.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


author: BOYD, Judge.

text:
    James AGAN, Appellant, v. STATE of Florida, Appellee.
    No. 60476.
    Supreme Court of Florida.
    Dec. 15, 1983.
    Rehearing Denied March 8, 1984.

      P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   BOYD, Judge.

This cause is before the Court on appeal of a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant was indicted for and pled guilty to the murder of Dana Dewitt. The murder took place on September 19, 1980, in the Florida State Prison where both appellant and the victim were inmates. On the day of the murder, appellant went to prison authorities and confessed to killing his fellow prisoner. Against the advice of court-appointed counsel, appellant testified before the grand jury that examined the evidence in the case. After being formally accused of the crime by indictment, appellant entered a plea of guilty to the charge of first-degree murder. In proceedings held to determine the voluntariness of the plea and the factual basis for it, appellant again testified in detail about the crime. At this hearing on appellant’s guilty plea, the court extensively questioned him about his understanding of his constitutional rights, his knowledge of the consequences of pleading guilty, and the voluntariness of his plea. Appellant insisted upon waiving his right to a trial.

Appellant’s grand jury and trial court testimony established the following facts. Appellant was a prisoner serving a life sentence without eligibility for parole for twenty-five years, having been convicted of first-degree murder. In prison, appellant was the victim of a robbery perpetrated by Dana Dewitt and another prisoner. Some time afterward, appellant and Dewitt had a fight. Appellant was disciplined for possession of a weapon and was placed in special restrictive confinement for two years. Appellant testified that during his disciplinary confinement he thought a great deal about getting revenge against Dewitt by murdering him.

After appellant’s disciplinary confinement was over and he was returned to the general prison population, appellant was assigned to a job in a prison factory. There he fashioned a piece of metal into a knife using prison factory machinery. He chose a day and a time when he knew that no guards and few prisoners would be in the vicinity of Dewitt’s cell. He went there and fatally stabbed Dewitt in the neck.

Appellant told the grand jury that he had confessed to the crime and would plead guilty in hopes of receiving a life sentence so that he could return to prison and murder the other prisoner who had robbed him years earlier. Subsequently, he reiterated before the court that in pleading guilty he hoped to get a life sentence so that he could return to prison and kill again.

In further support of a factual basis for the plea, the state submitted a transcript of the grand jury proceeding and the result of the autopsy showing that Dewitt died from a stab wound in his neck.

After accepting the plea of guilty, the court proceeded to the sentencing phase of the trial. Appellant waived the right to have a jury hear the evidence and submit an advisory sentencing verdict. The state presented evidence showing that at the time of the murder, appellant was serving a sentence for another first-degree murder. Appellant declined to present any evidence in mitigation. After hearing arguments from both sides, the trial judge found that the murder was committed in a cold and calculating manner and that appellant was serving a term of imprisonment for murder at the time and sentenced appellant to death. In his written findings in support of the death penalty, however, the judge failed to mention the aggravating circumstance of the murder being committed in a cold and calculated manner. Instead he wrote:

The question of penalty was addressed. The Court finds the following aggravating factors apply in this case:
1. The Defendant was under sentence of imprisonment—for murder—when this crime was committed.
2. The Defendant had previously been convicted of First Degree Murder and Robbery.
There are no other applicable statutory aggravating factors.
There are no applicable statutory mitigating factors. The record shows this was a merciless revenge killing; planned over a period of two years; coldly executed and cruel. The Defendant shows no remorse but seeks rather a chance to kill again.

In this appeal Agan raises four issues concerning the propriety of the death sentence. His first argument is that the trial court improperly found as two separate aggravating circumstances that he was under sentence of imprisonment and that he had previously been convicted of a crime involving violence. However, where these two aggravating factors are not based on the same essential feature of the crime or of the offender’s character, they can be given separate consideration. Waterhouse v. State, 429 So.2d 301 (Fla.1983).

Appellant’s second argument is that the trial court improperly considered lack of remorse as an aggravating circumstance. This Court recently held that lack of remorse may not be considered as an aggravating circumstance or in enhancement of a proper statutory aggravating circumstance. Pope v. State, 441 So.2d 1073 (Fla.1983). However, as the above-quoted findings indicate, the trial court mentioned lack of remorse not in connection with aggravating factors but rather in connection with the finding that there were no mitigating circumstances. The judge referred to the absence of remorse in support of his rejection of defense counsel’s arguments for mitigation on the ground of mental or emotional disturbance and on the ground of appellant’s prompt confession and plea of guilty. Thus the evidence was used not in aggravation but only to negate mitigation. There was no error in this limited consideration of the absence of remorse for his crime on the part of appellant.

Next appellant argues that the trial court erred in not considering his age, 54, as a mitigating circumstance. This mitigating circumstance usually applies to those youthful in age because of society’s responsibility for overseeing the welfare of the young. Since society also has the responsibility of protecting those suffering from the infirmities of aging, see In re Byrne, 402 So.2d 383 (Fla.1981), appeal dismissed, 455 U.S. 1009, 102 S.Ct. 1699, 72 L.Ed.2d 127 (1982), this mitigating circumstance may also be applied to older persons. However, we do not find that at the time of the crime appellant had reached an age requiring special consideration. We therefore find no error in not finding his age to be a mitigating circumstance.

Finally, appellant argues that the trial court erred by failing to consider any non-statutory mitigating circumstances. Appellant claims that his willingness to cooperate by confessing, appearing before the grand jury, and pleading guilty should have been considered as a mitigating circumstance. See Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979). As was stated above, however, it is apparent that the trial judge did consider and reject this willingness to cooperate as a mitigating circumstance by finding that Agan was not remorseful, but was rather seeking a chance to kill again. No evidence was offered or arguments made as to the applicability of any other non-statutory mitigating factors. Thus we conclude that the trial court did consider all the non-statutory mitigating factors there were to be considered.

Having found no errors, we affirm the conviction of first-degree murder and the sentence of death.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OV-ERTON, McDonald and EHRLICH, JJ., concur.


author: SHAW, Justice. ALDERMAN, Chief Justice,

text:
    RADIATION TECHNOLOGY, INC., and Employers Mutual Liability Insurance Company of Wisconsin, Wausau, Wisconsin, Petitioners, v. WARE CONSTRUCTION COMPANY and Insurance Company of North America, Respondents.
    No. 62895.
    Supreme Court of Florida.
    Dec. 22, 1983.
    Rehearing Denied March 9, 1984.

      Raymond T. Elligett, Jr., Charles P. Schropp and F. Ronald Fraley of Shackle-ford, Farrior, Stallings & Evans, Tampa, for petitioners.
    H. Vance Smith of Macfarlane, Ferguson, Allison & Kelly, Tampa, for respondents.
   SHAW, Justice.

This case is before us on discretionary review of a question certified to be of great public importance. Radiation Technology, Inc. v. Ware Construction Co., 419 So.2d 1207 (Fla. 2d DCA 1982). We accept jurisdiction despite the curious fashion in which this case was certified to the Court and will answer what we perceive to be the intended question of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

Ware Construction Company built a cold storage warehouse for Adamo Cold Storage, Inc. After Adamo took possession and stored frozen foodstuffs in the warehouse, it became necessary for Ware to make certain repairs to the concrete floor. Since the temperature in the warehouse had to be maintained to preserve the foodstuffs, and the concrete would not set properly at the temperature, Ware purchased a quantity of J-27 from Radiation Technology, Inc. for use as a hardening agent. A portion of the concrete floor did not harden and fumes from the J-27 contaminated the foodstuffs in the warehouse, making them unpalatable but not toxic or inedible.

Adamo brought suit for damages, naming both Ware and Radiation as defendants. Ware entered into a settlement agreement with Adamo and filed a third-party complaint against Radiation, alleging that it was entitled to indemnity for the amount it was required to pay Adamo. Radiation filed an answer and counterclaim against Ware for payment of the purchase price of the J-27. Its defense against the third-party complaint was predicated in part upon the following clause contained in a document received by Ware from Radiation prior to purchase of the J-27:

Warranty
The only obligation of [Radiation] and its distributor shall be to replace any of this product proved to be defective. Before using test this product to determine its suitability for the intended use. User assumes all risk and liability while testing and using this product. Neither [Radiation] nor its distributor shall be liable for any injury, loss or damage, direct or consequential, relating to the use or inability to use this product. While the technical information on this sheet is believed to be reliable, [Radiation] does not guarantee its accuracy or completeness.

Over objection, the jury was instructed to disregard the limitation of liability provision and the cause was submitted to the jury on the issue of whether Radiation was negligent with regard to the adequacy of warning and instructions on the use of the 3-21. The jury returned a verdict for Ware and Radiation appealed.

The district court initially entered a decision reversing the trial court based upon its conclusion that the J-27 was not inherently dangerous, in that it did not threaten bodily injury; therefore, the court reasoned, there was no duty to warn of its potential adverse affect on property, and the clause seeking to limit liability should have been enforced as permitted by section 672.719, Florida Statutes (1979). On motion for rehearing the district court granted the motion, receded from its conclusion that an inherently dangerous product must threaten bodily injury, withdrew its initial opinion, and substituted a per curiam affirmance. The case was then certified to us as passing upon a question of great public importance.

The district court did not articulate the question it deems to be of great public importance but we take it to be:

UNDER FLORIDA LAW, IS AN “INHERENTLY DANGEROUS” PRODUCT OR INSTRUMENTALITY LIMITED TO ONE WHICH POTENTIALLY THREATENS BODILY INJURY?

We answer the question in the negative. We have found no Florida cases limiting inherently dangerous products to those potentially threatening bodily injury nor are we aware of any reason why a product posing potential danger to property could not be found to be inherently dangerous. The phrase “inherently dangerous” is merely a descriptive, factual conclusion, largely of historical interest, which has lost most of its utility with the evolution of products liability law and the adoption of strict liability. Prosser, Law of Torts § 96 (4th ed. 1971). In Florida, the phrase was never clearly defined but was used analytically on a product-by-product basis either to circumvent the absence of privity in implied warranty cases, Toombs v. Ft. Pierce Gas Co., 208 So.2d 615 (Fla.1968); Matthews v. Lawnlite Co., 88 So.2d 299 (Fla.1956), or to demonstrate that adequate warnings or directions were not given for a particularly dangerous product. Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958). The former cases involved a matter of law, the latter a matter of fact.

With the adoption of strict liability in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), the phrase became largely passé except as a rhetorical device to persuade a jury that a product contained a defect or inherent characteristic which posed a danger to users or bystanders. Under strict liability, the Restatement (Second) of Torts, section 402A (1965) refers to products which are “unreasonably dangerous to the user or consumer or to his property” regardless of privity. The term “unreasonably dangerous” more accurately depicts liability of a manufacturer or supplier in that it balances the likelihood and gravity of potential injury against the utility of the product, the availability of other, safer products to meet the same need, the obviousness of the danger, public knowledge and expectation of the danger, the adequacy of instructions and warnings on safe use, and the ability to eliminate or minimize the danger without seriously impairing the product or making it unduly expensive. Thus, an unsafe product, whether it be characterized as inherently dangerous or unavoidably dangerous, would not necessarily be an unreasonably dangerous product. See Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979); Prosser, § 99.

Turning to the case at hand, the dispute over the application of “inherently dangerous” is a non-sequitur. The legal issue is whether the trial court erred in instructing the jury to disregard the warranty/limitations of liability clause quoted above and in failing to give effect to the limitations of remedy provision. The case went to the jury on a negligence theory; there was privity in contract between the parties; and there was no count in strict liability. Under these circumstances, the defendant was entitled to present to the jury the warranty clause tending to show that the plaintiff had been warned to test the product for the specific use. The adequacy of that warning was for the jury to determine. Further, since the count was in negligence and it is undisputed that the potential harm was to property only and hot to the person, the limitations of remedy provision was not prima facie unconscionable and should have been given effect absent a showing of unconscionability. § 672.719(3), Fla.Stat. (1979). The facts here show that the parties were two commercial entities with no suggestion of an imbalance of bargaining power between them rendering the limitations clause unconscionable and unenforceable. Under the circumstances, the trial court erred in failing to allow the jury to consider the limitations óf remedy provision.

We quash the district court opinion and remand for proceedings consistent with this opinion.

It is so ordered.

ADKINS, OVERTON and McDONALD, JJ., concur.

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

ALDERMAN, Chief Justice,

dissenting.

The district court of appeal initially wrote an opinion that reversed the trial court and remanded with directions to enter final judgment in favor of appellants on appellee’s third-party complaint, but against appellants on their counterclaim. On motion for rehearing, the district court withdrew its original opinion and substituted a “per curiam affirmed” without any written opinion. The only record of this decision in Southern Reporter appears in the list of Florida decisions without published opinion. Radiation Technology, Inc. v. Ware Construction Co., 419 So.2d 1207 (Fla. 2d DCA 1982). On a second motion for rehearing, the district court denied rehearing and then certified this case to the Supreme Court as passing upon a question of great public importance. The district court, however, has not delineated what this question of great public importance is. Even if we were able to determine the content of the question, we would not be able to conclude from the district court’s “PCA” whether it passed on this question.

This ease presents an excellent example of why this Court should exercise its discretion and not accept jurisdiction of a decision certified by the district court as passing on a question of great public importance where the decision of the district court is merely a per curiam affirmance without opinion. The district court here has certified its decision to us but has failed to articulate the question which it feels is of such public importance.

I believe it would be a much better practice, and of great assistance to this Court in reviewing a case, if the district courts, in all cases which they deem to pass on questions of great public importance, would write opinions which pass on the questions certified and state in clear and concise language the issue or issues which they certify to be of great public importance. For the most part, the district courts have been following this practice.

If the present case passes upon a question of great public importance, it is a mystery to me why the district court did not publish an opinion of precedential value on the issue rather than merely rendering a per curiam affirmance without opinion. A per curiam affirmance without opinion has no precedential value. Department of Legal Affairs v. District Court of Appeal, Fifth District, 434 So.2d 310 (Fla.1983).

The problem of our reviewing this type of case is particularly evident in the present case. The majority attempts to frame a question of great public importance, decides the question, then decides that the question it has answered is not really material to the resolution of the case, and decides the case on what it finds to be the legal issue involved.

I would deny review of this cause.

BOYD and EHRLICH,.JJ., concur.

       We express no opinion on whether the limitations of remedy provision would have been enforceable had the count been in strict liability.

       Article V, section 3(b)(4), Florida Constitution, expressly provides that this Court "[m]ay review any decision of a district court of appeal that passes upon a question certified by it to be of great public importance_”


author: BOYD, Justice.

text:
    D.C.W., a juvenile, Petitioner, v. STATE of Florida, Respondent.
    No. 62633.
    Supreme Court of Florida.
    Feb. 2, 1984.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal in State v. D.C.W., 426 So.2d 970 (Fla. 4th DCA 1982). The district court’s decision is in conflict with the decision in State v. J.M.Z., 408 So.2d 1063 (Fla. 1st DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner was taken into custody on February 3, 1981. The state attorney apparently believed there were grounds to treat petitioner as an adult and proceed against him in the criminal division of the circuit court. See § 39.02(5)(c), Fla.Stat. (Supp. 1980). Therefore, initially no petition for adjudication of delinquency was filed. On March 18, 1981, forty-three days after petitioner was taken into custody, the grand jury returned an indictment charging petitioner with the offense of burglary and alleging that in the course of the burglary the defendant’s accomplice “was armed or armed himself within such structure with ... a dangerous weapon, to-wit: a knife.” Thus the theory upon which the state chose to treat petitioner as an adult by seeking a grand jury indictment was that he was allegedly an aider and abettor of armed burglary, an offense punishable by life imprisonment. § 810.02(2)(b), Fla.Stat. (1979); see Ringel v. State, 352 So.2d 88 (Fla. 4th DCA 1977), approved, 366 So.2d 758 (Fla.1978). Although the March 18 indictment was later abandoned, a new indictment containing the sanie charge was returned on May 6, 1981.

Petitioner then moved to dismiss that portion of the indictment which alleged in effect that his offense of burglary was committed while armed. The court granted the motion on July 7, thereby reducing the alleged offense to simple burglary. Since the indictment no longer charged a crime punishable by life imprisonment, petitioner moved to transfer the case to the juvenile division. The court granted the motion for transfer on August 4,1981. On the following day the state filed a petition for adjudication of delinquency. Petitioner moved to dismiss on the ground that the delinquency petition was not filed within forty-five days of the day he was taken into custody as required by section 39.05(6), Florida Statutes (Supp.1980). On September 1, 1981, the court granted the motion to dismiss with prejudice.

The state appealed and the district court of appeal reversed, holding that the 45-day period should not have begun to run until the entry of the order transferring jurisdiction to the juvenile court. In a footnote, the district court made reference to the “intriguing question” of whether an appeal was available to the state. Because the appellee did not raise the question, however, the district court did not decide it, stating that it would have provided review in any case by certiorari. Petitioner now raises before this Court the question of whether the state was entitled to appeal the juvenile court’s order of dismissal. However, since petitioner failed to raise this question in the district court in response to the state’s appeal, we deem the issue abandoned and any legal defect waived. Accordingly, we will confine our treatment to the issue upon which our conflict-review jurisdiction is predicated.

Section 39.05(6) provides:

On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the child was taken into custody. The court may grant an extension of time, not to exceed an additional 15 days, upon such motion by the state attorney when, in the opinion of the court, such additional time is justified because of exceptional circumstances.

This paragraph confers a substantive right. See, e.g., L.H. v. State, 408 So.2d 1039 (Fla.1982). The provision calling for dismissal if the rule is not strictly followed is mandatory. S.R. v. State, 346 So.2d 1018 (Fla.1977).

The district court held that the 45-day period should not be considered activated on a juvenile being prosecuted as an adult until the entry of the order transferring jurisdiction from the criminal to the juvenile court. The district court reasoned as follows:

The state legislature has seen fit to adopt a statute which permits juveniles to be tried as adults for more serious crimes. If in fact such serious charges are filed in good faith (and there is no suggestion otherwise in this case), it is inconceivable that the legislature envisaged the erring minor could get off scot-free if the charges later have to be reduced. He or she who is initially legally charged as an adult should not be simultaneously able to keep the meter running as a juvenile....
In this case the criminal should be able to claim the protections afforded juveniles under the “speedy file” rule commencing at such time as that criminal is entitled to, or elects to, be treated as such. This particular child was clearly not entitled to all the protections afforded those of tender age prior to the order granting transfer to the juvenile division. Accordingly, we hold that in an instance such as this, the 45 day limitation is not activated until the accused ceases to be prosecuted as an adult and is transferred to the more charitable juvenile division.

426 So.2d at 970-71. The district court also acknowledged that a literal interpretation of section 39.05(6) would support the different conclusion reached in State v. J.M.Z., 408 So.2d 1063 (Fla. 1st DCA 1982) and T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978). But the court appealed to the rule of “common sense” in refusing to allow a juvenile to subvert technical rules of procedure to avoid prosecution. We agree and approve the result of the district courts decision, but we arrive there by a different route.

Petitioner relies on those cases holding that dismissal for violation of the time requirement in section 39.05(6) is a substantive and mandatory requirement. See, e.g., L.H. v. State, 408 So.2d 1039 (Fla.1982); S.R. v. State, 346 So.2d 1018 (Fla.1977); R.L.H. v. State, 417 So.2d 1105 (Fla. 4th DCA 1982); State v. R.J., 415 So.2d 873 (Fla. 2d DCA 1982); State v. D.B.C., 413 So.2d 455 (Fla. 5th DCA), rev. dismissed, 419 So.2d 1196 (Fla.1982); S.M. v. State, 398 So.2d 496 (Fla. 3d DCA), rev. denied, 407 So.2d 1106 (Fla.1981); T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978). Petitioner argues that the time begins to run at the time of arrest regardless of an initial or intervening period during which the accused is prosecuted as an adult, citing Parr v. State, 415 So.2d 1353 (Fla. 4th DCA), rev. denied, 424 So.2d 763 (Fla.1982); J.M.Z. v. State, 408 So.2d 1063 (Fla. 1st DCA 1982); and G.A. v. State, 391 So.2d 720 (Fla. 1st DCA 1980), quashed on other grounds, 417 So.2d 980 (Fla.1982). Finally, petitioner asserts that only a valid and proper juvenile delinquency petition will supply the required filing and stop the running of the time period provided in section 39.05(6). He relies on In the Interest of S.E.B., 365 So.2d 451 (Fla. 1st DCA 1978), where the filing of an indictment was held not to toll the running of the time period because there were not grounds, under the juvenile justice statute, for proceeding against the accused juvenile by indictment; and the decisions in J.H. v. State, 424 So.2d 928 (Fla. 1st DCA 1983), and T.R. v. State, 364 So.2d 100 (Fla. 1st DCA 1978), where even the filing of delinquency petitions were held not to toll the time because the petitions were fatally defective.

Petitioner argues that the district court erred in finding dismissal incompatible with common sense. Petitioner says that dismissal in this case serves a clearly expressed legislative policy. He argues that the purpose of the 45-day time limit in section 39.05(6) is different from the purpose of a speedy trial rule in either a criminal or juvenile context so that analogies should not be made. The compressed time requirements applicable to juvenile proceedings (which, petitioner says, are due to a most salient characteristic of the accused — youth) together with the existence of prosecutorial options in many cases, demonstrates the need for a legislative policy favoring prompt election by the state and notice to the accused. Upon the filing of a juvenile delinquency petition, D.C.W. argues, a juvenile knows he is being treated as a juvenile and can plan accordingly. Subsequent extensions of his right to a speedy adjudication do not detrimentally affect this essential beneficial certainty. However, delay in the initial juvenile filing, the argument continues, causes the accused not to know how the state plans to treat him. Where, as here, the delay is attributed to the state’s unsuccessful attempt to prosecute the juvenile as an adult, the legislative policy of a prompt, proper juvenile disposition of the case is thwarted.

The state responds that the section 39.05 time limit does not apply when a juvenile is charged as an adult. The legislative intent is clear, the state says, that the time limits in the juvenile justice statutes apply only to cases proceeding wholly within the juvenile court system. A juvenile being prosecuted as an adult, the state argues, should not be able to look to the comforting assurances of juvenile procedures, including the 45-day filing requirement. The state relies on Parr v. State, 415 So.2d 1353 (Fla. 4th DCA), rev. denied, 424 So.2d 763 (Fla.1982) and State v. Puckett, 384 So.2d 660 (Fla. 2d DCA 1980).

The state also relies on I.H. v. State, 405 So.2d 450 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 466 (Fla.1982), where it was held that for purposes of the juvenile filing time limit, an information setting forth adult charges effectively served as a delinquency petition. The state argues that a juvenile delinquency petition may simply be substituted for a previously filed adult criminal charging instrument without affecting the timeliness of the filing.

The juvenile jurisdiction of the circuit court attaches at the moment a juvenile is taken into custody. § 39.06(7), Fla. Stat. (1979); see Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), approved, 403 So.2d 1337 (Fla.1981) (juvenile initially charged as adult is considered “transferred” from juvenile to criminal jurisdiction). We therefore disapprove the district court’s reasoning that the 45-day period begins to run when a juvenile charged as an adult is transferred to the juvenile division. The 45-day period begins to run when the juvenile is taken into custody. We also reject the state’s argument that juvenile time requirements are wholly inapplicable when the juvenile is or has been treated as an adult. We find merit, however, in the state’s argument, based on I.H. v. State, that an indictment or information charging the accused as an adult may serve as the initial delinquency petition for purposes of the 45-day filing requirement.

If no delinquency petition (or adult criminal charging document) is filed within forty-five days of when the juvenile is taken into custody, then the juvenile has a right to have a later-filed delinquency petition dismissed. The expiration of the forty-five days does not, however, bar the state from charging the juvenile as an adult if such adult treatment is appropriate. See Parr v. State, 415 So.2d 1353 (Fla. 4th DCA), rev. denied, 424 So.2d 763 (Fla.1982); State v. Puckett, 384 So.2d 660 (Fla. 2d DCA 1980). Therefore, we conclude that when an indictment or information setting forth adult criminal charges is filed within forty-five days of the juvenile’s arrest, the state may proceed with delinquency proceedings if for some reason the case is later transferred back to the juvenile division.

Here the indictment provided petitioner with sufficient notice of the delinquent act he was alleged to have committed. Because the indictment was filed within forty-five days of petitioner’s being taken into custody, the state’s obligation to bring delinquency charges within that period was essentially complied with.

Under section 39.05(7), Florida Statutes (Supp.1980), petitioner is entitled to have the adjudicatory hearing commence within ninety days of when he was taken into custody. This ninety-day time period was tolled during the period when petitioner was subject to the jurisdiction of the criminal division of the circuit court. Since forty-three days elapsed before petitioner was indicted and twenty-eight days elapsed after the case was transferred back to the juvenile division and before the order of dismissal was entered, for a total of seventy-one days, the state has nineteen days in which to commence an adjudicatory proceeding unless an extension is granted. Such 19-day period should commence to run when the final mandate is received below from this Court.

The decision of the district court, reversing the order dismissing the delinquency petition, is approved in result. The case is remanded with instructions that the petition for adjudication of delinquency be reinstated for further proceedings.

It is so ordered.

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

OVERTON, MCDONALD and SHAW, JJ., concur in result only.

      . Section 39.02(5)(c) provides in pertinent part:
      (c) A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the juris- ,, diction of the court as set forth in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury. When an indictment is returned, the petition for delinquency, if any, shall be dismissed; and the child shall be tried and handled in every respect as if he were an adult.

      . Section 810.02(2)(b) provides:
      (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.-084,. if, in the course of committing the offense, the offender:

      (b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.

      . The issue was not whether the district court had jurisdiction, but whether the state was enti-tied to invoke it.